Kinya Kimani v Vajomo General Suppliers Limited & Rospella Jemutai Cherop

(d) (e) Respondents/Defendants their servants, by and/or themselves, agents from entering, building and/or depositing any building materials or in any manner dealing with land parcel Njoro/Ngata Block 1/2095 (New Kiambu). (f) That OCS Menengai police station do ensure compliance of the orders (g) That the costs be provided for. 3. The grounds are on the face of the Application and are set out in paragraph 1 to 9. 4. The application is supported by the affidavit sworn by Kinya Kimani, the Plaintiff/Applicant herein on the 6 th February 2026 and a further affidavit sworn on the 16th April 2026. 5. The application is opposed. There is a Replying Affidavit sworn by the 2nd Defendant/Respondent on the 27 th March 2026 and a supplementary affidavit sworn on the 20 th April 2026. 6. On the 21st May 2026 the court with the consent of the parties directed that the Notice of Motion be canvassed by way of written submissions. 7. The Plaintiff/applicant’s submissions are dated 4 th June 2026. They raise one issue for determination; whether the Plaintiff/Applicant has satisfied the conditions for the grant of ELC E004 OF 2026 2

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a temporary injunction pending the hearing and determination of the suit. 8. Counsel submitted that the Principles governing the grant of interlocutory injunctions were settled in the celebrated case of Giella Vs Cassman Brown & Co. Ltd (1973) EA 358. The said principles were elaborated by the court of Appeal in the cases of Nguruman Limited Vs Jan Bonde Nielen; Mrao Ltd Vs First American Bank of Kenya Ltd & 2 Others (2003) eKLR. 9. It is submitted that the suit property forms part of an estate that was the subject of succession proceedings which is contested and is yet to be distributed to the beneficiaries and in respect of which the Plaintiff/Applicant is a beneficiary with lawful and identifiable interests. 10. Further that the purported sale and for transfer to the Defendant’s/Respondents was undertaken without his knowledge, participation, concurrence or consent. Reliance is placed on Article 40 of the Constitution, Section 45 and 82 (b) (ii) the Law of Succession Act. He has also put forward the cases of Trouistik Union International & Another Vs Jane Mbeyu & Another (1993) eKLR; Virginia Edith Wambui Otieno Vs Joash Ochieng Ougo & Another (1987) eKLR. It is submitted that the Plaintiff/Applicant has established an arguable and prima facie case deserving protection. ELC E004 OF 2026 3

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11. Counsel also submitted that the Defendant/Respondents have already entered the suit property and commenced construction and deposition of building materials thereon. That if allowed to continue with construction and occupation the character of the suit property will be fundamentally altered. Reliance is placed on the cases of Olympic Sports House Ltd Vs School Equipment Centre Ltd (2012) eKLR; Muiruri Vs Bank of Baroda (Kenya) Ltd (2001) KLR 183. He submitted that the continued construction and occupation of the suit property will therefore occasion irreparable injury to the plaintiff/Applicants proprietary and beneficial interests. 12. Counsel submitted that the balance of convenience tilts in favour of preserving the suit property in the current state pending determination of the suit. Reliance is placed on the cases of Films Rover International Ltd Vs Cannon Films Sales Ltd (1986) 3 ALL ER 772; Patricia Njeri & 3 Others Vs National Museum of Kenya (2004) eKLR. It is further submitted that the Defendants/Respondents will suffer no prejudice if they are restrained temporarily from undertaking further developments, whereas the Plaintiff/applicant stand to suffer substantial prejudice if the property is altered, transferred or encumbered before the suit is heard. ELC E004 OF 2026 4

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13. Counsel submitted that Courts have consistently held that preservation of disputed property is essential to prevent litigation from being rendered nugatory. He prays that the application be allowed with costs to the Plaintiff/Applicant. 14. The Defendants/Respondents’ submissions are dated 22 nd June 2026. They raise three issues for determination: (a)Whether the Plaintiff has established a prima facie case with a probability of success. (b) Whether the balance of convenience favours the grant of the orders sought. (c) Whether the Plaintiff is entitled to the equitable remedy of injunction. (d) Jurisdiction 15. Counsel submitted that the Plaintiff/applicant is seeking to impeach or circumvent a subsisting certificate of confirmation of Grant through an injunction application. Reliance is placed on the case of Samuel Kamau Macharia & Another Vs Kenya Commercial Bank LTD & 2 others (2012) eKLR. It is submitted that the issue before court is not one of Trespass or ownership but rather whether the Plaintiff was entitled to inherit the suit property. That these are matters reserved for probate and Administration Court exercising jurisdiction under the Law of Succession Act. ELC E004 OF 2026 5

