[2023] KEELC 18427 (KLR)

Lekiyu v Kipeto Holding Limited (Environment & Land Case E064 of 2022) [2023] KEELC 18427 (KLR) (29 June 2023) (Ruling)

Neutral citation: [2023] KEELC 18427 (KLR)

Republic of Kenya

In the Environment and Land Court at Kajiado

Environment & Land Case E064 of 2022

LC Komingoi, J

June 29, 2023

Between

Nkirumbe Ole Supeyo Lekiyu

Plaintiff

and

Kipeto Holding Limited

Respondent

Ruling

1. This is the Notice of Motion dated August 1, 2022 brought under;(Under Section 63 (e), 1A, 3 & 3A of the Civil Procedure Act, Order 40 Rules 1 (2) and 4 and Order 51 Rule 1 of the Civil Procedure Rules 2010, the Land Act, NO 6 of 2021 and the Land Registration Act NO 3 of 2021).

2. It seeks Orders;1. Spent2. Spent3. That pending the hearing and determination of the Originating Summons, an injunction be and is hereby issued, restraining the defendants whether by their servants, agents, employees or otherwise howsoever from illegally or otherwise interfering with the plaintiff’s quiet possession and enjoyment of the suit Land Reference Number Kajiado/kipeto/2664. 4.That leave be granted by this honourable court to serve all the interested parties who are the Directors and Shareholders of the Defendant herein and share the same Postal Address as per the official Company search conducted on July 25, 2022. 5.The costs of this Application be provided.

3. The grounds are on the face of the application and are set out in paragraphs 1 to 19.

4. The Application is supported by the affidavit sworn by Nkirumbe Ole Supeyo Lekiyu, the Applicant herein sworn on the August 1, 2022.

5. The Application is opposed. There is a Replying Affidavit sworn by George Ngure Kariuki, on the September 29, 2022.

6. The Respondent filed a Chamber Summons dated September 29, 2022 seeking orders;1. That this Honorable Court be pleased to strike out the case as against 1st to 6th Interested party.2. That the costs of the Application be borne by the plaintiff.

7. The grounds are on the face of the application and are set out in paragraphs 1 to 4.

8. The Application is supported by the affidavit sworn by George Ngure Kariuki, the 3rd interested party, on the September 29, 2023.

9. The Application is opposed.There are grounds of opposition filed by the Applicant, dated October 2, 2022.

10. On the October 25, 2022 the Court directed that the two Applications be heard together. It also directed parties to file written submissions.

11. I have considered the Notice of Motion dated August 1, 2022, the affidavit in support and the response thereto. I have also considered the written submissions and the authorities cited. The issues for determination are;i.Whether the Applicant’s application meets the threshold for grant of orders of temporary injunction.ii.Who should bear costs of this application?

12. The principles guiding the grant of temporary injunctions were set down in the case of Giella Vs Cassman Brown & Co Ltd (1973) EA 358. The Court of Appeal in Mrao Ltd Vs First American Bank of Kenya Ltd & 20 Others (2003) eKLR stated what amounts to a prima facie case.

13. In the case of Kenleb Cons Limited Vs New Gatitu Services Station Limited & Another (1990eKLR, Bosire J (as he then was) stated thus;'To succeed in an application for injunction an applicant must not only make a full and frank disclosure of all relevant facts to the just determination of the case but must show he has a right, legal or equitable, which requires procession by injunction'

14. Also in the case of Nguruman Limited Vs Jan Bonde Nielsen & 2 Others (2014)eKLR the Court of Appeal stated as follows;'The party in whom the burden of proving a prima facie case lies must show a clear and unmistakable right to be protected which is directly threatened by an act sought to be restrained, the invasion of the right has to be material and substantive and there must be an urgent necessity to prevent the irreparable damage that may result from the invasion.The standard of proof of that prima facie case is on a balance or as otherwise put, on a preponderance of probabilities. This means no more than that the court takes the view that on the face of it, the applicant’s case is more likely than not to ultimately succeed.'

15. The Applicants case is that he was the original owner of the suit property. He admits that he bequeathed part of the suit property to his son namely James Komoi Nkirimpa for his use.

16. The Respondent’s case is that it is the registered owner of the suit property. It is it’s case that the Applicant has failed to satisfy the conditions for grant of temporary injunction.

17. I find that the Applicant has failed to establish a prima facie case with a probability of success at the trial.

18. Going by the ruling in the Nguruman Case, I find that he (Applicant) has failed to demonstrate that he will suffer irreparable harm that cannot be compensated by an award of damages if these orders are not granted.

19. The upshot of the matter is that I find no merit in this application and the same is dismissed. The costs do abide the outcome of the suit.

20. In respect of the Chamber Summons dated September 29, 2022 the Respondent seeks that the suit against the Interested Parties be struck out. The grounds are that the Interested Parties are shareholders of the Respondent.

21. I agree with the Respondent’s submissions that the Interested Parties who are shareholders of the Respondent are separate and distinct from the Respondent.

22. The Respondent is a legal person capable of suing and being sued.

23. I find Merit in this application and the same is allowed in the following terms;i.That the suit against the 1st to 6th Interested Parties is hereby struck out.ii.That the costs do abide the outcome of the suit.

DATED SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 29TH DAY OF JUNE 2023. L. KOMINGOIJUDGE.