Wanjau Kirima alias Waweru Kirima v Agnes Wangari Kirima & 3 others

………………………………………..INTERESTED CLAIMANT PARTY/CROSS RULING 1. Before this Court for determination are two applications. The first application is a Notice of Motion dated 4 th March 2026, brought under Sections 1A, 1B and 3A of the Civil Procedure Act and Orders 40 Rule 1 and 51 Rule 1 of the Civil Procedure Rules, in which the Plaintiff/Applicant seeks the following orders: a. Spent. b. Pending the hearing and determination of this application, the 1st and 2nd Respondents be compelled to disclose full particulars of all bank accounts, paybill numbers or other repositories in which rental income from the suit properties is received, deposited or otherwise held. c. Upon such disclosure and pending the hearing and determination of this application and the suit, a Mareva injunction do issue forthwith restraining whether otherwise the by 1st and themselves, howsoever, 2nd Respondents, their from agents or withdrawing, transferring, dissipating or otherwise dealing with the Plaintiff’s proportionate share of rental income held in the disclosed accounts in respect of all three properties. ELC CIVIL SUIT NO. E113 OF 2026 2

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d. In the alternative to prayer 3 and without prejudice thereto, this Honourable Court be pleased to issue such preservatory orders as it deems just and expedient to secure and conserve the Plaintiff’s proportionate share of rental income arising from the suit properties. e. The Honourable Court be pleased to issue an order establishing a joint interest-bearing escrow account into which all rental income proportionate to the Plaintiff’s share arising from the suit properties shall be deposited pending determination of this application and the suit. f. The 1st and 2nd Respondents be ordered to immediately render accounts on the occupancy and rental collections for the suit properties from January 2011 to date. g. The 1st and 2nd Respondents be directed to forthwith, upon opening of the escrow account, deposit or otherwise cause to be paid into the escrow account the Plaintiff’s share of the monthly rental income from the suit properties. h. Any other relief that this Honourable Court may deem just and equitable in the circumstances. ELC CIVIL SUIT NO. E113 OF 2026 3

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i. THAT the costs of the application be borne by the 1st and 2nd Respondents on full indemnity basis. 2. The application is based on the grounds appearing on its face together with the supporting affidavit of Wanjau Kirima alias John Waweru Kirima, sworn on even date THE APPLICANT’S CASE 3. The Applicant averred that he is a co-proprietor of the following properties, holding the respective specified shares: a) 6A Pangani North View Road/Muranga Road (L.R No. 209/2389/165, Original L.R No. 209/2389/1), 1/3; b) 6B Duruma House (L.R. No. 209/1836), 1/3; and c) 6C Moktah Daddah (L.R. No. 209/4348), 1/5. 4. He averred that the remaining co-proprietors are the Estate of Gerishon Kamau Kirima (deceased), which holds 1/3 interests in 6A and 6B, and the Estate of Fredrick Kamau Kirima (deceased), which holds 1/3 in 6A and 6B and 1/5 interest in 6C. 5. He further averred that the 1st and 2nd Respondents, as administrators of the Estate of Gerishon Kamau Kirima (deceased), have continuously collected and retained the entire rental income from the suit properties without remitting his lawful entitlement. He asserted that, in an effort to recover his lawful share of the rental income, he appointed Masterways Real Estate agents to collect his share of the rent from the properties but the Respondents' representatives have obstructed his agents and denied them ELC CIVIL SUIT NO. E113 OF 2026 4

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access to the properties, thereby frustrating his efforts to realise his entitlement to the rental income. 6. He acknowledged that the 3 rd Respondent manages Plot No. 6A Pangani North View Road/Muranga Road (L.R. No. 209/2389/165) pursuant to a Court order dated 19th December 2012. 7. He contended that the collection of rental income is continuous and ongoing and that, with each passing month, additional rent due to him accumulates and is withheld, thereby exposing him to the risk of dissipation of the funds. He further contended that despite demands for payment and the Respondents' request for accounts, the Respondents have refused to comply. He asserted that the Respondents' continued collection of rent without remitting his lawful share is causing him irreparable loss, including the deprivation of income to which he is lawfully entitled. In conclusion, he urged the Court to allow the application as prayed. THE 1ST AND 2ND RESPONDENTS’ CASE 8. The 1st and 2nd Respondents filed a replying affidavit sworn on 18th May 2026 by Ann Wangari Kirima in opposition to the application. 9. The deponent acknowledged that she and her co- administrators are the appointed administrators of the Estate of Gerishon Kamau Kirima pursuant to a grant issued in High Court Succession Cause No. 1298 of 2011, which is pending determination. She averred that her late father purchased the suit properties when the Applicant was a ELC CIVIL SUIT NO. E113 OF 2026 5

