5.I have considered the Preliminary Objection raised herein, the submissions by Counsel for both parties as well as the authorities cited. It is not in dispute that the Plaintiff filed suit via a plaint dated the November 30, 2022 as a beneficiary and administrator of the estate of the late Kimilgo Arap Kukuto as against the Defendant seeking orders declaring him to have had beneficiary interest limited to a 5 (five) acre portion, that had belonged to the deceased Kimilgo Arap Kukuto, to be hived off from parcel of land No Kericho/Kapsuser/439 and that all the resultant titles emanating from the subdivisions of the said parcel of land be cancelled.
6.The Plaintiff had further sought for interim orders against the Defendant so as to preserve the subject suit. The Defendant had filed his response to the suit as well as the present Preliminary Objection for which he had alluded that the Plaintiff had no locus standi to file suit on behalf of the estate of the late Kimilgo Arap Kukuto, he not having annexed any documentary evidence. In response to the Preliminary Objection, the Plaintiff had annexed the Letters of Administration ad Litem issued to him in the Kericho CMC Probate and Administration Misc Cause No E338 of 2022 on the October 17, 2022.
8.The instant case I find that the Plaintiff had the locus standi to file suit against the Defendant on behalf of the estate of late Kimilgo Arap Kukuto, this line of argument therefore fails.
9.On the second issue in relation to the Application for interim orders of injunction, the Defendant had sought that since the Plaintiff/Applicant had not demonstrated that the deceased Kimilgo Arap Kukuto had any proprietary interest in the said suit property which was currently registered in the name of the Defendant/Respondent together with the subsequent sub divisions thereof, that he had failed to establish a prima facie case and therefore the application ought to be dismissed.
10.There had been no submissions to this effect by the Plaintiff.
11.The celebrated case of Giella vs Cassman Brown (1973) EA 358 sets out conditions for the grant of an interlocutory injunction as follows:-i.Is there a serious issue to be tried( prima facie case)ii.Will the Applicant suffer irreparable harm if the injunction is not granted;iii.Which party will suffer the greater harm from granting or refusing the remedy pending a decision on the merits? (Often called 'balance of convenience').
13.The Court has been moved under a Certificate of Urgency, by the Applicant, to issue temporary injunction against the Respondent. At this stage, the Court is only required to determine whether the Applicant is deserving of the orders sought. The Court is not required to determine the merit of whether or not the Applicant herein has demonstrated that he has a genuine and arguable case or not.
14.The issues that arise for determination herein are two;i.Whether an interim order of injunction should issue against the Defendant.ii.Whether the Plaintiff has established a Prima facie case to warrant issuance of interim orders.
15.In this matter, the Plaintiff in his application seeks for interim injunctive orders restraining the Defendant from entering into, further subdividing, transferring, ploughing, farming, selling, leasing, mortgaging, charging, alienating, and/or in any other way the may (sic) be construed in whatsoever in respect to the parcel of land known as Kericho/ Kapsuser/439 or its subdivision being Kericho/ Kapsuser/ 7498-7503 pending the hearing and determination of the suit. The Plaintiff/Applicant had further sought for an order of inhibition in respect to the parcel of land Known as Kericho/ Kapsuser/439 or its subdivision being Kericho/ Kapsuser/ 7498-7503 during the pendency of suit and for costs.
16.It is now a settled practice under the new constitutional dispensation that filing of written submissions is the norm as written submissions serve the purpose of expedience and amounts to addressing the court on the evaluation of the evidence of each party and analysis of the law. It is therefore trite that an applicant who fails to file his submissions on an application as ordered by the court is deemed as a party who has failed to prosecute his application and therefor that application is liable for dismissal. The filing of submissions having been ordered, and this court having extended time for compliance without compliance, the failure by the Applicant to exercise the leave granted to them to file written submissions clearly demonstrates inertia and inordinate delay, lack of interest and/or seriousness on the Applicant’s part in the prosecution of the matter.
18.The mode of hearing having been chosen by the Applicant and the same having been adopted by the court, and there having been no compliance, I am persuaded to dismiss the main motion, however having noted that the Plaintiff resided on a part of the subdivision, and has laid claim that the estate of the deceased was at great risk of being wasted away by the Defendant, whether or not he will prove his case is not for determination at this stage. Of importance at this stage is the protection of the suit land by letting the interim orders earlier issued herein remain in place pending the hearing and determination of the suit.
20.In this regard and in order to preserve the substratum of the suit, I believe that the best orders to issue suo moto, in the best interest of justice and in pursuance to the provisions of Section 3A of the Civil Procedure Act, would be that the parties shall maintain the status quo prevailing, pending the hearing and determination of the suit.
21.Parties shall now set down this matter for hearing expeditiously by complying with the provisions of Order 11 of the Civil Procedure Rules within the next 21 days upon delivery of this ruling so as to expedite the hearing and determination of the suit.
22.Costs to be in cause.