https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/588

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT AT BUNGOMA** **ELC CASE NO. E025 OF 2026** **ERASTUS SIFUNJO KISAKA………………….…….…...PLAINTIFF** **VERSUS** **MICHAEL WATILA WANYAMA & ANOTHER………………………...DEFENDANTS** **RULING** 1. This ruling determines the Plaintiff/Applicant’s (‘the Applicant’) Application dated 30th March 2026 under a Certificate of Urgency expressed to be brought under Article 159 of the Constitution, sections 1A, 1B and 3A of the Civil Procedure Act, and Order 40 of the Civil Procedure Rules seeking orders that: 2. *Spent* 3. *Spent* 4. *Spent* 5. *This Honourable Court be pleased to issue orders, pending the hearing and determination of the suit granting a temporary injunction restraining the Defendants, whether by themselves, their agents, servants, employees, assigns, or any other person claiming through or under them from evicting the Plaintiff from the suit property, trespassing upon the suit property; and alienating, leasing, charging, selling, transferring, or in any other manner whatsoever dealing with* *L.R No. Bokoli/Chwele/4961* 6. *This Honourable Court be pleased to issue orders, pending the hearing and determination of this suit, directing the Defendants to forthwith restore the Plaintiff into quiet and vacant possession of L.R No. Bokoli/Chwele/4961, and to refrain from interfering with the Plaintiff’s occupation and use thereof* 7. *This Honourable Court be pleased to issue orders that the costs of this Application be provided for* 8. The instant Application was premised on the grounds on its face, which grounds were reiterated in the Applicant's Supporting Affidavit sworn on 30th March 2026. 9. The Applicant averred that on 30th November 2011, he purchased land parcel No. Bokoli/Chwele/360 from the 1st Defendant/Respondent at a consideration of Kshs. 670,000/=, which he fully paid. He added that the consideration of Kshs. 670,000/= was paid in cash to the 2nd Defendant/Respondent, who was reportedly the estate’s administrator. 10. The Applicant added that upon completion of succession proceedings in respect of the said land, the said land was subdivided, giving rise to land parcel No. Bokoli/Chwele/4961 (“the suit property”), which was registered in the 1st Defendant/Applicant’s name. He thereafter took possession of the suit property and enjoyed its peaceful occupation only for the 1st Defendant/Respondent to unlawfully repossess him of the suit property, hence this suit. 11. The Applicant further averred that he would suffer irreparable loss and damage, including loss of the suit property, if the orders sought are not granted by this court. He added that he had established a prima facie case for the grant of the orders sought and that the balance of convenience tilted in his favour. 12. The 1st Defendant/Respondent opposed the instant Application through a Replying Affidavit sworn on 19th June 2026 by urging this court to dismiss the instant Application for being frivolous, vexatious and an abuse of the court process. 13. He admitted executing the sale of land agreement dated 30th November 2011 together with the 2nd Defendant. He added that the Applicant paid the 2nd Defendant the consideration without his knowledge and that the Plaintiff has never taken possession of the suit property. He further averred that he has been utilizing the suit property. 14. The 2nd Defendant/Respondent, on his part, swore a Replying Affidavit on 22nd April 2026 denying receiving the consideration for the sale of the suit property from the Plaintiff/Applicant. He also stated that he only witnessed the sale of land agreement dated 30th November 2011 as a relative. Further, he averred that since he was not the suit property’s owner, this suit ought to have been instituted against the suit property’s registered owner. 15. It is against this backdrop that the Defendants/Respondents urged this court to dismiss the instant Application with costs. 16. The 2nd Defendant/Respondent and the Applicant also filed their respective written submissions. Those written submissions were largely a rendition of the averments in the 2nd Defendant/Respondent’s and the Applicant’s pleadings. Therefore, it will not serve any purpose to reproduce the same here. **ANALYSIS & DETERMINATION** 1. This court has given due regard to the parties’ pleadings, annexures, as well as the written submissions, and the authorities on record. It is this court’s humble view that the only issue for determination is whether the instant Application is merited. **Whether the Application and the Orders sought are merited** 1. The instant Application seeks interim injunctive orders pending the hearing and determination of this suit. 2. It is the law in this jurisdiction that in determining applications like the instant application, this court must warn itself of the dangers of making definitive findings of fact or law at this interlocutory stage. This is in line with the Court of Appeal’s guidance in **Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125**, where the Court stated: *“…..It is true that the Court is not required at that stage to decide finally whether the evidence is worthy of credit, or whether if believed it is weighty enough to prove the case conclusively: that final determination can only properly be made when the case for the defence has been heard…”* 1. **Similarly, in Lucy Nungari Ngigi & 4 Others -vs- National Bank of Kenya Limited & Anor (2013) eKLR, the court stated as follows on this issue:** ***“....I am also aware that the 1st Defendant has raised issues in respect of