[2024] KEELC 4174 (KLR)

Nirestein & another v Taga & 3 others (Environment & Land Case E003 of 2024) [2024] KEELC 4174 (KLR) (23 May 2024) (Ruling)

Neutral citation: [2024] KEELC 4174 (KLR)

Republic of Kenya

In the Environment and Land Court at Narok

Environment & Land Case E003 of 2024

CG Mbogo, J

May 23, 2024

Between

Michelle S. Nirestein

1st Plaintiff

Mara Napa Camps & Conservation Center Trust

2nd Plaintiff

and

Harrison Pemba Taga

1st Defendant

Miriam Tankua Kashaa

2nd Defendant

Friends of Maasai Mara

3rd Defendant

Mara Napa Camps Limited

4th Defendant

Ruling

1. Before this court for determination is the Notice of Motion Application dated 16th February, 2024 filed by the plaintiffs/applicants and it is expressed to be brought under Sections 1A, 1B, 3A of the Civil Procedure Act, Order 40 Rules 1, 2, 3 & 4 of the Civil Procedure Rules, Sections 13,18 & 19 of the Environment & Land Court Act, Section 38 (2)(b) of the Land Act and Section 26 (1) (a) and (b) of the Land Registration Act seeking the following orders: -1. Spent.2. Spent.3. Spent.4. Spent.5. Spent.6. That the honourable court be pleased to issue an order of injunction restraining the defendants by themselves, agents, servants or otherwise howsoever from selling, charging, leasing, licensing, or in any manner whatsoever disposing of any interests in parcels numbers Cis-Mara/Talek/406, Cis-Mara/Talek/407 and Cis-Mara/Talek/408 situate within Narok County pending the hearing and determination of this suit.7. That the honourable court be pleased to issue an order of injunction restraining the defendants whether by themselves, agents, servants or otherwise howsoever from selling, charging, leasing, licensing, or in any manner whatsoever disposing of any interests in motor vehicles registration numbers KCW 570H, KBT 914A, KCR 333Q, KCS 425A, KDC 168L, KDB 596Y, KCD 122V, KDD 316Y, KBJ 365W, KHMA a 756A 426F Caterpillar, KTCA 977A a new Holland tractor and ZC 5875 & ZE 7317 trailers all purchased by the 1st Plaintiff for use in Mara Napa Luxury Camps pending the hearing and determination of this suit.8. That the honourable court be pleased to issue an order of injunction restraining the defendants whether by themselves, agents, servants or otherwise howsoever from selling, charging, leasing, licensing, or in any manner whatsoever disposing of Mara Napa Luxury Camps or any moveable assets, fixtures and fittings therein pending the hearing and determination of this suit.9. That the honourable court be pleased to issue an order of injunction restraining the defendants whether by themselves, agents, servants or otherwise howsoever from withdrawing and using money from Mara Napa Luxury Camps bank account number 1276588526 (Kenya Shilling Account) and 127738314 (United States Dollars account) held at Kenya Commercial Bank Narok Branch or any other bank accounts opened by the defendants in the name of Mara Napa Luxury Camps, for their own personal use pending the hearing and determination of this suit.10. That pending the hearing and determination of this suit, the honourable court be pleased to order a forensic audit into the accounts and financial statement of Mara Napa Luxury Camps by an independent forensic audit firm to establish any use of money belonging to Mara Napa Luxury Camp for personal, unsupported and/or unathourised use by the defendants herein.11. That the costs of this application be in the cause.

2. The application is premised on the grounds on the face of it. The application is further supported by the affidavit of the 1st plaintiff/ applicant sworn on even date. The 1st plaintiff/ applicant deposed that on or about October 2017, she discussed and agreed with the 1st defendant/respondent to set up a wildlife conservation and cultural education center in the Maasai Mara for the benefit of the Maasai communities and the Maasai Mara ecosystem. She went on to depose that they agreed that she would purchase land in the Maasai Mara to be held by a non-profit entity through which the project would be implemented.

