Alnoor Hassam Ebrahim Kassam v Shahnaz Amin Amershi & Aleya Riyaz Tajdin Dhanji

came up for hearing, learned counsel for the applicant, Mr Otieno, submitted that the matter is part-heard and that the applicant has met the ingredients for the court to issue the reliefs sought as per Giella vs Cassman Brown as held (1973)EA 358. 2. On the other hand, learned counsel Miss Koki for the respondent opposed the application relying on a replying affidavit sworn on 30.1.2026 BY Shamira Riyaz Tajdin Dhanji. 3. Learned counsel submitted that the respondent is the sole registered owner of the Suitland to which the applicant is only seeking contribution, which is quantifiable loss or damage. Learned counsel submitted that the doctrine of lis pendous applies in this case; hence no need for interim orders. 4. In a rejoinder, Mr Otieno submitted that contribution is not quantifiable as alleged and that the 2 nd defendant is not the registered owner of the land, though he does not have a recent official search certificate to control the registration status of the land. MILIMANI ELC SUIT NO. 1019 OF 2016 2

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5. What the plaintiff claims in the further amended plaint dated 6.4.2022 are, inter alia, declaratory orders that he owns Lavington Valley Apartment E10 on LR No. 330/375, Celar Springs flat 5 block 8 (on LR 330/256), Royal Comfort Apartment on L.R 1870/VI/51 and Tulip Apartment APT 34 on LR No 28223/2, with the late Riyaa TR, Dhanji, now held and managed by the 1st defendant. 6. The plaintiff contends that the suit properties were jointly purchased the suit properties with the deceased, who during his lifetime acknowledged his contribution and investment in the purchase before the owner passed on 30.6.2014 as per his will dated 12.2.2006 and 13.5.2013 as his executor, but the 1 st defendant, despite this, after the demise has denied him access and/or acted to his detriment as a beneficial owner entitled to a share of rental income since 2007. 7. The plaintiff is asking the court to declare that the suit in trust for him at a share of 50%.The court record shows that there was a similar application for injunction dated 22.8.2016. MILIMANI ELC SUIT NO. 1019 OF 2016 3

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8. The court on 24.8.2016 declined to issue interim orders. It is not clear if the plaintiff ever prosecuted the same before the suit was dismissed for want of prosecution on 30.1.2019, when the suit was revived after the application dated 16.5.2019 was filed following a consent on 10.7.2019. 9. Learned counsel for the plaintiff on 13.10.2020 chose to abandon or withdraw the same but asked to pursue one dated 3.9.2019 for amendment of the plaint. On 26.1.2021, the application was allowed. The record shows that the defendant filed a preliminary objection dated 3.10.2006, which they later abandoned on 6.7.2021 and sought leave to file an amended determination. 10. The court record also shows that there was only one defendant and the other parties joined as interested parties pursuant to the application dated 15.9.2021, which was allowed on 13.10.2021. The record shows that the defendant’s initial lawyer ceased acting on 14.3.2022. MILIMANI ELC SUIT NO. 1019 OF 2016 4

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11. The record also shows that on the same date the court made an order that the interested party became the 2nd defendant, paving the way for the father amendment & the plaint to reflect the changes. The 2 nd defendant was granted leave to put in a defence by 30.6.2022. 12. The record shows that on 27.1.2025 Alnoor Hassam Kassam testified as PW 1, relying on witness statements dated 22.8.2016 and 17.8.2021 as his evidence in chief. PW1 was, however, stood down to serve all his list of documents contained in the list dated 17.8.2021. The matter could not proceed on 30.4.2025 for the plaintiff had filed a new set of documents and an amended witness statement on the eve of the hearing. 13. The record shows that PW 1 resumed his testimony on 11.6.2025 relying only on an amended witness statement dated 23.4.2025 as his evidence in chief. He also produced documents appearing on his trial bundle of pages 17-115 except at page 44. 14. PW 1 was also cross-examined by the 2 nd defendant. He admitted that the will did not bequeath him anything, though he was the executor. PW 2 was Moaze Kaba while MILIMANI ELC SUIT NO. 1019 OF 2016 5

