1.This is a ruling on a Notice of Motion dated 1st August 2022 wherein the Applicant seeks for the following orders: -i.Spent.ii.That the Honourable Court be pleased to issue an order of temporary injunction restraining the Defendant/Respondent by herself, her agents, servants or assigns from alienating, wasting, constructing unauthorized structure on the suit property known as LR No. 27/9 (originally number 27/1/3) pending the hearing and determination of this suit.iii.That costs of this application be provided for.
2.The grounds upon which the application was premised were that the suit property belonged to the Estate of Grace Muthoni Githegi and Samuel Githegi (deceased) who died on 27th July, 2019 and that the Respondent has without any consent from trustees of the estate of the deceased continued to construct an unauthorized structure in the said property and in the circumstances, it is only fair and just that an injunction be granted.
3.The Application was opposed by the Respondent vide a Replying Affidavit sworn by Loise Nduta Mbugua on 11th August 2022. The Respondent deposed that the suit property LR No. 27/13 Ridgeways is also the subject matter of a matrimonial property suit in Civil Suit No.38 of 2016 where the court had issued an injunction on 14th September 2016 restraining her parents in law and any other person acting on their behalf from evicting and or interfering in any way with that property pending the hearing and determination of that suit.
4.The Applicants also filed a supplementary affidavit where it was deposed that the matrimonial suit abated when the deceased defendants passed on in 2020 and that there was no valid suit for determination before the said court. The Applicants also averred that this suit was filed as a result of breach of tenancy agreement and further that this court has no jurisdiction to entertain issues of matrimonial property raised by the Respondent since this suit was filed before the matrimonial suit in the High Court.
5.On 1st August 2022, the court directed that the application be canvassed by way of written submissions. Both parties complied. The Applicants submissions dated 5th August 2022 were filed by Ngure Mbugua Advocates while the Respondent’s written submissions were filed by Musyimi and Company Advocates and were dated 12th August 2022.
6.I have considered the Application, the affidavits in support and opposition to it and all annexures thereto and the written submissions on record. I have also considered the law and case law relied upon by the parties. I find two issues for determination in this matter. These being, whether the Applicant has satisfied the principles of grant of a temporary injunction and what orders can issue as to costs. I will proceed to deal with the said issues sequentially.
7.The remedy for injunction being an equitable remedy is a discretionary remedy to any court. The discretion must be exercised judiciously. This is what every court should bear in mind when dealing with such kind of an application. In the cases of Kahoho Vs Secretary General, EACJ Application No. 5 of 2012 and Daniel Kipkemoi Siele Vs Kapsasian Primary School & 2 Others (2016) eKLR, courts held that the grant or not of an order of injunction is upon the discretion of the court which discretion must be exercised judiciously. In Farah Awad Gullet Vs CMC Motors Group Limited (2018) eKLR, the Court of Appeal repeated the same position and went on to state that it means it is …
8.In order for a party to succeed in an application for a temporary injunction, he/she has to pass the test that was set out in the case of Giella Vs Cassman Brown (1973) E.A 358. The test has three limbs to be satisfied. These are:-a.Whether the Applicant has established a prima facie case.b.whether he or she would suffer irreparable loss that may not be compensated by damages.c.That if the court is in doubt, it may rule on a balance of convenience.
9.On the issue of prima facie case, counsel for the Applicants submitted that the Applicants (deceased parents) are the registered proprietors of the suit property and pursuant to Section 24 of the Land Registration Act, rights of a registered proprietor are protected in law. Reference was also made to the cases of Nyayo Embakasi Residents Association Vs NSSF & Another (2015) eKLR and Civil Application No. 312 of 2005 Hutching Bieber Ltd Vs Barclays Bank of Kenya Ltd & Another.
10.Counsel for the Respondent on the other hand submitted that no prima facie case had been made to warrant the grant of injunction since the matter herein constitutes matrimonial property of the Respondent and further she has been in exclusive use of the property since 1987.
11.On the aspect of prima facie case, the Applicants main contention is that the Respondent is constructing illegal structures on the suit property. The Respondent in her affidavit sworn on 11th August 2022 deposed that the said property is matrimonial property of which she has been in occupation from 1987. Having considered the oral averments, I am not convinced that the Applicants have shown a prima facie case herein since the Respondent has demonstrated that she had been in the suit property since the year 1987 and the constructions being undertaken have the necessary approvals and further they were commenced in the year 2016.
12.On the aspect of irreparable loss, that would be suffered should the injunction not be granted, the Applicants submitted that the Respondent is a tenant at the premises pursuant to a tenancy agreement dated 8th October 2003 for a period of 50 years and that she has refused to pay rent which has accumulated to Millions of Shillings as demanded on the Plaint. Counsel relied on the case of Tritex Industries Limited & 3 Others Vs National Housing & 3 Others Vs National Housing Corporates and Another (2014) eKLR in support of the said position.
13.The Respondent’s counsel submitted that no irreparable harm would be suffered since the ongoing construction had been approved by the relevant authorities and it commenced in 2016. Counsel also argued that the value of the property will always appreciate causing no prejudice to the Applicants. Counsel also submitted that issuance of an injunction will be contrary to public interest since the property has a school which has a capacity of over 500 children and about 70 employees and hence therefore if an injunction is issued and construction stopped, the children’s education will be prejudiced.
14.Irreparable harm means that the result of the actions of the adverse party if left un-attended to by a court order halting them will be such that the other party is not likely to be compensated adequately by damages. It is not enough to show a prima facie case. The Applicants must demonstrate that the effect of the actions of the Respondent is so grievous that when all is said and done, he or she will not be in the same position as was originally. In the case of Pius Kipchirchir Kogo Vs Frank Kimeli Tenai (2018) eKLR, the court stated as follows:
15.As regards to irreparable loss, I should state that the Applicants claim is quantifiable and compensable by an award of damages. I am saying this fully aware that an injunction will not be refused solely on the basis that damages are an adequate remedy to the Applicants claim. This was explicated by Ringera J. (as he then was) in the case of Waithaka Vs Industries Commercial Development Corporation (2001) KLR page 381, where he stated as follows:
16.In this case, it is clear that the Applicants have failed to satisfy the conditions necessary for the grant for a temporary injunction and in the circumstances, the Notice of Motion dated 1st August 2022 lacks merit and is hereby dismissed with no orders as to costs. The suit will proceed for hearing on 3rd October 2022 as earlier scheduled.