3. The 1st plaintiff/applicant further deposed that in December 2017, the 1st defendant/ respondent informed her that he had identified 5 acres of land that would costs US $ 15,000 which she promptly paid through the 3rd defendant/ respondent. She deposed that she made a further payment of US $ 15,000 for an additional purchase of 5 acres on or about January, 2018 as requested by the 1st defendant/ respondent. She further deposed that she made an additional payment of US$ 17,500 for the purchase of 5 acres after the 1st defendant/ respondent had informed her that he had identified land sometime on 13th December, 2019. The 1st plaintiff/ applicant deposed that she paid a total of US$ 47,500 for the purchase of 15 acres of land which was for the implementation of the charitable project therein, and which would be held by an incorporated charitable entity.

4. The 1st plaintiff/ applicant further deposed that despite providing the money for the acquisition of 15 acres, the 1st defendant/respondent only purchased 9. 5 acres of land which was issued in the name of Friends of Maasai Mara. She went on to depose that 1 acre out of the parcel of land was registered in the name of the 1st defendant/ respondent and Cis-Mara/Talek/408 was registered in the name of Amos Parmuat Kipeen. The 1st plaintiff/ applicant further deposed that the 1st defendant/ respondent used the money for the purchase of 3. 5 acres for himself.

5. The 1st plaintiff/ applicant deposed that the 1st defendant/ respondent had the title for Cis-Mara/Talek/ 406 issued in the name of an unincorporated body named Friends of Maasai Mara at a time when the body did not exist. It was also her deposition that the incorporation of Friends of Maasai Mara finalized the fraudulent acquisition of Cis-Mara/Talek/ 406, 407 and 408 from the intended charitable purposes to privately owned parcels of land. She further deposed that she paid a sum of US$ 1,292,539 for the development of Mara Napa Luxury Camp which is built on Cis-Mara/Talek/ 406, facilitated purchase of fittings and furniture and that she further ensured smooth operation of the camp by purchasing motor vehicles which the 1st defendant/ respondent registered in his personal name.

6. The 1st plaintiff/ applicant further deposed that she provided a sum of US$ 60,000 for the construction of Maasai Mara Cultural Museum which after the camp became operational, the 1st defendant/ respondent began to hedge her out of the project so as to fraudulently convert it to his personal and family property. She deposed that at the time of filing this suit, the 1st defendant/ respondent has completely pushed her out of the venture and has stopped providing financial assistance to the members of the community in accordance with the charitable objects of the project. She went on to depose that she learnt that the 1st defendant/ respondent has begun to dispose off the assets she had purchased and constructed to defeat her claim. She deposed that after incorporating the 4th defendant/ respondent, the 1st and 2nd defendants/ respondents turned the charitable venture into a family owned enterprise through their two companies. That through a letter dated 19th January, 2024, the 1st and 2nd defendants/ respondents ordered her to vacate the suit premises, and cease operating and accessing the company emails, website and online platforms.

7. She further deposed that upon issuing a demand and notice of intention to sue, the defendants/ respondents issued an internal memo shutting down Mara Napa Camps which is detrimental to the business. Further that it is in the interest of justice that the business continues to operate through an independent management team who will give accurate reports to the court until the matter is heard and determined.

8. The said application was filed under a certificate of urgency and having read the notice of motion, this court was satisfied that there was urgency in the matter and proceeded to grant prayers 2, 3, 4, and 5 on temporary basis, for a period of 14 days.

9. The orders which were issued ex-parte on 19th February, 2024, pending the determination of the application, triggered the Notice of Motion dated 13th March, 2024 which was filed by defendants/respondents. The Notice of Motion Application dated 13th March, 2024 is expressed to be brought under Sections 3A and 80 of the Civil Procedure Act, Order 45 Rule 1 and 2 of the Civil Procedure Rules and Section 150 of the Land Act seeking the following orders: -1. Spent.2. That the ex-parte orders of the honourable Justice Mbogo C.G issued on the 19th February, 2024 be reviewed ex debitio justiciae.3. That in the alternative the ex-parte orders of the honourable Justice Mbogo C.G issued on 19th day of February, 2024 be stayed and/ or vacated pending the hearing and determination of this application.4. That the court be pleased to summon the Land Registrar, Narok Sub county to assist the court at arriving at a just and fair determination of the matter.5. That the Officer Commanding Narok Police Station ensure compliance of the orders.6. That the costs of this application be provided for.

