https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/547

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE’S COURT AT BUNGOMa** **ELC E 011 OF 2025** ROSELINE OKETCH HUSSEIN…………………………….…………PLAINTIFF/ APPLICANT =VERSUS= JONATHAN OKINDA LIBOYI……………………...……………DEFENDANT/ RESPONDENT =AND= LAND REGISTRAR, BUNGOMA………………………………………1ST INTERESTED PARTY HON. ATTORNEY GENERAL…………………………………………2ND INTERESTED PARTY **RULING** This ruling is in respect to the Applicant’s Notice of Motion dated 26/09/2025. It seeks orders as follows; 1. Spent. 2. Spent. 1. Spent. 2. Spent. 3. 5. THAT upon hearing of this Application and pending the hearing and determination of the main suit, this Honourable Court be pleased to issue an order maintaining status quo prior to filing of this suit in regards to the possession, use and occupation by the Plaintiffs agents, servants, hirelings, licensee or any other person claiming through the Plaintiff of all that parcel of land known as TITLE NUMBER E. BUKUSU/S. KANDUYII13976 (the "Suit Land"). 4. THAT upon hearing of this Application and pending the hearing and determination of the main suit, this Honourable Court be pleased to issue an order maintaining status quo prior to filing of this suit in regards to the register of the Suit Property ie an order prohibiting the 1 51 Interested Party from effecting any registration and/or making entry in the register of the Suit Property pending the hearing and determination of the main suit. 5. THAT upon hearing of this Application and pending the hearing and determination of the main suit, this Honourable Court be pleased to issue an order of temporary injunction restraining the Defendant. Respondent either by himself, agents, servants, employees and any other party acting on his instructions from, leasing, disposing of, constructing, developing, alienating or parting with possession thereof or evicting or demolishing Plaintiff's structures and building or in any way interfering with the quite enjoyment, possession, use and occupation by the Plaintiffs tenants. agents, servants, hirelings, licensee or any other person claiming through the Plaintiff Of all that parcel of land known as TITLE NUMBER E. BUKUSu/S. KANDUYI/13976 6. THAT the costs of this application be provided for. The grounds upon which this application was premised are inter alia; 1. That the Applicant is the wife of the Respondent. 2. That the suit property was purchased jointly between them sometimes in the year 2009 from Mwanajuma Opworo during their cohabitation period. 3. That immediately after the purchase transactionwas completed, she took possession of the suit property and developed it by constructing residential houses and other essential structures on the same and appointed her sister as a caretaker thereof. 4. That upon its purchase, the caused the said property to be registered in the name of the respondent based on the relationship and on their understanding that the same their matrimonial property and he would hold the same in in trust for the family including their children. 1. That the Applicant later emigrated abroad in the year 2012 for greener pastures but remained in the union whilst leaving the suit property in the hands of her sister as its caretaker. 2. That sometimes later in the year 2019 or thereabout, she separated with the Respondent after she discovered that he was engaging in extra- marital affairs. 1. That because of the above reason, the Respondent has decided to punish her by disposing off all the properties she bought and registered in his name and is doing that without her consent. 2. That he has since disposed of parcel Known as UYOMA/ RAGENGNI/2951 in Uyoma, Siaya County sold in the month of June 2025 which prompted her to Plto file a case in Madiany Law Courts being ELC Case No. 23 of 2025. 3. That the Applicant has also learnt from her sister, the caretaker of the auit property the Respondent visited the accompanied by people which she perceives to be potential buyers. 4. Further to that, the Respondent has through his advocates also issued a notice to her caretaker to vacate that suit property and to further cease collecting rents on her behalf from the tenants residing thereon. 5. That despite placing a restriction and/or caution on the register of the suit land, she is still apprehensive that the Respondent may fraudulently dispose of it, to her detriment, irreparable damage and damage unless stopped by court injunction. This application was opposed by the Respondent vide his replying affidavit sworn on His arguments were on the contrary as follows; 1. That the Applicant is not his wife but was his girlfriend. 2. That no marriage was ever formalised between them either under customary law, statutory law or any other any other recognised marriage in Kenya. 3. That he met her in the year 2002 when she was desperate for accommodation. He then gave her accommodation by renting a house and before giving her one his own houses to reside in between the year 2009 – 2012 when she migrated to the United Kingdom. 