Analysis and Determination
5.Having considered the Notice of motion, affidavits and rival submissions, the only issue for determination is whether the Applicant has met the threshold for the grant of a temporary injunction.
6.The conditions that the court must consider in granting an injunction were set out in the celebrated case of Giella v Cassman Brown & Company Limited (1973) E A 358, where the court expressed itself as follows: -
7.The first hurdle for an Applicant is to establish that he/she has a prima facie case before an order of injunction can be issued.
8.In the case of Naftali Ruthi Kinyua v Patrick Thuita Gachure & another  eKLR the Court of Appeal stated that:
9.The Applicant has in his affidavit averred that he has been utilizing the disputed portion of land since for about 40 years and that he has fenced the same and planted trees which are almost mature. The Respondent does not deny that the Applicant has been using a portion of his land though he contends that this is an act of encroachment which has been referred to the County Commissioner Kesses and the Land Registrar. What is clear from these two accounts is that the Applicant, has been in occupation of a portion of the Respondent’s land, and whether the said occupation is legal or not can only be determined after a full hearing.
10.In National Bank of Kenya v. Duncan Owour Shakali & Another, CA NO. 9 of 1997 Omolo JA stated:
11.In the case of Nguruman Ltd v Jan Bonde Nielsen & 2 Others 2014 eKLR the Court of Appeal observed as follows:
12.In the circumstances, I am of the view that the Applicant has established a prima facie case.
13.The second hurdle that the Applicant has to surmount is to demonstrate that he would suffer irreparable loss if the injunction is not granted. In Halsbury’s Laws of England, Third Edition, Volume 21, paragraph 739, page 352. it is stated that:-
14.What can be gleaned from the above text is that irreparable injury is injury that cannot be adequately remedied by an award of damages, but even in cases where damages would be an adequate remedy, the courts will grant an injunction in order to preserve the subject matter.
15.In the present case, the subject matter is land which could easily be sold, transferred, mortgaged or alienated thus putting it out of reach of the successful litigant. It is therefore necessary to preserve it.
16.Regarding the balance of convenience, it is not in dispute that the Applicant is the one who is utilizing the suit property and the balance of convenience therefore tilts in his favour.
17.Taking all factors into consideration and particularly bearing in mind the need to preserve the subject matter before the suit is heard, the order that commends itself to me is that the status quo be maintained pending the hearing and determination of the main suit.
18.The costs of this application shall be in the cause.