10. The application is premised on the grounds inter alia that the defendants/respondents have made a discovery, which they were unable to present at the time of the ex-parte hearing of the plaintiffs’/applicants’ application. Further, that the 1st plaintiff/ applicant is neither a director, nor a shareholder of the 3rd and 4th defendants and does not have beneficial or proprietary interest to bring the application.

11. The application was supported by the affidavit of the 1st defendant sworn on even date. The 1st defendant/ respondent deposed that together with the 3rd defendant/ respondent, they are the absolute proprietors of Cis Mara/Talek/406, Cis Mara/Talek/107 and Cis Mara/ Talek/ 463. The 1st Defendant went on to depose that the 2nd and 3rd defendants/respondents (3rd and 4th defendants/ respondents in the Notice of Motion Application dated 16th February, 2024) have had a history with the 3rd defendant/respondent having leased property from the 4th defendant/respondent which is situated in Maasai Mara where it carries the business of hotels, and lodges for both local and foreign tourists. He further deposed that there are several vehicles under the supervision of the 3rd and 4th defendants/ respondents, and since the orders were issued, they have suffered immense losses and he cannot meet his daily needs and family’s upkeep.

12. The 1st defendant/ respondent further deposed that the 1st plaintiff/ applicant is one of the donors and that she has visited the 3rd and 4th defendants/ respondents on various occasions, and she further developed an interest in the business of the 3rd and 4th defendants/ respondents. That the 1st plaintiff/ applicant preferred being one of the bank signatories of the 3rd and 4th defendants/ respondents(applicants), but the bank denied her approval as she is not a Kenyan citizen. The 1st defendant/respondent deposed that after informing the 1st plaintiff/applicant that it was impossible for her to work in Kenya, she became mad and caused chaos which led to the closure of the business. According to the 1st defendant/ respondent, a donor cannot become a proprietor of property by such acts of charity alone. That it is as a result of the 1st plaintiff’s/ applicant’s uncouth behavior that led to her removal as one of the donors associated with the 3rd and 4th defendants/respondents.

13. The 1st defendant/ respondent deposed that it is now prevalent that the plaintiffs/ applicants misled the court to obtain ex-parte orders by failing to disclose correct information as regards the 2nd plaintiff/ applicant who does not have legal capacity to sue and be sued. He deposed that the orders issued on 19th February, 2024 pose a serious threat to his business and loss projected at Kshs. 291,704,400/- and further the 1st plaintiff/applicant infiltrated the social platforms of the defendants/ respondents and distorted most of the information. He deposed that there are outstanding loans which are due and the business is continuously interrupted which will result to irreparable damage.

14. The 1st defendant/ respondent deposed that their matrimonial home is also situated in the same premises and he is currently an internally displaced person.

15. The 1st plaintiff/ applicant filed a replying affidavit to the application sworn on 19th March, 2024. The 1st plaintiff/ applicant deposed that the instant application dated 13th March, 2024 has been filed by a law firm that is not properly on record since the notice of change of advocates is said to have been filed on 13th May, 2024 and ought to be struck out. The 1st plaintiff/ applicant deposed that the application is bad in law since the same application was made by the defendants/ respondents on 4th March, 2024 and the court ruled that it shall not set aside or vary the orders issued on the said date, which makes the application res judicata.

16. She deposed that the plaintiffs/ applicants are ready to have their application dated 16th February, 2024 determined on merits, whereas the defendants/respondents have chosen not to respond to their application but to file the instant application and a preliminary objection. Further, it was deposed that the court granted the orders in the motion dated 16th February, 2024 ex-parte pending the hearing and determination of the application which is an order not capable of being granted after the inter-partes hearing of the application. She deposed that for the defendants/respondents to obtain orders for review, they must show that the discovery of new and important matter was not within their knowledge at the time when the order was made. It was also deposed that such an order can be granted when a hearing has already taken place and a ruling delivered which is not the case here.