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minor and lacked the legal capacity to acquire title to land. She denied that the Applicant purchased or ever took possession of the suit properties. 10. She set out the historical particulars of the registration of the properties as follows:  L.R. No. 209/2389/1 (I.R. 5916), now known as L.R. No. 209/2389/165, was transferred to Gerishon Kamau Kirima, John Waweru Kirima and Fredrick Kirima as tenants in common in equal shares on 2nd August 1973.  L.R. No. 209/1836 is dated 18th July 1972, while L.R. No. 209/4348 (I.R. 10039) was transferred in favour of Gerishon Kamau Kirima (deceased), Fredrick Kamau (deceased) and Samuel Ndei Kirima, and registered on 22nd January 1982. 11. She contended that the Applicant was registered on the title merely as a trustee for the benefit of her deceased father and his family. Consequently, she argued that the Applicant has lost any claim to the suit properties due to non-possession and that any claim arising therefrom is statute-barred. 12. She argued that the Applicant was aware that their father owned those properties and that she neither sought any benefits nor collected rent from the suit properties during their deceased father's lifetime. 13. She argued that her late father practised Kikuyu customary law and believed that including his sons in the titles would secure his family’s interests. She contended that, under ELC CIVIL SUIT NO. E113 OF 2026 6

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Kikuyu customary law, boys are included in titles as trustees for the benefit of their father and his family. She further asserted that granting the application would perpetuate discrimination against the girl child, as reflected in Kikuyu customary law. 14. She argued that the application is without merit, is an abuse of the Court process, and should be dismissed with costs. THE RESPONSE 15. In a further affidavit dated 15 th June 2026, the Applicant averred that the documents relied on by the 1 st Respondent confirm that the suit properties were transferred to Gerishon Kamau Kirima, John Waweru Kirima and Fredrick Kirima as tenants in common in equal shares. 16. He contended that his age at the time of registration alone was insufficient to establish that he was registered as a trustee, and added that he never executed any declaration of trust in favour of the deceased, his children, or his estate. The application was canvassed by written submissions. THE APPLICANT’S SUBMISSIONS 17. The Applicant filed his submissions dated 16 th June 2026. 18. On behalf of the Applicant, Counsel identified the following issues for the Court’s determination: a) Whether the questions of trust, contribution, minority, customary law and limitation of time raised by the 1st and 2nd Respondents in her replying affidavit can be determined at the interlocutory stage; ELC CIVIL SUIT NO. E113 OF 2026 7

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b) Whether the Plaintiff has established a prima facie case with a probability of success; c) Whether the conditions for a Mareva injunction and preservatory orders are satisfied; and d) Whether the orders for disclosure, accounts and escrow ought to issue. 19. Regarding the first issue, Counsel relied on Nguruman Ltd v Jan Bonde Nielsen & 2 others (2014) eKLR to submit that the Court should not conduct a mini-trial or make conclusive findings on contested facts at the interlocutory stage. Counsel argued that the issue of trust is a question of fact that should be pleaded and proved. Regarding limitation of time and adverse possession, Counsel contended that the application is not a claim for recovery of land under Section 7 of the Limitation of Actions Act but seeks disclosure and rendition of accounts. 20. Regarding the second issue, Counsel relied on Mrao Ltd v First America Bank of Kenya Ltd & 2 others (2003) KLR 125 to submit that the Applicant’s registration as coowner for over 52 years establishes a prima facie case. Counsel further submitted that the Applicant’s title can only be impeached on the grounds set out in Section 26(1) of the Land Registration Act. Counsel argued that the Respondents have neither sought rectification of the register nor cancellation of the Applicant’s name from the title document. To support this point, Counsel relied on Elijah Makeri ELC CIVIL SUIT NO. E113 OF 2026 8