the mortgage herein, their right to exercise the statutory power of sale, breach of the addendum, default of repayment of the loan etc. They have also raised some accountability issues from the 2nd Defendant on the purchase price. But even these queries should be reserved for and determined at the trial. These issues are in direct conflict with issues raised by the Plaintiffs and the 2nd Defendant. At this stage I should not make any comments or findings, or express opinions on the substantive issues in controversy in order to avoid hurting the trial herein...” (Emphasis added)*** 1. However, the authorities above do not in any way prevent this court from making definitive findings of law and fact at this interlocutory stage on undisputed facts and law. 2. The principles guiding the grant of an interlocutory injunction in this jurisdiction were set out in **East African Industries vs. Trufoods [1972] EA 420** and **Giella vs. Cassman Brown & Co. Ltd [1973] EA 358. Those principles were restated in Nguruman Limited vs. Jan Bonde Nielsen & 2 Others [2014] eKLR**, where the court rendered itself 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 a temporary injunction is not granted, and*** ***(c) ally any doubts as to (b) by showing that the balance of convenience is in his favour.*** ***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 where there is doubt as to the adequacy of the respective remedies in damages available to either party or both that the question of balance of convenience would arise. The inconvenience to the applicant if interlocutory injunction is refused would be balanced and compared with that of the respondent, if it is granted.”*** 1. A reading of the authority above reveals that an Applicant must surmount the pillars for the grant of the injunctive orders sequentially. Simply put, failure by an Applicant to surmount the first hurdle for the grant of injunctive orders renders the consideration of the other hurdles moot. 2. This court will now proceed to determine whether the Applicant has satisfied the principles for the grant of injunctive orders sequentially. 3. On whether the Applicant has established a prima facie case, this court notes that the parties herein are in agreement that the Plaintiff/Applicant and the Defendants/Respondents executed an agreement for the sale of land parcel number Bokoli/Chwele/360 on 30th November 2011 at a consideration of Kshs. 670,000/=. 4. It is also common ground that succession proceedings with respect to land parcel No. Bokolo/Chwele/360 gave rise to the suit property registered in the joint names of the 1st Defendant/Respondent, Joshua Watila, and Andrew Wekesa Wanyama. 5. The only point of departure between the parties herein is on who received the consideration for the purchase of land parcel No. Bokolo/Chwele/360. Whereas the Applicant averred that the 2nd Defendant/Respondent received the consideration, the 1st Defendant/Respondent took the position that the Plaintiff/Applicant paid the consideration to the 2nd Defendant/Respondent without his knowledge. The 2nd Defendant/Respondent, on his part, denied receiving the said consideration from the Plaintiff/Applicant. 6. The sale of land agreement dated 30th November 2011, which the Defendants/Respondents have not denied its authenticity, shows that the Applicant bought land parcel No. Bokoli/Chwele/360 at a consideration of Kshs. 670,000/=. The said agreement also shows that the Defendants/Respondents acknowledged receipt of the consideration of Kshs. 670,000/= from the Applicant during the execution of the sale of land agreement herein. 7. There is also no dispute that land parcel No. Bokoli/Chwele/360 was later subdivided giving rise to the suit property jointly registered in the names of the 1st Defendant/Respondent, Joshua Watila, and Andrew Wekesa. 8. It is evident from the foregoing that the net effect of the subdivision of land parcel No. Bokoli/Chwele/360 is that if at all the Applicant proves on a balance of probabilities after full trial that he legally bought land parcel No. Bokoli/Chwele/360 from the Defendants/Respondents, then the Applicant would be entitled to a share of the 1st Defendant/Respondent’s share in the suit property or a refund of the consideration if permissible in law. 9. In the **Mrao Ltd Case (supra),** the Court of Appeal defined a prima facie case as follows: *‘…In civil cases, a prima facie case is a case in which, on the material presented to the Court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter. A prima facie case is more than an arguable case. It is not sufficient to raise issues but the evidence must show an infringement of a right, and the probability of success of the applicant’s case upon trial. That is clearly a standard, which is higher than an arguable case.’* 1. Guided by the authority above, it follows that the question at this stage is whether the Defendant/Applicant has demonstrated that there exists a right which has been apparently infringed by the Defendants/Respondents to call for an explanation from the latter. 2. The analysis in paragraphs 22 – 24 above leaves no doubt in this court’s mind that on the face of it, the Applicant ought to be in occupation and use of the land he bought under the sale of land agreement herein. That is not the case at this stage. This is a clear prima facie case of infringement of the Applicant’s property rights under Article 40 of the Constitution by the Defendants/Respondents with a probability of success, which the Defendants/Respondents must be called upon to rebut. 