17. The 1st plaintiff/applicant deposed that the instant application has not specified the information said to be left out in the motion dated 16th February, 2024. She deposed that the allegations and accusations levelled against her if true, ought to have been reported to law enforcement which has not been done. She went on to depose that the trust deed was fully registered on 12th February, 2024 by the Registrar which established the 2nd plaintiff/applicant and it is not in any manner a forgery. It was deposed that the issues raised such as directorship and shareholding of the defendants/respondents companies and occupation of the suit properties as their matrimonial home are all factual matters which can be raised in response to their application and not form a basis for review.

18. The 1st plaintiff/ applicant deposed that she never intended to run any business or engage in profit making venture, thus she never needed an investor permit or licenses.

19. The parties herein filed their written submissions with respect to their applications. The plaintiffs/applicants filed their written submissions dated 13th May, 2024 and urged the court to adopt the additional principle of the lower rather than the higher risk of injustice as it was held in the case of Suleiman versus Amboseli Resort Limited [2004] eKLR.

20. The 1st plaintiff/applicant submitted that she has demonstrated through documentary evidence that she single- handedly provided finances for the purchase of the three parcels of land and for the construction of Mara Napa Luxury Camps as per the bank slips. She went on to submit that she has provided evidence showing used provided funds for the motor vehicles and for the construction of a Maasai Mara Cultural Museum built on the suit properties. She submitted that the defendants/ respondents have not claimed that any of them provided the funds for the purchase of the parcels of land, the tourist camp or any of the assets of the subject matter. That having demonstrated that she purchased the assets in this matter, the intention and the objective was towards a charitable cause.

21. The 1st plaintiff/applicant submitted that the 1st defendant/ respondent in acts of utter deceit and fraud, put in place a scheme to fraudulently acquire or transfer the titles to the suit properties to himself. She also submitted that after incorporating the 4th defendant/ respondent, the 1st defendant/ respondent started claiming ownership of Mara Napa Luxury Camps as his own personal property despite the fact that the camp was built through funds that she had provided. It was submitted that the 1st defendant/ respondent began to embezzle funds through income generated from the Camp for his personal and family use.

22. The 1st plaintiff/ applicant submitted that she demonstrated an identifiable legal, proprietary and beneficial rights and interest in the properties which have been infringed by the defendants/ respondents. Turning to the defendants/ respondents application, the plaintiffs/ applicants submitted that the defendants/respondents have solely placed reliance on the fact that the titles for these properties are registered in their name. However, she has provided sufficient evidence that the registration of the suit properties in the names of the defendants/ respondents was acquired fraudulently, illegally or through corrupt means. The plaintiffs/applicants relied on the cases of Giella versus Cassman Brown Limited [1973] EA 348 and Mrao versus First American Bank of Kenya Limited & 2 Others [2003] KLR 125.

23. The plaintiffs/applicants submitted that Section 38 (2) (b) of Land Act provides exemption to the general rule that for sale of land must be in writing but this general rule shall not apply to cases of creation or operation of a resulting, implied or constructive trust. Reliance was placed in the case of Eric Lumosi Asiligwa versus Peter Felix Baumgarner & Another, Court of Appeal Civil Appeal No. 372 of 2018, and Desire Muhinyunza & 2 Others versus Kirimi Koome & 3 Others, Nairobi High Court Civil Case No. E481 of 2023.

24. The plaintiffs/applicants further submitted that there is real risk that the defendants/respondents will dispose off the suit properties to defeat the plaintiffs’/ applicants claim which will pose a threat to the investments made in the interest of the Maasai Mara community. The plaintiffs/applicants relied on the case of Nguruman Limited versus Jan Bonde Nielsen & 2 Others [2014] eKLR. They further submitted that the balance of convenience lies in favour of the grant of the orders sought by the plaintiffs/applicants. She deposed that a grant of the orders of injunction would help maintain and preserve the status quo which would ensure that the suit properties are not lost. They urged the court to take cognizance of the fact that the 1st plaintiff/ applicant made all the investments with a view to benefitting the less privileged members of the community, and that there is a public interest component to this claim and application.

25. In conclusion, the plaintiffs/ applicants submitted that the 1st plaintiff/ applicant resides in the suit property where one tent was set aside as her private residence during the period she is in the country, and that she has continued to take care of the entire property since this suit was instituted.