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Nyangwara v Stephen Mungai Njuguna & another (2013) eKLR. 21. Counsel relied on Section 91 of the Land Registration Act to contend that the Applicant, as a co-tenant, is entitled to his share of the income derived rom the common property. 22. Regarding the fourth issue, Counsel submitted that the rental income is at risk of dissipation, as the amounts received and the accounts are within the knowledge and control of the Respondents. Counsel argued that damages would not constitute an adequate remedy, because if the income is dispersed month by month over the life of the suit, there will be no identifiable fund against which the decree can be enforced. Counsel urged the Court to prevent the suit from being rendered nugatory. 23. On the balance of convenience, Counsel submitted that the disputed proportion should be secured in an interest-bearing account pending the determination of the suit. Alternatively, the Court may appoint a receiver of any property and direct how the income should be received and held. Counsel argued that an escrow account would preserve the funds and safeguard the respective interests of the parties. 24. Counsel invoked Sections 79, 82 and 83 of the Law of Succession Act to submit that the Respondents have a duty to disclose and render full and accurate accounts of the deceased's assets and liabilities. 25. In conclusion, Counsel urged the Court to allow the application as prayed. ELC CIVIL SUIT NO. E113 OF 2026 9

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THE 1ST AND 2ND DEFENDANTS SUBMISSIONS 26. The 1st and 2nd Defendants filed their submissions dated 19 th June 2026. On their behalf, Counsel submitted that, apart from the title document, the Applicants had produced no evidence of any contribution towards the purchase price and had not disputed the allegation that they were registered as trustees for the benefit of their deceased father's estate. 27. Counsel raised preliminary objections as to the competence of the applications. 28. Counsel contended that the application dated 4 th March 2026 is incompetent as it does not mention any title document in the body of the orders sought. To support this point, Counsel relied on Kinda & 2 others v Baya & another (2026) KECA 1070 (KLR) and Independent Electoral and Boundaries Commission & another v Mule & 3 others (2014) KECA 890 (KLR). 29. Regarding the application dated 24th April 2026, Counsel submitted that the Interested Party had not advanced any substantive claim capable of being ventilated at the hearing of this suit. 30. Counsel identified the following issues for the Court’s determination: a) Whether the Plaintiffs have met the criteria for the grant of interlocutory injunction; and b) Whether the orders sought should be granted. 31. Regarding the first issue, Counsel relied on Giellla v Cassman Brown and Co Ltd (1973) EA 358 to submit on ELC CIVIL SUIT NO. E113 OF 2026 10

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the principles governing the grant of an injunction. Counsel also relied on Kenya Breweries Limited & Another v Washington O Okeya (2002) KECA 284 (KLR) to submit on the principles governing the grant of a mandatory injunction. 32. Counsel submitted that the Applicants have not in their pleadings and circumstances submissions warranting demonstrated the grant of any a special mandatory injunction. Counsel further submitted that the Applicant in the application dated 4th March 2026 has not met the criteria for a Mareva injunction as set out in Fourie v Le Roux & Ors (2007) UKHL 1 ALL ER 1087, Halsbury Laws of England 3rd Edition, and in Mareva Campania Naviera SA v International Bulk Carriers. 33. Counsel relied on the supporting affidavits to submit that the Applicants have not established a prima facie case with a probability of success. 34. Regarding irreparable loss, Counsel submitted that the Applicants' interest is limited to the collection of rental income, which is quantifiable in monetary terms and can therefore be claimed as damages within the suit. Counsel further submitted that the Applicants have not claimed that the suit properties are being waste by the Respondents or offered an explanation why they never assumed possession since 1973 when the title was acquired. Counsel argued that there is was no justification for the delay in filing this suit which is statute barred. ELC CIVIL SUIT NO. E113 OF 2026 11