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16. Counsel submitted that the Defendant/Respondents have attached to confirmation the of Replying Grant Affidavit issued in a certificate Nakuru High of Court Succession Cause No. E165 of 2023 in the Estate of Miriam Wairimu Maina through which the suit property formed part of the estate available for distribution. The Plaintiff has produced any order revoking, annulling, setting aside, or suspending the said Grant. 17. It is submitted that the Plaintiff/Applicant seeks an injunction relief founded upon an alleged beneficial entitlement while completely disregarding the subsisting succession proceedings relating to the estate of Mirriam Wairimu Maina. That he has failed to establish a prima facie case with a probability of success. 18. It is also submitted that the Plaintiff has failed to disclose material facts regarding the succession proceedings undertaken in respect of the estate of Mirriam Wairimu Maina and the existence of a subsisting certificate of confirmation of Grant affecting the suit property. Reliance is placed on the case of Kenleb Cons Ltd Vs New Gatitu Service Station Ltd & Another (1990) KLR 557. 19. It is submitted that no evidence has been placed before this court demonstrating that the Plaintiff/Applicant is in possession of the suit property or that he stands to suffer injury incapable of compensation by damages. He has put ELC E004 OF 2026 6

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forward the case of Nguruman Limited Vs Jan Bonde Nielsen & 2 Others (2014) eKLR. 20. It is further submitted that the Plaintiff/Applicant seeks orders which would effectively prevent the Defendant/Respondents from utilizing the suit property and substantially grant the final reliefs sought in the plaint before the suit is heard and determined. Reliance is placed on the case of Kenya Breweries Ltd & Another Vs Washington O. Okeyo (2002) eKLR. They pray that the Application be dismissed with costs to the Defendants /Respondents. 21. I have considered the pleadings, the Notice of Motion, the affidavit in support, the response thereto, the written submissions and the authorities cited. The issues for determination are:(i) Whether the Plaintiff/Applicant’s application meets the threshold for granting of temporary injunction. (ii) Who should bear cost of this application? 22. At this juncture it is necessary to briefly examine the legal Principles governing the Applications of this nature. In an application for injunction, the onus is on the Applicant to satisfy the Court that it should grant an injunction. The principles were laid down in the precedent setting case of Giella Vs Cassiman Brown & Co Ltd (1973) EA 358; In the case of Mrao Ltd Vs First American Bank of Kenya ELC E004 OF 2026 7

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Ltd & 2 Others (2003) KLR 125 the Court of Appeal stated what amounts to a prima facie case. I am guided by the above authorities. 23. It is the Plaintiffs/Applicant’s case that the Defendant/Respondents have trespassed, entered onto the suit property, deposited construction materials with the intention of putting up a permanent structure without his knowledge, consent and/or permission. 24. It is his case that he is a beneficiary of the estate and he is likely to suffer irreparable harm if the construction is allowed to continue. 25. The Defendant/Respondent on the other hand, state that the application is premised on the alleged beneficial entitlement arising out of succession proceedings and not on any registered proprietary interest capable of protection by this court. 26. In the case of Kenleb Cons Ltd Vs New Gatitu Services Station Limited & Another (supra) Bosire J (as he then was ) held that : “to succeed in an application for injunction an applicant must not only make a frank and full disclosure of all relevant facts to the just determination of the application but must also show that he has a right, legal on equitable, which requires protection by injunction” ELC E004 OF 2026 8

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27. I have considered the facts presented herein and I find that the Plaintiff/Applicant has failed to demonstrate that he deserves this court’s protection. 28. The Plaintiff’s /Applicant is not the registered owner of the suit property. He appears to have an issue with the certificate of confirmation of Grant issued in High court Succession cause No. E165 of 2023; In the Estate of Mirriam Wairimu Maina. As this Court has no jurisdiction to deal with this issue, I find that the Plaintiff/Applicant has not established a prima facie case to warrant the grant of the orders sought. 29. The Plaintiff/Applicant is not in occupation of the suit property; hence he has failed to demonstrate that he is likely to suffer any irreparable damage that cannot be compensated by an award of damages. 30. In conclusion, I find no merit in this application. The same is dismissed. The costs shall abide the outcome of the main suit. Ruling dated, signed and delivered virtually at Nakuru this 1st of October 2026. L KOMINGOI JUDGE IN THE PRESENCE OF:- ELC E004 OF 2026 9

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Mr. Ndungu Gichuhi for the Plaintiff/Applicant Mr. R. Ndubi for the Defendant /Respondent Court Assistant: Irene/Derrick ELC E004 OF 2026 10

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