26. The defendants/respondents filed their written submissions dated 16th May, 2024, where they raised four issues for determination as listed below: -i.Whether the defendants have shown a prima facie case?ii.Whether the 1st respondent a donor can sue for monies donated to charity?iii.Whether an unincorporated body under Section 3 of the Trustees (Perpetual Succession Act) Cap 164 can sue and/or be sued?iv.Whether the applicants have made a good case to justify the grant of the orders for review?

27. On the first issue, the defendants/respondents submitted that they are the registered owners of Cis Mara/Talek/406, Cis Mara/Talek/107 and Cis Mara/Talek/463 which is prima facie evidence of land ownership, and that they are also the registered owners of all the motor vehicles in the attached documents contained in the motion dated 13th March, 2024. The defendants/respondents submitted that they have been thrown out of balance economically, and there is a real threat of their business collapsing as various auctioneers have issued proclamation notices. They submitted that their right to property guaranteed under Article 40 of the Constitution risks being violated by the plaintiffs/ applicants through their continued exclusion from running their businesses and protecting their properties.

28. The defendants/ respondents further submitted that the misuse of ex-parte orders will cause irreparable damage which cannot be adequately compensated by way of damages. They also decried societal effects on the inhabitants of the properties as one is a matrimonial home and their children residence. They relied on the cases of Mrao versus First American Bank of Kenya Limited & 2 Others [2003] eKLR and Nguruman Limited versus Jan Bonde Nielsen & 2 Others [2014] eKLR.

29. On the second issue, the defendants/respondents submitted that the 1st plaintiff/applicant was a donor and a director of Mara Napa Foundation and therefore, the relationship is a donor and donee relationship. They went on to submit that the foundation received funds which she channeled to the official bank accounts of the 3rd and 4th defendants/respondents. They submitted that the 1st plaintiff/applicant cannot appropriate charity funds raised through Mara Napa Foundation as personal savings or monies lent to the defendants. Reliance was placed in the cases of Rose versus Inland Revenue Commissioners [1952] Ch 499 and Twalib Hatayan & Another versus Said Saggar Ahmed Al-Heidy & 5 Others [2015] eKLR.

30. The defendants/respondents submitted that the 1st plaintiff has not produced any agreement to confirm her claim that was in pact with the defendants to invest on her behalf, which portrays that she has interest in their business and nothing else.

31. On the third issue, the defendants/ respondents submitted that the certificate of incorporation is discredited as it does not meet the threshold outlined under Section 7 of the Trustees (Perpetual Succession) Act and that the 2nd plaintiff/ applicant has not complied with the mandatory statutory requirements of registration and had not been issued with a certificate of incorporation by the time of lodging this claim. That in view of that, the 2nd plaintiff/applicant does not have locus standi to lodge this suit.

32. On the fourth issue, the defendants/respondents submitted that they have discovered new and important matter in evidence which after the exercise of due diligence was not within the court’s knowledge or could not be produced at the time when the ex-parte orders were made. They relied on the cases of The King versus The General Commissioners for the Purposes of the Income Tax Act for the District of Kensington [1917] 1 K.B, Sidhu & Another versus Memory Corporation PLC No. Chani 1999/0636/A3,cited in Okiyah Omtatah Okoiti versus Joseph Kinyua & 2 Others [2018] eKLR, Uhuru Highway Development Limited versus Central Bank of Kenya & Others [1995] eKLR, Serengeti Road Services versus CRBD Bank Limited [2011] 2 EA 395, and submitted that the circumstances of this case are of such nature that would warrant this court to exercise its inherent jurisdiction by vacating the said orders.

33. It is necessary that before I proceed further, I address one preliminary issue to the application to avoid any confusion. On 7th May, 2024, the defendants/respondents made an oral application that the Notice of Motion dated 13th March, 2024 be deemed properly filed as a response to the plaintiffs/applicants Notice of Motion dated 16th February, 2024 which the counsel for the plaintiffs/applicants did not object to. The ruling in this matter will address both applications with the hindsight that the latter application is a response.

34. I have carefully analysed the application, the response in form of the motion dated 13th March, 2024 and the written submissions, as well as the authorities cited. I am of the view that the issue for determination is whether the plaintiffs/ applicants have established a prima facie case to warrant grant of the orders sought by this court.