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35. Counsel submitted that the balance of convenience tilts in favour of the Respondents who represent all the children of Gerishon Kamau Kirima deceased. 36. In conclusion, Counsel urged the Court to dismiss the application with costs. 37. The second application is a Notice of Motion dated 24 th April 2026, brought under Order 40 Rule 1, Order 51 Rule 1 of the Civil Procedure Rules, and Sections 1A, 1B and 3A of the Civil Procedure Act in which the Cross-Applicant seeks the following orders: j. THAT, pending the hearing and determination of this suit, the Defendants/Respondents 1st, be 2nd, and 3rd ordered and compelled by this Honourable Court to disclose the monthly rental income generated by the premises erected on the parcels of land known as 209/2389/165 (Original L.R No. 208/2389/1) – Pangani Estate, L.R. No. 209/1836 - Duruma Road, and L.R. No. 209/4348 – Moktar Daddah, and to provide full particulars of all bank accounts, pay bill numbers, or any other repositories where the said monthly rental income related to the premises is received, deposited, or otherwise held by the Defendants/Respondents. k. THAT this Honourable Court be pleased to order ELC CIVIL SUIT NO. E113 OF 2026 the 1st, 2nd, and 3rd 12

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Defendants/Respondents to forthwith be paying to the Cross Claimant/Applicant the share due to the beneficiaries of the Estate of Fredrick Kamau Kirima in monthly rental income in respect to the properties known as L.R No. 209/2389/165 (Original L.R No. 209/2389/1) - Pangani Estate, L.R No. 209/1836 – Duruma Road and L.R No. 209/4348 – Moktar Daddah pending the hearing and determination of the suit or until further orders of this Court. l. THAT in the alternative and without prejudice to the above, this Honourable Court be pleased to order and direct that an interest bearing escrow account be opened in the names of the 1st, 2nd and Defendants/Respondents and the Plaintiff, the 3rd Cross Claimant/Applicant herein and all the monthly rental income in respect of the premises erected on land parcels known as L.R No. 209/2389/165 (Original L.R No. 209/2389/1) – Pangani Estate, L.R. No. 209/1836 – Duruma Road and L.R No. 209/4348 – Moktar Dadda be deposited into the said Bank Account pending the hearing and determination of this suit or further orders of this Court. m. THAT this Honourable Court be pleased to order the 1st and 2nd Defendants/Respondents ELC CIVIL SUIT NO. E113 OF 2026 13

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to render and file in court the statement of accounts in respect to all monthly rental collected in respect of the parcels of land known as L.R No. 209/2389/165 (Original L.R No. 209/2389/1) – Pangani Estate, L.R No. 209/1836 – Duruma Road and L.R No. 209/4348 – Moktar Daddah since January 2011 to the date of the Court order herein. n. THAT in the alternative, this Honourable Court be pleased to appoint an independent Estate Agent to collect the monthly rental income from the parcels of land known as L.R No. 209/2389/165 (Original L.R No. 209/2389/1) – Pangani Estate, L.R No. 209/1836 – Duruma Road and L.R No. 209/4348 – Moktar Daddah and to either share the said monthly rent to the parties in accordance with their respective shareholding or as directed by this Honourable Court. o. THAT this Honourable Court be pleased to make any other order it may consider appropriate under the circumstances so as to meet the ends of justice thereof. p. THAT the costs of the application be in the cause. ELC CIVIL SUIT NO. E113 OF 2026 14

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38. The application is based on the grounds appearing on its face together with the supporting affidavit of Catherine Njeri Macharia, sworn on even date THE APPLICANT’S CASE 39. The Applicant averred that the suit properties are registered in the names of the late Gerishon Kamau Kirima, the late Fredrick Kamau Kirima, and John Waweru Kirima as tenants in common, in the specified shares. 40. She further averred that she is one of the administrators and beneficiaries of the estate of Fredrick Kamau Kirima together with her children, pursuant to the Certificate of Confirmation of Grant issued in Succession Cause No. 1273 of 2014. Accordingly, she contended that they are the lawful owners of the shares in the suit properties as set out in the Certificate of Confirmation of Grant. 41. She contended that the 1st and 2nd Defendants are the Administrators of the Estate of Gerishon Kamau Kirima, who was a co-owner of the suit properties. 42. She further argued that the 1st and 2nd Defendants have been collecting all rental proceeds from the suit properties exclusively without remitting the share due to the Applicant and the beneficiaries and without rendering any accounts in respect thereof. 43. She maintained that she and her children continue to suffer financial deprivation and that the Defendants continue to act in breach of the orders issued in Succession, Cause No. 1273 of 2014. ELC CIVIL SUIT NO. E113 OF 2026 15