4. That he admits that the relationship between them soured around the year 2019 but that does not entitle the Applicant to make false claims over his property and seek to dispossess him of the same. 5. That it is true that the Applicant travelled abroad in the year 2012 leaving her sister to manage the suit property and collect rent from 3 houses for upkeep of the Applicant’s child who remained in her custody. But this did not entitle her to any legal rights over the same. 6. That he solely owns the suit property having purchased and developed it with his own funds which emanated from a Safaricom pay out. 7. That the allegation that the suit property was registered in his name to holding trust for their alleged family if false and malicious as they are meant to disposs him of his rightful property to which he is the sole registered owner. 8. That the allegation that he intends to demolish the property and evict the tenants is malicious and intended to paint him in bad light before this court as the tenants who reside there are his and their presence there is subject to his right as a landlord. 9. That the applicant has not demonstrated any prima facie case against him ith a probability of success being that her allegations are unfounded and based on falsehoods and the balance of convenience tilts in his favour as the legitimate owner of the suit property. 10. That the orders of injunction if granted will greatly limit and prejudice his rights to manage the suit property. He prayed for dismissal of this application and an order stopping the Applicant’s sister Maureen Awuor Hussein from collecting rental income from the suit property. Parties canvassed this application through written submissions. **Issues for determination** These are, 1. Whether a prima facie case with a probability of success has been establishe by the Applicant. 2. Whether the Applicant stands to suffer irreparable damage if orders of injunction are not granted. 3. Whether the balance of convenience tilts in favour of the Applicant in case of doubts on (2) above. 4. Who should bear costs of this application **Determination** In this application, the Applicant’s allegation is that she and the Respondent are husband and wife but who have since separated. According to her, the suit property is matrimonial property but is at the risk of being sold by the respondent without her consent. But this argument has been denied by the Respondent who whilst acknowledging that the two were in a domestic relationship and indeed cohabitated together for sometimes, has refuted claims of existence of a marriage between them and gone on to lay an exclusive claim to the suit land. The court is faced with these two conflicting claims as it ponders whether or not to grant a temporary injunction to the Applicant as prayed in this application. As was rightly submitted by both counsels on record for parties, Mr. Wakla and Mr. Nyamu respectfully, the law on the grant of temporary injunctions as an equitable remedy is well settled. Both were largely similar. In their submissions, the Respondent’s counsel referred to Order 40 Rule 1 of the Civil Procedure Rules, 2010 which stipulates circumstances upon which the court may grant a temporary injunction to the applicant. The provision provides thus; ***"Where in any suit it is proved by affidavit or otherwise— (a) that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or (b) that the defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in the*** ***execution of any decree that may be passed against the defendant in the suit, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders.”*** The principles governing the grant of temporary or interlocutory injunctions were laid down in the famous Court of Appeal case of ***GIELLA VS CASSMAN BROWN AND CO. LTD [1973] EA* 358 as follows;** ***"The conditions for granting a temporary injunction in East Africa are well known and these are: 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 injury which would not adequately be compensated by an award of damages; thirdly, if the court is in doubt, it will decide an application on the balance of convenience."*** The above principles were subsequently affirmed and expounded upon by the Court of Appeal in ***NGURUMAN LIMITED V JAN BONDE NIELSEN & 2 OTHERS [2014] eKLR*** . In the case, the court held thus; ***"In an interlocutory injunction application, the applicant has to satisfy the triple requirements to:*** ***a. Establish his case only at a prima facie level;*** ***b. Demonstrate irreparable injury if temporary injunction is not granted; and*** ***c. Allay any doubts in (b) by showing that the balance of convenience is in his favor."*** The court added that the above three conditions are to be applied as separate, distinct and logical hurdles which the Applicant must surmount. It stated this as follows; ***“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 [2001] 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.”