35. In order for a party to be granted a temporary injunction he must pass the test set out in the case of Giella -vs- Cassman Brown [1973] EA 358 which is:(a)Whether the applicant has established a prima facie case;(b)Whether the he or she would suffer irreparable loss that may not be compensated by damages; and(c)That if the court is in doubt, it may rule on a balance of convenience.

36. In the instant case, it was imperative that the plaintiffs/applicants establish a prima facie case by showing their rights and interests in the suit. The 1st plaintiff/ applicant contended that she discussed and agreed with the 1st defendant/respondent to set up a wildlife conservation and cultural education center in the Maasai Mara. She further stated that they agreed that she would purchase land in the Maasai Mara to be held by a non-profit entity through which the project would be implemented. I have perused the copies of documents relied on by the 1st plaintiff/ applicant and pages 16 to 21 are copies of bank transaction indicating movement of monies with details of the said transaction which includes land purchase for conservation centre. The plaintiffs/ applicants annexed copies of official searches on the suit properties which indicate that the suit properties are in the names of the 1st defendant, 3rd defendant and one Kipeen Parmuat Amos.

37. The defendants in their application which is ideally the response to the application refers to different parcels of land which are not in contention in the present case, save for Cis Mara/ Talek/ 406. Based on the foregoing, I am satisfied that the plaintiffs/ applicants have demonstrated an identifiable interest in the suit properties and as such have established a prima facie case.

38. As to whether the plaintiffs/ applicants will suffer irreparable loss if the orders are not granted, the plaintiffs/ applicants contended that there is a real risk and threat that the suit properties may be disposed and owing to the huge investments in this project, they will not be compensated by way of damages. The defendants/ respondents on the other hand decried that they have suffered loss and that the auctioneers have proclaimed some of the properties as a result of loans that have not been paid. In Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] eKLR Justice Munyao stated as follows: “Irreparable injury means that the injury must be one that cannot be adequately compensated for in damages and that the existence of a prima facie case is not itself sufficient. 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 the apprehended injury.”

39. I have weighed the circumstances of the parties and the genesis of the dispute. Doing the best I can, I am of the view that since the plaintiffs/ applicants have shown that they have an identifiable interest as to the ownership of the suit property, the balance of convenience tilts in their favour (of the plaintiffs/ applicants.)

40. I place reliance in the case of Susan Wangari Mburu & 5 Others versus Eldoret Water and Sanitation Company Limited & Another [2020] eKLR, Odeny J, stated that;“Apart from the three principles set out in the Giella case, the court should also look at the circumstances of each case as was held in the case of Jan Bolden Nielsen v Herman Philliipus Steya also known as Hermannus Phillipus Steyn & 2 Others (2012) eKLR, where Mabeya J, remarked as follows:‘I believe that in dealing with an application for an interlocutory injunction, the court is not necessarily bound to the three principles set out in the Giella Vs Cassman Brown case. The court may look at the circumstances of the case generally and the overriding objective of the law. In Suleiman vs Amboseli Resort Ltd (2004) e KLR 589 Ojwang Ag. J (as he then was) at page 607 delivered himself, thus:“… Counsel for the defendant urged that the shape of the law governing the grant of injunctive relief was long ago, in Giella –vs- Cassman Brown, in 1973 cast in stone and no new element may be added to that position. I am not, with respect, in agreement with counsel in that point, for the law has always kept growing to greater levels of refinement, as it expands to cover new situations not exactly foreseen before. Justice Hoffman in the English case of Films Rover Internationale made this point regarding the grant of injunctive relief (1986) 3 All ER 772 at page 780 – 781:“A fundamental principle of ….that the court should take whichever course appears to carry the lower risk of injustice if it should turnout to have been ‘wrong’…”Traditionally, on the basis of the well accepted principles set out by the court of Appeal in Giella Vs Cassman Brown, the court has had to consider the following questions before granting injunctive relief.i.Is there a prima facie case….ii.Does the applicant stand to suffer irreparable harm…iii.On which side does the balance of convenience lie? Even as those must remain the basic tests, it is worth adopting a further, albeit rather special and more intrinsic test which is now in the nature of general principle. The court in responding to prayers for interlocutory injunctive relief, should always opt for the lower rather than the higher risk of injustice…….When dealing with an application for injunction you must consider which option has a lower risk of injustice for a party. Would it be in the interest of justice to grant an order of injunction or decline to do so. Looking at the surrounding circumstances of the case would it be in the interest of justice to stop a sewer line being used by the greater or larger public to stem breakout of disease? The answer would be that the public interest would take a center stage as opposed to the individuals in the name of the applicants herein….”

