Beyond Twenty Fourteen Investment Limited v Willy Kihara Njoki

3. THAT, this Honourable Court be pleased to order the issuance of a temporary injunction restraining the Defendant by himself and/or his agents, servants or employees or anyone authorized by him or acting on his behalf or otherwise howsoever from entering into, trespassing, occupying, conducting any works whatsoever or in any other manner interfering with the Plaintiff’s access to, quiet possession, occupation, user and/or enjoyment of all that parcel of land known as L.R.No.11261/35 situated in Ruiru, Kiambu County (Certificate of Title I.R.Number 88785) pending the hearing and determination of this suit. 4. THAT, the costs of this application be provided for. 2. The application is based on the grounds set out on the face of the application and the Affidavit in support thereto sworn on the even date by Lawrence Charles Kungu. 3. The Applicant avers that it is the lawful registered proprietor of land parcel number L.R. No. 11261/35 situated in Ruiru, Kiambu County (Certificate Title as I.R. Number 88785) (hereinafter, the “Suit Property.”) 4. The Plaintiff avers that it purchased the Suit Property by way of public auction through a financier’s exercise of its reserved statutory power of sale and the Plaintiff being the highest bidder, acquired possession of the said Suit Property. As a result, the Plaintiff contends that it paid twenty-five (25%) of the bid sum and obtained financing for payment of THIKA ELCLC E270 OF 2025 (RULING) Page 2

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the balance thereof from a financer who registered its interests for the payment of the facility by securing a charge against the Suit Property in its favour. 5. To support its claim, the Applicant produced a certificate of title indicating its proprietary interest on the Suit property as well as a charge instruments also registered as an entry in the Certificate of Title. 6. The Applicant, avers that its proprietary rights over the Suit Property is under threat of the Respondent who, on the 3 rd day of December 2025, at about 10:00 AM, through persons referred to as Kiama and Charles, with the authority of the Respondent, informed the Plaintiff that the Respondent has instructed them to stop the Plaintiff from erecting a perimeter wall on the Suit Property. 7. The Applicant goes further, avers that a tractor came into the Suit Property to scatter and strew its building materials placed on the Suit Property whilst armed persons issued threats of physical assault to anyone who dared venture into the Suit Property. 8. The Application is opposed by the Respondent’s Replying Affidavit Sworn on 27 January 2026 who states that he is the son of the late James Kanyotu who gifted him the Suit Property in 5 th December 2009. The Respondent contends that the Suit property, among others, was owned by a company known as Kangaia Coffee Estate Limited which THIKA ELCLC E270 OF 2025 (RULING) Page 3

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his father was the majority shareholder holding 99.9% of the shares therein. 9. In a rejoinder, the Plaintiff in a further Affidavit sworn by Lawrence Charles Kungu on 17th February 2026 aver that the impugned public auction that saw the Plaintiff acquire proprietary interests in the Suit Property, was conducted on 12 th November 2020, the Plaintiff validly and legitimately purchased the suit property. The Plaintiff, in the Affidavit, annexed exhibits LCK/1A, LCK/1B and LCK/1C, copies of the Certificate of Sale, Memorandum of Sale and Letter dated 2 nd July 2020 from Kenya Women Microfinance Bank to their appointed auctioneer. Analysis and determination 10. Upon perusal of the Notice of Motion dated the 11 th April, 2017 including the supporting and replying and further affidavits, as well as the annexures thereon and parties’ submissions, I find that the only issue in contention at this juncture is whether the Plaintiff is entitled to interim injunction pending the outcome of the suit. 11. In determine the foregoing, this Court is called to determine whether the Plaintiff/Applicant's Application meets the threshold for grant of temporary injunction. 12. From the wealth of jurisprudence from the various matters determined by this Court and those of equal and higher status, the conditions for granting a temporary injunction were as set out in the THIKA ELCLC E270 OF 2025 (RULING) Page 4

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precedent setting case of Giella vs Cassman Brown & Company Limited (1973) EA 358 has been affirmed. These conditions are that the party seeking an injunction must: (a) establish his case only at a prima facie level, (b) demonstrate irreparable injury if a temporary injunction is not granted, and (c) ally any doubts by showing that the balance of convenience is in his favour. 13. These conditions were reiterated in the Court of Appeal in Nguruman Limited vs Jan Bonde Nielsen & 2 Others (2014) КЕСА 606 (KLR). The Court held that the three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. 14. The first condition that the Plaintiff is required to surmount is that it has a prima facie case with a probability of success. The Court of Appeal in Mrao Ltd. Vs First American Bank of Kenya Ltd & 2 others (2003) KLR 125 "In civil cases, a prima facie case is a case in which on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter. A prima facie case is more than an arguable case. It is not sufficient to raise issues but the evidence must show an infringement of a right, THIKA ELCLC E270 OF 2025 (RULING) Page 5