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PW3 was Rajinder Kaur Vadvae. It was after PW 3 was reexamined that learned counsel for the plaintiff sought an adjournment to call the last witness to produce the documents objected to by the 2nd defendant. 15. told At the further hearing on 2.12.2025, the court was that the instant application was filed due to intervening events. The court had to adjourn the hearing due to the application as well as the impending transfer of the presiding judge. 16. Having set the background of this case, the question is whether the plaintiff is entitled to interim orders of injunction in the manner alluded to in the application. It is not disputed that the suit is part heard. It is also not disputed that the so-called intervening circumstances prompting the filing of a fresh application for injunction midstream the hearing have not been satisfactorily addressed or disclosed, more so through a recent official search certificate to show that the suit property is in any danger of dissipation as per section 63 (a) of the Civil Procedure Act and read together with Order 40 of the Civil Procedure Act. MILIMANI ELC SUIT NO. 1019 OF 2016 6

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17. A party seeking a temporary injunction must demonstrate a prima facie case. In Mrao Ltd Vs First American Bank of Kenya Ltd.( 2003) KECA 175 (KLR) a prima facie case is established where a right of interest has been infringed, to call for a rebuttal from the opposite side. 18. A party needs to establish a title. A court does not conduct a mini-trial to establish one. In this suit, having looked at the supporting affidavit vis-à-vis the document relied upon by the plaintiff at contestation as to whether there were terms or not, without going to the merits of the case, I think the applicant has established a prima facie case. 19. On irreparable loss or damage, the same has to be real, apparent, imminent and incapable of monetary compensation, as held in Nguruman Ltdd. Vs Jan Bonde Nielsen & others ( 2014 ) KECA 606 (KLR). The applicant’s claim as alleged by the 2 nd defendant is quantifiable in monetary terms. The plaintiff admits that he is not in occupation of the suit properties. The applicant MILIMANI ELC SUIT NO. 1019 OF 2016 7

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also abandoned the earlier application for temporary injunction. 20. The 2nd defendant has invoked the doctrine of lis pendes In Lakeview Investment Ltd. Vs Ndege & Others ( Civil Appeal E528 of 225 (2026) KECA 1542 KLR ( 31ST July 2026) (Judgement) the court cited Naftali Rathi Kinyua vs Patrick Thuita Chege & Another (2015) KECA 911 KLR that lis pendens is a common law principle which runs with the suit so that it application depend on the outcome of the suit, and that a transaction entered into between the other party to the suit and a third party may be set aside. 21. The court, in the circumstances, finds that the plaintiff has failed to discharge the burden to prove there will be irreparable loss or damage in the absence of a temporary injunction. 22. As to the balance of convenience, the same was defined in Pius Kipchirchir Kogo Vs Frank Kimeli Tenai ( 2018 ) KEELC 2424 (KLR) the comparable inconvenience to the two parties what is before the court in a claim for declaration of trust agreement suit MILIMANI ELC SUIT NO. 1019 OF 2016 8

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properties which, from the judgment of the succession cause No.1331 of 2016 dated 4.8.2023, were confirmed in favour of the 2nd defendant except flat No. D9 situated on LR No. 330 /375 until this suit is heard and determined. The plaintiff was a protestor in that judgment. Since 2023, there is no evidence that the appealed against the same and/or moved to this court for prohibitory orders against the rest of the suit properties. 23. The court finds that, in the absence of other exceptional circumstances, the status and subsisting over the suit properties should prevail. 24. In any event the prevailing jurisprudence on trust as held in Mutia vs Maitha ( Civil Appeal 66 of 2010) (2026) KECA 1540 (KLR) ( 31ST July 2026) Judgement once proved by the plaintiff to the satisfactory of the court regarding the sale agreement and document to found existence of trust, would leave no option but the court to invoke the doctrine of equity to defeat a registered title as held Shah & Tile Ltd. & Others (2023) KESC 106 (KLR) and in Dias property Ltd & 5 Others vs Githae & 10 others (2024) KECA 318 KLR. MILIMANI ELC SUIT NO. 1019 OF 2016 9

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25. Therefore, the application dated 21.11.2025 is dismissed. 26. It is so dismissed with no order as to costs. 27. Parties to take directions on the manner of proceeding with the part-heard matter. 28. Orders accordingly. DATED, SIGNED AND DELIVERED ON 23 RD SEPTEMBER,2026 …………………………. HON C.K NZILI JUDGE In the presence of ; Mr. Otieno for the plaintiff Koki for 2nd defendant 1st defendant -absent MILIMANI ELC SUIT NO. 1019 OF 2016 10

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