*** It is trite*that* in order for a prima facie case to be established, the Applicant must demonstrate that he has a right which has been or is threatened with violation to warrant protection through grant of interlocutory injunction- ***MRAO LTD & ANOTHER V FIRST AMERICAN BANK OF KENYA LTD & 2 OTHERS [2003] KLR 12 and SAMUEL MBURU NGARU & ANOTHER V NAOMI WAMBUI KANG'ARA & 2 OTHERS [2015] eKLR.*** The Applicant’s counsel submitted that even though the evidence on record shows that the registered proprietor of the Suit Property is the Defendant, sale agreement annexed to her application a Sale confirms that she is the one who purchased the suit property and paid the purchase. That after that, she developed the same and appointed her sister to be the caretaker thereon and to date, she is still on the suit property. He further submitted that parties were husband and wife but their relationship has since turned sour. It was reiterated by counsel, that the respondent has already disposed of one of the properties bought by the Applicant following their break up forcing her to seek the intervention of the court. With respect to the alleged threatened sale, counsel submitted that the Applicant has since been reliably informed by her caretaker that of late, the Respondent has been visiting the suit property in company of potential buyers. On the contrary, the Respondent submitted that he is the absolute and indefeasible title holder of the suit land. That as such, he is protected under section 26 of theLand Registration Act, 2012. That per that provision, his title may only be defeated on account of fraud, misrepresentation, illegality, or corruption but which has not been alleged by the Applicant. He added that there is no evidence of marriage between them or trust arrangement or financial contribution from her to justify the Applicant’s claim that the suit land is matrimonial property. He further contended that and that the sale agreement she has annexed to her affidavit, does not confer any ownership on her at all. Regarding the issue of irreparable injury, the cited case of ***PIUS KIPCHIRCHIR KOGO VS FRANK KIMELI TENAI (2018) eKLR*,** is relevant. In the case, the court explained the concept of irreparable injury as follows: ***"Irreparable injury means that the injury must be one that cannot be adequately compensated for in damages... The applicant should further show that irreparable injury will occur to him if the injunction is not granted and there is no other remedy open to him by which he will protect himself from the consequences of apprehended injury.*** The other case, cited was of ***JOHN KAMAU MICHUKI & 7 OTHERS V JAPHETH KIMANI MUCHOKI & 3 OTHERS [2015] eKLR,*** which has a similar holding. Concerning the issue, the respondent’s counsel submitted that the Applicant had failed to demonstrate irreparable injury, loss or damage to warrant grant of the injunction she seeks herein. He observed that respondent has been the one managing the suit property since the Applicant relocated abroad since 2012 and since then, she has shown no interest in the property until now. He reiterated that there is no evidence that potential buyers have been visiting the suit land with the intention of buying it at his behest. He added that because the Applicant has placed a caution/ restriction on the suit property that already prevents any dealings with the property pending resolution of her claim. That as such, even without the injunction, the property cannot be transferred or sold. He also submitted that the Applicant has not shown that damages would be an inadequate remedy, if she ultimately succeeds in this suit. Concerning the test of the balance of convenience, the case cited was that of ***PIUS KIPCHIRCHIR KOGO VS FRANK KIMELI TENAI (2018) eKLR, i***n which the balance of convenience was interpreted as follows; ***"The meaning of balance of convenience will favor the Applicant is that if an injunction is not granted and the Suit is ultimately decided in favor of the applicant, inconvenience caused to the applicant would be greater than that which would be caused to the Defendants if an injunction is granted but the suit is ultimately dismissed."*** A similar meaning was rendered in the case of ***ROBERT MUGO WA KARANJA V ECOBANK (KENYA) LIMITED & ANOTHER (2019) eKLR,*** *where the the Court stated that:* ***"The balance of convenience test requires the court to weigh*** ***the competing interests of the parties and determine which party would suffer greater hardship if the injunction is granted or refused."