3. In the circumstances, this court finds that the Applicant has established a prima facie case that can only be dislodged or proved with finality after a full trial. 4. As regards proof of irreparable injury, **Halsbury’s Laws of England, 3rd Edition, Volume 21, Paragraph 739, page 352** defines irreparable injury as; ‘injury which is substantial and could never be adequately remedied or atoned for by damages, not injury which cannot possibly be repaired, and the fact that the plaintiff may have a right to recover damages is no objection to the exercise of the jurisdiction by grant of injunction, if his rights cannot be adequately protected or vindicated by damages. Even where the injury is capable of compensation in damages, an injunction may be granted, if the injury in respect of which relief is sought is likely to destroy the subject matter in question.’(Emphasis added) 1. The authority above is instructive that irreparable injury is substantial injury which cannot be remedied through the award of damages, and that even where the injury is capable of compensation in damages, an injunction may be granted if the injury in respect of which relief is sought is likely to destroy the subject matter in question. 2. Be that as it may, this court is also well aware of pronouncements in various High Court decisions that where damage to be suffered by a party can be compensated by way of damages, the court should not grant an injunctive order. Loss of land can be compensated by way of damages since the value of lost land can easily be ascertained. 3. Whereas that argument may sound attractive, this court associates itself with the **holding in Joseph Siro Mosioma v Housing Finance Company of Kenya Limited & 3 Others [2008] eKLR,**where it was stated as follows by **Warsame J** (as he was then): ***“damages is not automatic remedy when deciding whether to grant an injunction or not. Damages is not and cannot be substituted for the loss which is occasioned by a clear breach of the law, in*** ***any case, the financial strength of a party is not always a factor to refuse an injunction. More so, a party cannot be condemned to take damages in lieu of his crystalized right which can be protected by an order of injunction.” (Emphasis added)*** 1. The foregoing shows that the mere fact that one can be awarded damages for denial of an injunction does not deny an Applicant the necessary protection by way of an interim injunction. 2. Were this court to subscribe to the school of thought that where damage to be suffered by a party can be compensated by way of damages, then an injunctive order should not issue, it would inevitably lead to the undesired consequences of parties with financial muscles trampling on people’s rights with reckless abandon knowing so well that the only sanction their unlawful conduct will attract is the payment of damages which they will gladly and comfortably pay. This court cannot countenance such a state of affairs. 3. In addition to the above, and as rightly submitted by the Plaintiff/Applicant’s counsel, the uniqueness of every parcel of land cannot be gainsaid. There must be a reason why the Plaintiff/Applicant bought land parcel number Bokoli/Chwele/360 and not any other parcel of land. 4. Therefore, an award of damages may not adequately compensate the Plaintiff/Applicant if the suit property is not preserved pending the hearing and determination of this suit. 5. It is given that if the suit property is not preserved pending the hearing and determination of this suit, the 1st Defendant/Respondent, Joshua Watila, and Andrew Wekesa Wanyama may use the suit property in any manner they deem fit, including selling the suit property. Such actions may destroy the subject matter and defeat the Applicant’s right to get a share of the suit property if, at the end of the day, this court makes a finding that the Plaintiff/Applicant is entitled to a share of the suit property. 6. In the circumstances, this court holds and finds that if the main suit is ultimately determined in favour of the Plaintiff/Applicant, failing to preserve the suit property at this stage may cause irreparable damage to the Plaintiff/Applicant. 7. Turning to the ingredient of balance of convenience, this court is of the considered view that given that the Applicant has already satisfied the first two ingredients for the grant of injunctive orders, it follows that the balance of convenience tilts in favour of the Applicant. To this end, this court draws inspiration from **Paul Gitonga Wanjau vs. Gathuthis Tea** **Factor Company Ltd & 2 Others [2016] eKLR,** where the Court expressed itself thus on this issue:- ***"…If applicant has a strong case on the merits or there is significant irreparable harm, it may influence the balance in favour of granting an injunction. The court will seek to maintain the***status quo***in determining where the balance of convenience lies.”(Emphasis added)*** **DETERMINATION** 1. The upshot of the foregoing is that the Applicant’s Application dated 30th March 2026 succeeds in the following terms: 2. *The Defendants/Respondents are restrained, whether by themselves, their agents or servants or persons claiming or acting on their behalf, from alienating, leasing, charging, selling, or transferring land parcel number Bokoli/Chwele/4961 pending the hearing and determination of this suit* 3. *The costs of the instant Application will abide the outcome of this suit* **Read, signed, and delivered in open Court at Bungoma this 07th day of July 2026** **T.O. OMONO** **SENIOR RESIDENT MAGISTRATE** **In the presence of:** Ms. Okeng’o h/b for Mr. Wambilianga for the Plaintiff/Applicant C/A: Mr. Rioba