Mary Wairimu Mwehuri v Kaingu Mzungu Mwandonga & Another

price when she was alive. There was no debt and the land had already been occupied and developed by the deceased. However the second defendant has forcefully invaded the suit property and is undertaking illegal construction works in order to obliterate the deceased’s investments and also physically annex the suit property, thus committing acts of wastage that cannot be remedy by pecuniary compensation. The plaintiff is a sister to the deceased and the duly pointed administrator ad litem of the estate of the deceased. She claims there is a sale agreement dated 28th January 2014 executed between the first defendant and the deceased and that the entire purchase price which was Kenya Shillings 550,000/- was paid by the deceased; that due to rapid appreciation of land in the area, the current market value has skyrocketed. She alleges that there is a massive unfinished two-bedroom residential home on the land; that the deceased had uninterrupted occupation of nearly a decade on the suit property. Now the second defendant is currently and speedily constructing a perimeter wall aimed at locking out the beneficiaries of the deceased's estate. A copy of the agreement dated 28th January 2014 between the first defendant and the deceased is annexed as Exhibit MMW2. Photographs of an unfinished building on the site and some unused building materials are also exhibited. The 1st Defendant’s Response. 3. The first defendant did not respond to the application. The Response of The Second Defendant 4. The second defendant filed a replying affidavit dated 4th June 2026 in which he claimed to have purchased the portion of land measuring 31 m by 25 meters to behaved off from title number Kilifi/Jimba/65 and not Title Number Kilifi/Jimba/1531. Nothing in event the plaintiff’s claim is time barred by statute for the reason that the completion date MLDELCLCE067/26-RLG/DF-15.05.26/FH-03.06.26/LH-05.06.26/DR-24.09.26F. Page 2 of 5

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for their agreement was 27th February 2014 and the limitation period within which the plaintiff ought to have brought an action to recover the suit property expired on 27th February 2026; that as at 28th January 2014 when the agreement is alleged to have been executed, the first defendant did not have any interest in the suit property capable of being passed to the deceased given that as that day was not registered in the first defendant’s name while Kilifi/Jimba/1531 did not exist. Upon its creation Kilifi/Jimba/1531 was registered in the name of Mzungu Mwadonga Kikobwe and not the first defendant; further, that Kilifi/Jimba/1531 is not subdivision of Kilifi/Jimba/65 but Kilifi/Jimba/1214; that no evidence has been tendered to show that the first defendant was a registered owner of Kilifi/Jimba/1531 or Kilifi/Jimba/65 or that he had any interest in the said parcels of land as at 28th January 2014. Consequently, it is urged that he had no the whole capacity to send to the deceased any portion of land out of title numbers Kilifi/Jimba/65; that on 30th April 2026 after undertaking due diligence the second defendant purchased from the first defendant for variable consideration without notice of any defect in title and took position of the suit property; that the suit land is comprised in Kilifi/Jimba/1584 and as at 30th April 2026, the first defendant was one of the registered owners thereof so the agreement dated 30 th April 2026 between the second defendant and the first defendant is valid, lawful, devoid of any fraudulent element; that consequently his entry onto the suit land and taking of possession is lawful. Submissions Of the Parties 5. The plaintiff filed submissions dated 2nd June 2026. The second defendant filed submissions dated 18 th June 2026. I have not seen any submissions on behalf of the first defendant. However, it is noteworthy that on 10th June 2026, Mbula and Company Advocates filed a Memorandum of Appearance under Protest for one Baraka Mzungu Mwandonga as the administrator of the Estate of the first defendant MLDELCLCE067/26-RLG/DF-15.05.26/FH-03.06.26/LH-05.06.26/DR-24.09.26F. Page 3 of 5

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Kaingu Mzungu Mwandonga, who is described as "deceased", only to confound the record when later on the same day in the afternoon the same firm filed another Memorandum of Appearance for the first defendant. I have considered the submissions of the plaintiff and the second defendant while preparing this ruling. Analysis And Determination. 6. The sole for determination before this court is whether the plaintiff deserves a grant of a temporary injunction. The principles applicable for the Grant of a temporary injunction while lay down long go in the case of Giella Vs Cassman Brown 1973 EA 358: that the applicant must establish a prima facie case, secondly he must establish that is the risk that you would suffer irreparable loss that cannot be compensated by way of damages if the orders sought are not granted. Thirdly, if the court is in doubt as to the first two principles, it will rule on a balance of convenience. 7. In the present case, the defendants do not seem to be disputing the fact that the deceased purchased the suit property and erected a house thereon and that the structure is still standing, incomplete, to date. What the plaintiff is interested in is the preservation of the suit property as it is without any drastic change on the ground determination of the suit. The issues that the defendants raise are weighty in nature and they should await resolution at another stage in the suit since they have direct bearing on the final determination of the substantive rights of the parties in the suit property. This court is persuaded that the plaintiff has raised a prima facie case. Also, if the first and second defendants proceed to alter the nature of the suit property, to dispose of it any further, there is risk that it may be put out of reach of the plaintiffs. In this court view, there is good ground to preserve the suit property pending the hearing and determination of the suit. Thus, the Application dated 14 th May 2026 is meritorious and MLDELCLCE067/26-RLG/DF-15.05.26/FH-03.06.26/LH-05.06.26/DR-24.09.26F. Page 4 of 5

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the same is granted in terms of prayer nos 4 and 5 thereof. The costs of the application shall be in the cause. 8. The parties shall file their lists, documents, witness statements and they shall appear before the court for pre-trial at a mention on 29th October 2026. Dated, signed and delivered at Malindi on this 24 th September 2026. MWANGI NJOROGE JUDGE, ELC MALINDI. MLDELCLCE067/26-RLG/DF-15.05.26/FH-03.06.26/LH-05.06.26/DR-24.09.26F. Page 5 of 5

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