*** On the matter, the Applicant’s counsel submitted that she has demonstrated that the balance of convenience tilts in her favour and that she will be prejudiced if the orders of a temporary injunction are not granted. That she will out on her right of ownership if the suit property is transferred to 3rd parties. But on the other hand, granting of those orders will not occasion any loss to the Respondent in any way even if the suit is ultimately decided in his favour. On the contrary, the Respondent’s counsel submitted that the balance of convenience tilts his favour because, he is registered proprietor and should be left to possess, manage and control the suit property pending hearing and determination of the case per the decision in ***WILFRED KIBORO & ANOTHER V MUKHTAR MOHAMMED AHMED & 2 OTHERS [2016] eKLR and JULIUS MBAYA V JAMES MUYA & 3 OTHERS [2017] eKLR.*** In the latter case, it was held that; ***"The balance of convenience will not favor an applicant who seeks to restrain the registered proprietor from exercising his rights over his property based on unproven and disputed claims."-*** *see also* ***ROBERT MUGO WA KARANJA V ECOBANK (KENYA) LIMITED & ANOTHER (2019) eKLR.*** **Issues for determination** 1. *Whether the Applicant has surmounted the three prerequisite tests necessary for grant of a temporary injunction.* 2. *Whether her prayer for injunction is merited and should be granted as prayed.* 3. *Whether she is entitled to costs of this application.* ***Analysis & Determination*** The court having considered this application carefully, its observation is that key issues in dispute herein. These are; 1. Whether parties’ friendship and cohabitation resulted or culminated into a valid marriage. 2. Whether the suit property was purchased and developed by the Applicant during the subsistence of the alleged marriage but registered in the name of the Respondent in trust. 3. Whether the suit property needs protection as matrimonial property. These are weighty issues which may not be resolved in this application and must await trial of the case its merits at its full hearing. But already evident is the fact that the Respondent is the registered owner of the suit property. This fact is undisputed. Similarly, not disputed is the existence of a sale agreement over the suit property which is in the name of the Applicant as the buyer but which the Respondent regards to be no proof of ownership on her part. Related to that is other fact showing that the property is currently being managed by the Applicant’s sister as caretaker. This fact is admitted by the Respondent but his position on the same is that the said caretaker only collects rent on a few of the houses with his consent towards the upkeep of the Applicant’s child who was left in her care and custody. All these arguments seem to point to some mutually ownership or control between the parties but clarity on the same is a matter which should await trial of the case on its merits. Considering the positions taken by parties on these matters and conflicting claim of ownership they have over the suit property, there is need for it to be preserved and protected pending trial of the case. It has been argued by the respondent that the Applicant has already place a caution/ restriction on the suit property already prevents any dealings with the same pending hearing of this case. Indeed, the court agrees with the respondent’s counsel that the said caution/ restriction suffices to protect the interest of the Applicant in the suit land as provided for under section 71 and 77 of the Land Registration Act, Cap 300, Laws of Kenya. The effect of a caution is that it forbids the registration of dispositions and the making of entries and registration of dispositions and the making of entries to the extent expressed therein A restriction or prohibition has a similar effect and particularly restricts or inhibits the title for purposes of compulsory acquisition, prevention of any fraud or improper dealing and or for any other sufficient cause. Such a restriction or inhibition once made by the registrar, becomes an order prohibiting or restricting dealings with the land, lease or charge for a specified period or or until the occurrence of a particular event, or until a further order. In the circumstances, I would find this application un necessary since the caution/ restriction lodged by the Applicant on the register of the suit land offers the requisite protection without the necessity of any further intervention by the court by way of injunction. That caution and restriction have not been challenged by the Respondent for removal. Therefore, I would find this application superfluous and unnecessary. But rather than dismiss it, I would dispense with it by ordering that the status quo obtaining on the register and its occupation be maintain pending the hearing and determination of this suit on its merits. It is my belief that maintaining of status quo will serve the parties’ competing interests that have emerged herein. On costs, I would order the same to be in the cause. It is so ordered. Dated & Delivered in open court this 20th day of August 2026 In the presence of; Applicant- N/A for Mr. Wakla Respondent- N/A for Mr. Mwamu R. B. N. MALOBA(MS) SENIOR PRINCIPAL MAGISTRATE