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44. In conclusion, she urged the Court to allow the application as prayed. THE 1ST AND 2ND RESPONDENTS’ CASE 45. The 1st and 2nd Respondents filed a replying affidavit sworn by Ann Wangari Kirima in opposition to the application. 46. The deponent averred that the late Fredrick Kamau Kirima was her brother, born on 16th July 1972. She denied that he ever purchased, took possession of, or exercised control over the suit properties, asserting that the properties were acquired while he was a minor. 47. She argued that the suit properties were transferred to Gerishon Kamau Kirima, John Waweru Kirima, and Fredrick Kirima as tenants in common in equal shares on 2/08/1973. She maintained that when L.R No. 209/1836 was registered in 1973, the late Fredrick Kirima was barely a year old and lacked legal capacity to acquire title. She contended that he was registered merely as a trustee for the benefit of her deceased father and the broader family. She further contended that L.R No. 209/4348 (IR 100038) was registered on 2/8/1974, in favour of Gerishon Kamau Kirima (deceased), Fredrick Kamau Kirima (deceased), and John Kamau Kirima by which time Fredrick Kamau Kirima was two years old and could not have raised the purchase price. 48. Without prejudice to the foregoing, she argued that the Applicant’s claim is statute-barred as neither the late Frederick Kamau Kirimanor the Applicant ever took possession of the properties for 54 years. ELC CIVIL SUIT NO. E113 OF 2026 16

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49. She argued that neither the Applicant nor her late husband demanded rent or asserted proprietary rights during the lifetime of Gerishon Kamua Kirima, as all parties recognised that the properties belonged solely to their late father. 50. She further argued that her late father practised Kikuyu customary law, under which sons are named as trustees on titles to secure the family’s assets. She asserts that granting the application would perpetuate discrimination against the girl child, as reflected in Kikuyu customary law. 51. She argued that the application lacks merit, constitutes an abuse of the Court's process, and should be dismissed with costs. THE RESPONSE 52. In a supplementary affidavit dated 8 th June 2026, the Applicant averred that the late Fredrick Kamau Kirima was a stepbrother to Anne Wangari Kirima and that there exists extreme hostility between the step families. She argued that the 1st and 2nd Respondents are only mandated to administer the shares registered in the name of Gerishon Kamau Kirima and not the shares of the two co-owners. She reiterated that she and her children are the legitimate owners of the shares as captured in the certificate of confirmation of grant. 53. The application was canvassed by way of written submissions. THE CROSS CLAIMANT/APPLICANT’S SUBMISSIONS 54. The Applicant filed her submissions dated 12 th June 2026. ELC CIVIL SUIT NO. E113 OF 2026 17

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55. On behalf of the Applicant, Counsel reiterated the contents of the supporting affidavit. 56. Counsel submitted that no title document was produced showing that the late Fredrick Kamau Kirima was registered as a trustee. Counsel further submitted that the burden of proving the existence of a trust rests on the 1 st and 2nd Defendants. It was submitted that, upon attaining the age of majority in 1990, the late Fredrick Kamau Kirima remained a registered co-owner of the suit properties without challenge, and that, upon his demise, his proprietary shares lawfully devolved to his wife and children. Counsel further submitted that the 1st and 2nd Defendants never challenged the late Fredrick Kamau Kirima's co-ownership during his lifetime or during the lifetime of the late Gerishon Kamau Kirima. 57. Counsel further highlighted ongoing hostilities between the step-families and accused the 1 st and 2nd Defendants of unlawful conduct. Counsel maintained that, as administrators of the Estate of Gerishon Kirima, the 1 st and 2nd Defendants are limited to administering the estate's assets and have no authority to administer or deal with the independent proprietary interests of co-owners. Counsel further asserted that the Court must intervene to restrain the alleged unlawful conduct. ANALYSIS AND DETERMINATION 58. Having considered the applications, the responses and the rival submissions, the following issues arise for determination: ELC CIVIL SUIT NO. E113 OF 2026 18

