https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/746

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT AT BUNGOMA** **CIVIL SUIT NO. E105 OF 2026** **GLADYS JEPCHIRCHIR TUITOEK (Suing as the Legal and Personal Representative of TITUS SIKANGULE MUKHWANA (Deceased)………………….…….…...................................................PLAINTIFF** **VERSUS** **AMOS NATEMBEA KISUYA………………………………..1ST DEFENDANT** **TRYPHOSA WALELA MUKHWANA KISUYA………….2ND DEFENDANT** **RULING** 1. Before this court for determination is the Plaintiff/Applicant’s Notice of Motion dated 10th March 2026 under Certificate of Urgency expressed to be brought under section 3, 3A, 3, and 3A and 63(e) and Order 40 Rule 1, 2 and 3 of the Civil Procedure Rules, and all other enabling powers and provisions of the law seeking the following orders: - 2. *Spent* 3. *Spent* 4. *That an order to issue restraining the Defendants by themselves, their agents, workers and/or any other person claiming under them from managing, using, accessing and/or interfering in any manner whatsoever with Crown City School Chwele pending hearing and determination of this suit* 5. *Spent* 6. *That an order do issue freezing bank account number 7715995274, Account Name Crown City School Chwele, and Account Number 7712811918, Account Name Tryphosa Walela Mukhwana Kisuya and Amos Natembeya Kisuya, all at National Bank Bungoma Branch pending the hearing and determination of this suit* 7. *Costs* 8. The instant Application was premised on the grounds on its face, which grounds were reiterated in the Plaintiff/Applicant's Supporting Affidavit sworn on 10th March 2026. 9. The Plaintiff/Applicant averred that she was married to Titus Sikangulule Mukhwana (deceased), who at the time of his death was the sole manager and owner of Crown City School (“the school”), as evidenced by the suit property’s Certificate of Registration of Schools dated 19th December 2013. She added that the deceased also used to run the school’s bank account number 77155995274 held at National Bank Bungoma branch before his demise. 10. She further deposed that upon the deceased’s demise, the Defendants/Respondents unlawfully took over the school’s management and withdrew money from the school’s bank account number 77155995274 held at National Bank Bungoma branch and transferred the money to their joint bank account number 7712511918 held at National Bank Bungoma branch. The Defendants also reportedly directed the school’s parents to deposit school fees and levies in their said joint bank account and denied her access to the school. 11. The Plaintiff/Applicant also averred that the Defendants/Respondents' actions amounted to intermeddling with the deceased’s estate, thus the need for the orders sought to prevent wastage of the deceased’s estate, failure to which she would suffer irreparable damage together with her children. 12. The Defendants/Respondents opposed the instant Application through a Replying Affidavit sworn by the 1st Defendant/Applicant on 26th March 2023 where they maintained that the school was a family legacy property which was managed by the deceased before his demise. They based their position that the school was a family legacy property on the ground that their late dad Joshua Kisiang’ani Kisuya and their mother Rosemary Nakulali Mukhwana donated land parcel number Bokoli/Chwele/2189 as well as Bokoli/Chwele/1655 towards the school’s construction. They described the school as a joint property owned by the Plaintiff/Applicant, the deceased, their late father, as well as their mother but the deceased’s sole property as averred by the Plaintiff/Applicant. 13. They also deponed that their father took over the school’s management after the deceased’s death and proceeded to onboard Christadelphian Meal a Day Fund as a donor to prevent the school from collapsing through the purchase of land parcel numbers Bokoli/Chwele/3067 as well as Bokoli/Chwele/3068 in the interest of vulnerable children. 14. The Defendant/Respondents added that they have all along updated the Plaintiff/Applicant on the school’s operations and that the Plaintiff/Applicant informed them that she could not have time to manage the school due to her teaching career. 15. They urged this court not to grant the restraining orders sought by the Plaintiff/Applicant since the same would be an affront to the prevailing constructive trust in favour of their family with respect to the school. 16. Further, the Defendants/Respondents relied on an Affidavit sworn by Rosemary Nakulali Mukhwana on 26th March 2023 where she denied gifting land to the deceased for the school’s construction. She also deponed in the said Affidavit that the school was a family business registered in the deceased’s name, which her husband took over its management after the deceased’s death. 