Nasinya Peak Hotel Limited v Tinega & another

Plainti from the premises. They allege that the 2nd Defendant has failed to protect the Plainti against the 1st Defendants unwarranted attacks. 4. In a strongly worded response, the 2nd Defendant denies that there was any transfer of company shares or appointment of directors. She contends that her husband the late Samson Mokaya was seriously ill and was in no position to execute a lease as alleged. The Defendants challenge the Plaintis claim in toto and insist that no prima facie case has been proved to warrant grant of interlocutory orders. 5. The sole issue for determination is whether the orders sought are warranted. 6. The law on grant of interlocutory injunctions is set out under Order 40 Rule 1 (a) and (b) of the Civil Procedure Rules as follows: “ Where in any suit it is proved by adavit or otherwise – a. That any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or b. That the defendant threatens or intends to remove or dispose of his property in circumstances aording reasonable probability that the Plainti will or may be obstructed or delayed in execution of any decree that may be passed against the defendant in the suit; the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale removal, or disposition of the property as the court thinks t until the disposal of the suit or until further orders.” 7. The principles for grant of injunction are well settled by the locus classicus of Giella Vs Cassman Brown & Company Limited [1973] E.A. 358., where the court stated thus: “ First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.” 8. The court is thus required to determine whether the applicant has satised the three conditions for grant of injunction. In Nguruman Limited Vs Jan Bonde Nielsen & 2 the Court of Appeal had this to say on prima facie case ; “ The party on whom the burden of proving a prima facie case lies must show a clear and unmistakable right to be protected which is directly threatened by an act sought to be restrained, the invasion of the right has to be material and substantive and there must be an urgent necessity to prevent the irreparable damage that may result from the invasion” 9. While much was made of the fact that there was no transfer of shareholding or change of directors I nd that at this stage that is not the issue upon which the determination of this application turns. The greater issue is whether there was a tenancy relationship or at least a consensual occupation of the suit property. 10. I note that the Plainti has presented photographs of premises that are locked which lends credence to its argument that certain adverse actions have been taken against it. The Plainti has also produced a lease which is seriously contested. The validity or otherwise of this lease can only be determined after https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6175/eng@2026-09-24 2

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the matter is heard. However, the Plainti has also adduced alleged mpesa transactions numbers as evidence of rent payment. 11. On the face it, there appears to be evidence of at least possession on the part of the Plainti which was carrying out business in the suit premises. The evidence prima facie reveals that immediately before the acts complained of, the Plainti was in occupation of the suit premises and carrying on the hotel business therefrom. 12. Whether the alleged transfer of shares to the Plainti was valid and the precise legal nature and duration of the Plainti's tenancy are matters that cannot be nally determined at this interlocutory stage. What is material for purposes of the present application is that the Defendants appear to have altered the prevailing state of possession by locking and welding the gate, removing the Plainti's employees and barricading access to the premises. 13. These acts eectively dispossessed the Plainti otherwise than through an order of the court or other demonstrated lawful process. In a country governed by the Rule of Law, it is imperative that there is full compliance of the law even when a registered proprietor seeks to gain possession of his property. I therefore nd that the circumstances herein meet the stringent conditions for issuance of a mandatory injunction as set out in the case of Kenya Breweries Limited & Another v Washington O. Okeyo (2002) KECA. 14. Section 1a and 1b of the Civil Procedure Act call upon the Court to delve deeper into what the ends of justice would be in each case. So while I have found it necessary to grant the injunctive orders, it is essential that the matter be determined expeditiously so that the court deal with the substantive merits of the case. 15. In the end the application dated 4th August 2025 is allowed in the following terms; a. The Defendants are restrained from interfering with the Plaintis occupation of the suit property pending the hearing and determination of the suit. b. The orders shall remain in place for a period of one year to allow completion of the case failing which the injunctive orders shall lapse unless the delay in hearing the matter is occasioned by the Defendants in which case the court shall have discretion to extend the injunctive orders. c. A mandatory injunction is issued directing the Defendants to undo the acts complained of within 30 days from today d. The Plainti is to continue to remit rent. If the Defendants are unable to agree on modalities of rent payment, the rent should be deposited in a joint interest earning account. e. Costs shall abide outcome of the suit. DATED, SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 24TH DAY OF SEPTEMBER 2026. JUDY OMANGE JUDGE. In The Presence Of: Mr. Oyugi for 1st Defendant. Ms. Nyaga for Ash Osman. No appearance for 2nd Defendant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6175/eng@2026-09-24 3

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Peter – Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6175/eng@2026-09-24 4

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