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a) Whether the Applicants have met the threshold for the grant of an interlocutory injunction. b) Whether the Applicants have satisfied the threshold for the grant of mandatory injunction: and c) Whether the Court should issue preservatory orders to safeguard the rental income from the suit properties pending the determination of the parties' respective proprietary interests. 59. Regarding the first issue, the principles governing the grant of an injunction were set out in the case of Giela v Cassman Brown (1973) EA 358, as follows: a) First, the applicant must show a prima facie case with a probability of success. b) Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable harm which would not be adequately compensated by an award of damages. c) Thirdly, if the court is in doubt, it will decide an application on a balance of convenience. 60. The first issue for determination is whether the Applicants have established a prima facie case. A prima facie case was defined in Mrao Ltd v First American Bank of Kenya and 2 others, (2003) KLR 125 as follows: "A Prima facie case in a civil application includes, but is not confined to, a genuine and arguable case. ELC CIVIL SUIT NO. E113 OF 2026 It is a case which, on the material 19

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presented to the court, a tribunal properly directing itself will conclude there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter”. 61. In the matter at hand, it is not in dispute that the Plaintiff and the late Fredrick Kamau Kirima are registered owners of the suit properties. 62. The Respondents do not dispute that the Plaintiff and the late Fredrick Kamau Kirima (deceased) appear as a registered proprietors in the titles of the suit properties. However, they dispute the nature of the interest in those properties. They argue that the Plaintiff and the late Fredrick Kamau Kirima were minors when the suit properties were registered. They also claim that the Plaintiff and the late Fredrick Kamau Kirima lacked legal capacity to acquire the properties and were merely registered as trustees for their father and the broader family. They further contend that neither Fredrick Kamau Kirima (deceased) nor the Applicant ever possessed the properties or collected rent during their father's lifetime, and that any claim is statute-barred. 63. The Respondents dispute the nature of the Plaintiff’s and the Cross Applicant’s interest in the suit properties. They argue that, although the Plaintiff and the late Fredrick Kirima were registered as proprietors, they held no beneficial interest because, at the time of registration, they were merely trustees due ELC CIVIL SUIT NO. E113 OF 2026 to their age. That contention raises a 20

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substantive question of ownership and beneficial interest, which cannot properly be determined at this interlocutory stage. 64. At this stage, the Court is not required to determine the issues that will be canvassed at trial. The Court is aware that at the interlocutory stage, it is not required to make any definitive conclusion on the matters in dispute. 65. In Mbuthia vs Jimba Credit Corporation Ltd [1988] KLR, the Court held that: “In an application for interlocutory injunctions, the court is not required to make final findings of contested facts and law, and the court should only weigh the relative strength of the parties' cases.” 66. Similarly, in Edwin Kamau Muniu –vs- Barclays Bank of Kenya Ltd, NBI HCCC No.1118 of 2002, the Court held that: “In an interlocutory application, the court is not required to determine the very issues which will be canvassed at the trial with finality. All the court is entitled to at this stage is whether the Applicant is entitled to an injunction sought on the usual criteria.” 67. The issues raised go to the heart of the dispute and cannot be conclusively determined on affidavit evidence at the interlocutory stage. Whether the registration conferred an absolute proprietary interest, or whether the Plaintiff and the ELC CIVIL SUIT NO. E113 OF 2026 21

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deceased held the properties in trust, will require a full trial, at which the parties will have an opportunity to present evidence and have the same tested by cross-examination. 68. Similarly, the Respondents' argument regarding limitation raises substantive issues that cannot be conclusively determined on the basis of affidavit evidence. Based on the evidence on record, I find that the Applicant has established a prima facie case with a probability of success. 69. Regarding the second limb, the Applicants must demonstrate that they will suffer irreparable harm that cannot be compensated by an award of damages. In Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR, the Court of Appeal held that: “On the second factor, that the applicant must establish that he “might otherwise” suffer irreparable injury which cannot be remedied by damages in the absence of an injunction, is a threshold requirement, and the burden is on the applicant to demonstrate, prima facie, the nature and extent of the injury. Speculative injury will not do; there must be more than an unfounded fear or apprehension on the part of the applicant. The equitable remedy of temporary injunction is issued solely to prevent grave and irreparable injury; that is, injury ELC CIVIL SUIT NO. E113 OF 2026 that is actual, substantial and 22

