11.As at the time of writing this ruling the Plaintiff had not filed his submissions.
12.The Defendant/Respondent’s submissions were filed on 14th of June 2022.
13.Counsel submitted that the only issue for determination is whether the Applicant has met the threshold for the grant of an injunction. Counsel submitted that the law on injunctions is set out in Order 40 of the Civil Procedure Rules and reiterated in the case of Giella vs Cassman Brown & Co Ltd (1973) EA 358.
14.Counsel further submitted that the Applicant has not established a prima facie case with a probability of success. It was argued that the Respondent is the registered owner of land parcel number Makueni/Utangwa/3704 which is distinct from the Plaintiff’s property land parcel number Makueni/Utangwa/3663.
15.He went on to submit that the Respondent purchased the suit property from the Applicant’s late brother and was issued with a title deed after the completion of the adjudication process. Counsel argued that the Applicant did not produce any evidence to demonstrate that the Respondent had trespassed or encroached on his land.
16.To buttress this argument, Counsel relied on the case of Mrao Vs First American Bank of Kenya & 2 Others (2003) eKLR. In a nutshell, Counsel reiterated the contents of the Defendant’s replying affidavit in support of his submissions.
17.On the second limb, Counsel submitted that the Applicant has not demonstrated that he will suffer any loss if the orders sought are not granted and that if anything, it is the Defendant who will suffer since the Plaintiff and his siblings have barred him from cultivating on his land.
18.Counsel argued that the Applicant did not adduce any evidence to prove that he reported the destruction of his property to any local authority.
19.On the third limb, Counsel submitted that the balance of convenience tilts in favour of the Defendant since he is the registered owner of the suit property. Counsel argued that the Plaintiff has approached the Court with dirty hands since he knew that his late brother had sold the land to the Defendant.
Analysis And Determination
20.Having considered the pleadings, the application, affidavits and the Defendant/Respondent’s submissions, I find that the only issue that arises for determination is whether the Applicant has met the threshold for the grant of an order of injunction.
21.The Applicant is seeking for a temporary injunction to restrain the Defendant from interfering with the Plaintiff’s possession and quiet enjoyment of land parcel number Makueni/Utangwa/3663. He is also seeking for a permanent injunction to restrain the Defendant from trespassing or encroaching on the Plaintiff’s property. The Plaintiff’s application for injunction is premised on Order 40 Rules 1, 2, 3, 4 and 10 of the Civil Procedure Rules amongst other provisions of the law.
22.In the case of Giella vs Cassman Brown & Co Ltd  EA 358 the Court set out the principles applicable in an application for an injunction as follows: -
- First the 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 suffer irreparable harm which would not be adequately compensated by an award of damages.
- Thirdly, if the court is in doubt, it will decide an application on a balance of convenience.
23.I will start by considering whether the Applicant has established that he has a prima facie case with a probability of success.
24.The Court of Appeal in Mrao Ltd Vs First American Bank of Kenya Ltd & 2 Others (2003) eKLR defined a prima facie case as follows;
25.The Applicant averred that he is the registered owner of land parcel number Makueni/Utangwa/3663. In this regard, he produced a copy of the title deed and a certificate of official search for the said property. He further alleged that on 30th of June, 2022, the Respondent without any colour of right trespassed on his land and caused wanton destruction thereon by cutting down trees.
26.He further averred that it took the intervention of the local administration officers for the Defendant to stop carrying out his unlawful acts.
27.The Respondent on the other hand stated that he is the registered owner of land parcel number Makueni/Utangwa/3704 and denied having trespassed onto the Plaintiff’s land.
28.From the material placed before me, I find that the Applicant has not demonstrated that the Respondent trespassed onto his land parcel number Makueni/Utangwa/3663. Similarly, the Plaintiff did not adduce any evidence to demonstrate that the Defendant caused wanton destruction of his property.
29.The Applicant averred that upon being served with a boundary dispute summons, he decided to conduct a search since he did not know the neighbour who was indicated in the summons. In this regard he produced a boundary dispute summons dated 15th of August, 2021 issued by the Land Registrar, Makueni County.
30.He went on to state that he was shocked to discover that land parcel Makueni/Utangwa/3704 was hived off from his parcel of land without his knowledge or consent or that of his siblings.
31.The Respondent on the other hand averred that he is the registered owner of land parcel number Makueni/Utangwa/3704 having purchased the same from the Applicant’s brother in 2011. In this regard he produced a sale agreement dated 2/11/2011 and a title deed for the said property. The Respondent contended that the Plaintiff started laying claim to his land after the demise of his brother.
32.Looking at the documents presented by the parties herein, it is not in dispute that the Plaintiff is the registered owner of land parcel number Makueni/Utangwa/3663 while the Defendant is the registered owner of land parcel number Makueni/Utangwa/3704. The Plaintiff stated that after he was served with a boundary dispute summons by the Land Registrar he conducted a search and discovered that a portion of land parcel number Makueni/Utangwa/3663 was hived off and registered in the name of the Defendant.
33.The Plaintiff alleged that land parcel number Makueni/Utangwa/3704 was fraudulently registered in the name of the Defendant as he did not sell or receive consideration from the Defendant. That further, no consent was obtained from the Land Control Board to transfer the property to the Defendant. The Applicant maintains that the Defendant fraudulently obtained title to land parcel number Makueni/Utangwa/3704.
34.The issues of fraud and ownership are contested issues which can only be determined by evidence in a full trial by calling evidence and interrogating it through cross examination. At this stage the Court is not required to determine the issues which will be canvased at the trial.
35.The Court is aware that at the interlocutory stage, it is not required to make any definitive conclusion on the matters that are in controversy.
37.Similarly, in the case of Edwin Kamau Muniu Vs Barclays Bank of Kenya Ltd NBI HCCC No. 1118 of 2002, the Court held that;
38.The issues of ownership and fraud can only be determined in a full trial where the parties will have the opportunity to call evidence and have the same challenged by way of cross examination. This was the holding in the case of Joash Ochieng Ougo & Anor vs Virginia Edith Wambui Otieno  eKLR, where the Court of Appeal held that;
39.Looking at the documents annexed to the Applicant’s supporting affidavit, I am not persuaded that the Applicant has established a prima facie case with a probability of success in line with Giella Vs Cassman Brown (Supra).
40.With regards to the issue of whether the Applicant will suffer irreparable harm which cannot be adequately compensated by award of damages, the Applicant must demonstrate that it is a harm that cannot be quantified in monetary terms or cannot be cured.
42.The Applicant argued that the Defendant’s unlawful acts have threatened his right to possession and enjoyment of his property. The Applicant contends that unless an order of an injunction is issued, the Defendant’s actions will result to physical or emotional injury to the Plaintiff and his extended family.
43.The Plaintiff has not demonstrated what loss if any he stands to suffer if the orders sought are not granted and further, that the loss cannot be compensated with an award of damages. The Court is therefore not convinced that the Applicant stands to suffer irreparable harm that cannot be compensated by way of damages.
44.On the issue of balance of convenience, the Court has to weigh the hardship to be borne by the Applicant by refusing to grant the injunction, against the hardship to be borne by the Respondent by granting the injunction.
45.In light of the foregoing, I find that the balance of convenience does not tilt in favour of the Applicant.
46.Consequently, the application dated 23rd March, 2022 is dismissed with costs to the Respondent. The parties herein are directed to comply with Order 11 of the Civil Procedure Rules within 30 days from the date hereof.
47.Mention on 16th of January, 2023 before the Deputy Registrar for Pre-trial Conference.