41. On the other hand, the defendants/respondents sought for a review of the orders or alternatively that the court vacates the ex-parte orders issued on 19th February, 2024. The reason advanced by the defendants/ respondents was that the 1st plaintiff/ applicant is not a shareholder nor is she a director of the 3rd and 4th defendants/ respondents. Further, they contended that they have made a discovery of new and important evidence which warrants the intervention of review.

42. In support of their application, now response, the defendants/ respondents attached copies of title deeds for parcels Cis Mara/ Talek 1407, 406 and 463, email communication and copies of log books of the motor vehicles registered in the names of the 1st defendant. It should be noted that the motion dated 16th February, 2024, was filed under a certificate of urgency. The court upon being satisfied as to the circumstances of the case before it, was convinced that the plaintiffs/applicants had disclosed sufficient material that led to finding that the plaintiffs/ applicants had raised genuine and pertinent issues to warrant the ex-parte orders.

43. At the time of filing the application and as the practice has been that at this stage, the party who can be heard is the one who has filed an application and which the party whom the orders are sought against do not participate in the proceedings which explains ‘ex-parte’ i.e. in the absence of the other party.

44. The said new information said to have been obtained by the defendants/respondents has not been established, and neither does it apply at this juncture and would only be suitable if contained in a response to the application. The ex-parte orders granted were clear that they would subsist for the period intervening before the application is determined. The ex-parte orders by their interim nature, expire upon delivery of the ruling of the application.

45. Having said the above, it is my finding that the application for review dated 13th March, 2024 is rather misplaced and not properly invoked. The court had also earlier on found merit in the Notice of Motion dated 16th February, 2024 and it is hereby allowed in the following terms: -i.That an order of injunction is hereby issued restraining the defendants by themselves, agents, servants or otherwise howsoever from selling, charging, leasing, licensing, or in any manner whatsoever disposing of any interests in parcels numbers Cis-Mara/Talek/406, Cis-Mara/Talek/407 and Cis-Mara/Talek/408 situate within Narok County pending the hearing and determination of this suit.ii.That an order of injunction is hereby issued restraining the defendants whether by themselves, agents, servants or otherwise howsoever from selling, charging, leasing, licensing, or in any manner whatsoever disposing of any interests in motor vehicles registration numbers KCW 570H, KBT 914A, KCR 333Q, KCS 425A, KDC 168L, KDB 596Y, KCD 122V, KDD 316Y, KBJ 365W, KHMA a 756A 426F Caterpillar, KTCA 977A a new Holland tractor and ZC 5875 & ZE 7317 trailers all purchased by the 1st plaintiff for use in Mara Napa Luxury Camps pending the hearing and determination of this suit.iii.That an order of injunction is hereby issued restraining the defendants whether by themselves, agents, servants or otherwise howsoever from selling, charging, leasing, licensing, or in any manner whatsoever disposing of Mara Napa Luxury Camps or any moveable assets, fixtures and fittings therein pending the hearing and determination of this suit.iv.That an order of injunction is hereby issued restraining the defendants whether by themselves, agents, servants or otherwise howsoever from withdrawing and using money from Mara Napa Luxury Camps bank account number 1276588526 (Kenya Shilling Account) and 127738314 (United States Dollars account) held at Kenya Commercial Bank Narok Branch or any other bank accounts opened by the defendants in the name of Mara Napa Luxury Camps, for their own personal use pending the hearing and determination of this suit.v.The costs of this application be in the cause.Orders accordingly.

DATED, SIGNED & DELIVERED VIA EMAIL THIS 23RD DAY OF MAY, 2024. HON. MBOGO C.G.JUDGE23/05/2024. In the presence of: -Mr. Meyoki Pere – C. A