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demonstrable; injury that cannot “adequately” be compensated by an award of damages. An injury is irreparable where there is no standard by which their amount can be measured with reasonable accuracy or the injury or harm is such a nature that monetary compensation, of whatever amount, will never be adequate remedy.” 70. The Applicants assert that the 1st and 2nd Respondents have been collecting rental income from the suit properties without accounting or remitting their share for a considerable period. They contend that unless the Court intervenes, they will continue to be deprived of their entitlements, and the Respondents may continue to exclusively appropriate the rental income. 71. The Respondents, on the other hand, deny that the Plaintiff and the estate of the late Fredrick Kamau Kirima have any beneficial interest in the properties and contend that the Applicant has no entitlement to the rental income. They further argue that no prejudice can arise because the Plaintiff and the deceased never enjoyed the rental income during their father’s lifetime. 72. Although rental income is quantifiable in monetary terms, this suit concerns ongoing rental income derived from commercial properties over a prolonged period. If the Respondents continue to collect and spend these funds exclusively while the suit remains pending, there is a risk of ELC CIVIL SUIT NO. E113 OF 2026 23

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dissipation of the funds, which could render any eventual judgment nugatory. 73. Regarding the balance of convenience, I find that it lies in favour of preserving the rental income pending the determination of the parties respective rights and interests. 74. Regarding the second issue, the Applicants seek mandatory orders for the disclosure of rental income, the rendition of accounts, the remittance of rent, and the appointment of an independent estate agent. These are, in substance, mandatory injunctions. 75. The standard for granting mandatory injunctions at the interlocutory stage is higher than that applicable to prohibitory injunctions. 76. In Kenya Breweries Ltd & another v Washington O. Okeyo (2002) eKLR, the Court of Appeal held that a mandatory injunction at the interlocutory stage should be granted only in clear cases where the Court is satisfied that the matter should be decided immediately, or where the issue is straightforward and can be easily remedied. 77. Similarly, in Locabail International Finance Ltd v Agro Export (1986) 1ALLER 901, the court observed that a mandatory injunction should not normally be granted on an interlocutory application unless special circumstances exist, and only if the court has a high degree of assurance that the Applicant will succeed at trial. 78. In the present case, the Court is not persuaded that the application falls within those exceptional circumstances. ELC CIVIL SUIT NO. E113 OF 2026 24

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Orders for disclosure of accounts, payment of rent, or the appointment determine of or an alter estate the agent parties' would in respective substance rights and obligations before those rights have been finally determined. In the absence of supporting evidence, the Court declines to make that determination. 79. This Court is mindful that the suit properties are incomegenerating assets. If the rental income continues to be collected and dissipated during the pendency of the suit, there is a real risk that the successful party may ultimately be deprived of the fruits of the judgment. The overriding objective at this stage is to preserve the subject matter of the suit pending its hearing and determination. 80. The establishment of an interest-earning escrow account would provide a mechanism for preserving the disputed rental income without finally determining the parties' respective proprietary entitlements. 81. In the result, and for the foregoing reasons, the application partially succeeds on the following terms: a) Pending the hearing and determination of the suit, an interest-earning escrow account shall be opened within thirty days in the joint names of the advocates for the plaintiffs, the 1 st, 2nd and 3rd Defendants and the Cross-Claimant. b) All rental income generated from the suit properties from the date of this ruling shall be deposited into the said account pending the ELC CIVIL SUIT NO. E113 OF 2026 25

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hearing and determination of the suit or until further orders of this Court. d) The costs of the application shall abide the outcome of the suit. RULING SIGNED, DATED, AND DELIVERED VIA MICROSOFT TEAMS THIS 22nd DAY OF SEPTEMBER, 2026. ………………………… HON. T. MURIGI JUDGE IN THE PRESENCE OF: Malanga holding brief for Kivuva for the 1 st – 4th Respondents Migele holding brief for Dr Saka for the Plaintiff/Applicant Mwangi for the Cross Claimant Vena-Court Assistant ELC CIVIL SUIT NO. E113 OF 2026 26

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