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and the probability of success of the applicant's case upon trial. That is clearly a standard, which is higher than an arguable case." 15. The Applicant has produced exhibits marked LCK/1A, LCK/1B and LCK/1C in its further Affidavit being the Certificate of Sale, Memorandum of Sale and Letter dated 2 nd July 2020 from Kenya Women Microfinance Bank to their appointed auctioneer as regards to the Suit Property. Further, in its Affidavit in support of the Application herein, the Applicant has produced a certificate of title with clear entries indicating its proprietary interests as well as interests of the Kenya Commercial Bank, the chargee therein as the financier of the Suit Property. 16. Section 26 (10) of the Land Registration Act provides that Certificate of title to be held as conclusive evidence of proprietorship thus: “The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except— THIKA ELCLC E270 OF 2025 (RULING) Page 6

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(a)on the ground of fraud or misrepresentation to which the person is proved to be a party; or (b)where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme. (2) A certified copy of any registered instrument, signed by the Registrar and sealed with the Seal of the Registrar, shall be received in evidence in the same manner as the original.” 17. This Court finds that the Defendant/Respondent has failed to demonstrate that indeed they have any valid documentation to dispute the ownership of the Applicant to the Suit Property. 18. The Respondent only avers that he has been in occupation of the Suit property the same having been gifted to him by his father who owned the Suit property through a company known as Kangatia Coffee Estate Limited. The Respondent contends that there is a letter conferring the gift of the Suit Property to him from his father. However, in The Court’s record, the same is not produced. This therefore, cannot be a proof of ownership of property. 19. From the foregoing therefore, I find that at this interlocutory stage, the Plaintiff has established a prima facie case with a probability of success at the trial. THIKA ELCLC E270 OF 2025 (RULING) Page 7

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20. Secondly, a party seeking an interlocutory injunction must also demonstrate that they stand to suffer irreparable harm that cannot be compensated by way of damages. The Plaintiff has pleaded that it stands to suffer irreparable loss being deprived of any utility or opportunity to derive any benefit or make investments in its property unless this Court intervenes. 21. In the case of Paul Gitonga Wanjiku vs Gathuti Tea Factory Company Limited & 2 others [2016] eKLR Mativo J held; “The court in determining whether an interlocutory injunction should be granted takes into consideration the balance of convenience to the parties and the nature of the injury which the respondent on the one hand would suffer if the injunction was granted and it should ultimately turn out to be right and that which injury the applicant on the other hand might sustain if the injunction was refused and he should ultimately turn out to be right. The burden of proof that the inconvenience which the applicant will suffer if the injunction is refused is greater than that which the respondent will suffer if it is granted lies on the applicant”. 22. Further in the case of Justus Irungu Githae & 12 Others v Attorney General & 4 others [2016] eKLR, the court held that injury which was continuous in nature could not be quantified or assessed in terms of damages THIKA ELCLC E270 OF 2025 (RULING) Page 8

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23. The Plaintiff avers, and the same is not disputed by the Defendants, that the Defendant stormed the Suit Property and destroyed some of the building material placed on the Suit Property by the Plaintiff. These [persons, as alleged by the Plaintiff, used force and threats to gain access to the Suit Property to assert their ownership. 24. Having established that the Plaintiff has a Prima Facie case to warrant the injunction, this Court is of the view that they stand to suffer irreparable harm should the Court not grant the orders of injunction sought. 25. Finally, on whether the Applicant has met the third limb in the granting of interlocutory orders, the Court in Joseph Siro Mosioma vs Housing Finance Company of Kenya Limited & 3 Others (2008) eKLR, the Court reinforced the protection of specific rights over mere financial compensation by way of damages, by stating that: "On my part let me restate that damages are not automatic remedy when deciding whether to grant an injunction or not. Damages is not and cannot be a substitute for the loss, which is occasioned by a clear breach of the law. In any case the financial strength of a party is not always a factor to refuse an injunction. More so a party cannot be condemned to take damages in lieu of his crystallized right which can be protected by an order of injunction..." THIKA ELCLC E270 OF 2025 (RULING) Page 9

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26. On the issue of the balance of convenience, the court has to weigh the hardship to be borne by the Applicant if the injunction is refused against the hardship to be borne by the Respondent if the injunction is granted. 27. Looking at the evidence presented by the parties herein, the balance of convenience favours granting the interim injunction. In this case therefore, the balance of convenience tilts in favour of the Plaintiff/Applicant who has demonstrated that he acquired the suit property lawfully through the Public Auction process. 28. Accordingly, this Court makes the following orders: a. A temporary injunction is hereby issued restraining the Defendant by himself and/or his agents, servants or employees or anyone authorized by him or acting on his behalf or otherwise howsoever from entering into, trespassing, occupying, conducting any works whatsoever or in any other manner interfering with the Plaintiff’s access to, enjoyment quiet of L.R.No.11261/35 (Certificate of possession, occupation, all that parcel situated in Title of Ruiru, I.R.Number land user and/or known Kiambu 88785) as County pending the hearing and determination of this suit; and b. The Plaintiff/Applicant shall have costs of the application. THIKA ELCLC E270 OF 2025 (RULING) Page 10

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Dated, Signed and Delivered, virtually at Malindi this 1st day of October 2026. …………….………….. J. M. ONYANGO JUDGE In the presence of: 1. Mr. opundo for the Plaintiff/ Applicant 2. Mr. Ngala for Mr. Ruiru for the Defendant /Respondent 3. Court Assistant: Happy. THIKA ELCLC E270 OF 2025 (RULING) Page 11

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