Response To The Replying Affidavit
6.The Applicant filed a supplementary affidavit in response to the Defendant’s replying affidavit dated 2/5/2023. It is averred that the Defendant’s response is full of admission of facts raised in the plaint and application dated 18/11/2023 and ought to be dismissed.
7.The Applicant admits that she obtained a late death certificate registration 6 months after the death and burial of the deceased when the immediate family had already obtained the same on 30/4/2015. That it is suspect as to what prompted the defendant to obtain a 2nd death certificate. That the deceased’s death was suspect and his death does not change the fact that he was the registered owner of the suit property jointly with the Applicant.
8.That vide Succession Petition No 200 of 2015 the court made a finding that the suit property was jointly owned between the deceased and the Applicant and the same was excluded from the list of assets for distribution. The applicant seeks that in the circumstances the application be allowed.
Analysis And Detrmination
10.Order 40 (1) (a) and (b) of the Civil Procedure Rules 2010 governs the grant of interlocutory injunctions, the same provides that: -
11.The guiding principles in granting an injunction were settled in the celebrated case of Giella v Cassman Brown & Company Limited (1973) E A 358, where the court expressed itself on the condition’s that a party must satisfy for the court to grant an interlocutory injunction as follows: -
12.From the provisions of Order 40 rule 1 of the Civil Procedure Rules, the courts paramount consideration before granting injunctive orders is proof that the subject property is in the danger of being wasted or damaged. In the instant suit it is noted that the suit properties have title deeds issued on 26/8/2015 in the name of the applicant herein. The question which therefore arises is whether the applicant has established a prima facie case.
13.In Mrao Ltd v First American Bank of Kenya and 2 others, (2003) KLR 125 which was cited with approval in Moses C. Muhia Njoroge & 2 others v Jane W Lesaloi and 5 others, (2014) eKLR, the Court of Appeal defined a prima facie case as: -
14.The Applicant contends that she is the lawfully registered proprietor of the suit properties and the defendant has no lawful claim of ownership over the said properties. She further states that the Defendant/Respondent has placed cautions over the suit properties denying her the chance to have any dealings on the same despite her being the lawfully registered proprietor to the properties. The court is yet to establish whether the suit properties form part of the estate of Salim Juma Khakim Kitendo or the same are the Applicant’s property. The court will further determine the validity of the titles held by the parties herein at a later stage, but before then it is important to preserve the substratum of the suit and which is the suit properties herein. I am therefore satisfied that the Applicant has established a prima facie case so as to warrant the granting of the orders of injunction.
15.Having found that the Applicant has established a prima facie case, the court will proceed to consider if the two remaining conditions for the granting of orders of injunction have been met as it is a requirement that all the three conditions be fulfilled before an order of injunction is granted. I am guided by the decision in Nguruman Limited V. Jan Bonde Nielsen & 2 Others, CA NO. 77 OF 2012, where the Court expressed itself on the importance of satisfying all the three requirements for an order of injunction as follows: -
16.These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. See Kenya Commercial Finance Co. Ltd V. Afraha Education Society  Vol. 1 EA 86. If the Applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the Applicant to injunction directly without crossing the other hurdles in between.”
17.The Applicant has deponed that the Respondent is keen on dispossessing her of the suit properties. The Applicant states that the defendant has placed a caveat over the suit property and has been interfering with her use and occupation of the same. This means that no dealings can therefore be made on the suit property by the applicant despite holding titles to the same. The second limb has therefore been proved.
18.It is evident that the balance of convenience tilts in favour of the Plaintiff/Applicant. I am guided by the decision in Amir Suleiman Vs Amboseli Resort Limited  eKLR where the learned judge offered further elaboration on what is meant by “balance of convenience” and stated
19.In view of the foregoing I am persuaded that there is a lower risk in granting the orders sought than not granting them. As to legal ownership of the suit parcel the court will render itself after interrogating the evidence of the parties and weighing it on the scales of justice. It behoves the court to preserve the suit properties as the court has not had opportunity to interrogate all the documents and evidence that might be relevant in providing a history of events leading to the registration of titles in the name of the Plaintiff and whether the properties were initially under joint tenancy or tenancy in common.
20.The court notes that the Applicant has further made prayers for the criminal proceedings in KWALE CRIMINAL CASE 403 OF 2017 to be stayed pending the hearing and determination of this suit. In my opinion the cause of action in the criminal case is an entirely distinct from the one in the instant suit. This court has been tasked with making a determination on the ownership of the suit properties while the lower court suit in the criminal matter is on the validity and registration of the titles to the suit property. If anything, this court has no jurisdiction in criminal matters and can therefore not deal with a matter in which it is devoid of jurisdiction, see Section 13 of the Environment and Land Court Act.
21.I am convinced that the Plaintiff/ Applicant has met the criteria for grant of orders of injunction, the application partly succeeds in the following terms;1.That this honourable court be and is hereby pleased to issue temporary injunction restraining the defendant either by herself, servants, agent, assigns and/or employees from entering, interfering with the plaintiff’s quiet possession and/or evicting the plaintiff and/or dealing with the plaintiff’s suit plot numbers KWALE/DIANI/SS/2539 and KWALE/DIANI SS/2274 in any manner whatsoever pending hearing and determination of this suit2.Costs will abide the outcome of the suit.