17. The Plaintiff/Applicant swore a Supplementary Affidavit on 08th July 2026 reiterating that the school was part of the deceased’s estate but not a family legacy property as alleged by the Defendants/Respondents. She accused the Defendants/Respondents of changing the school’s name upon the deceased’s death and unlawfully onboarding a donor in the management of the school. 18. She reiterated that being the deceased’s estate’s administrator, she would suffer irreparable loss incapable of being compensated in monetary terms if the orders she sought were not granted. 19. This court directed that the instant Application be canvassed by way of written submissions. The parties herein filed their respective written submissions which were largely a rendition of the contents of their respective pleadings and annexures on record. **ANALYSIS & DETERMINATION** 1. This court has given due regard to the parties’ pleadings and annexures on record. It is this court’s humble view that the only issue for determination is whether the instant Application is merited. ***Whether the instant Application and the Orders sought are merited*** 1. The Plaintiff/Applicant is seeking injunctive orders at an interlocutory stage. This court is obligated in such circumstances to 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. 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) allay 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. This court’s reading of the authority above is 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 Plaintiff/Applicant has satisfied the principles for the grant of injunctive orders sequentially. 3. On whether the Plaintiff/Applicant has established a prima facie case, the Defendant/Applicant placed before this court the school’s Certificate of Registration dated 19th December 2013 showing that the deceased was the school’s sole registered owner at the time of his death. The Defendants/Respondents, on the other hand, maintained that the school was their family’s legacy property which the deceased managed on their family’s behalf during his lifetime. 4. In the **Mrao Ltd Case (supra),** the Court of Appeal defined a prima facie case as follows: *‘…It may not be easy to define what is meant by “prima facie case”, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence...The terms “prima facie” case, and “genuine and arguable” case do not necessarily mean the same thing, for in using another term, namely a sustainable cause of action, the words “prima facie” are frequently used to refer to a case which shifts the evidential burden of proof, rather than as giving rise to a legal burden of proof in the manner of considering, which was in relation to the pleadings that had been put forward in the case…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.’(Emphasis added)* 1. Guided by the authority above, it follows that the question at this stage is whether the Plaintiff/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 school’s Certificate of Registration and Certificate of Registration of a Business name placed before this court by the Plaintiff/Applicant show that the deceased was and is the school’s registered owner. 3. On the other hand, the Certificate of Registration dated 04th November 2025 and the corresponding Certificate of Registration of a business name filed by the Defendants/Respondents show that the Defendants/Respondents jointly own Crown Town School Chwele. The other Certificate of Registration dated 20th February 2026 produced by the Defendants/Respondents shows that Crown Town School Chwele is owned by the Defendants/Respondents and G. W. Machani, and that Christa Delphian Bible sponsors the said school. 4. Clearly, on the face of it, the school and Crown Town School Chwele jointly owned by the Defendants/Respondents are distinct entities. Whether the school and Crown Town School Chwele are the same entities is a question that can only be determined by this court after full trial. 5. The agreement on record dated 28th August 2013 between the deceased and Rosemary Namukali Mukhwana showing that Rosemary Namukali Mukhwana gifted the deceased half an acre of land hived from land parcel number Bokoli/Chwele/655 for the deceased to construct Hope Initiative Academy pays credence to the Plaintiff/Applicant’s case, at this stage, that the school is not the deceased’s extended family’s legacy project. 6. The foregoing analysis shows that the Plaintiff/Applicant has established a prima-facie case with a probability of success that the school was and is the deceased’s sole property which she is entitled to take over under the Law of Succession. It thus follows that the Plaintiff/Applicant’s right to inherit and manage the deceased’s school has apparently been infringed by the Defendants/Respondents, and there is a need for a rebuttal or an explanation from the Defendants/Respondents. 7. The said prima facie case can only be dislodged by the Defendants/Respondents if they lead evidence sufficient to prove on a balance of probabilities that there exists a constructive trust in favour of their family with respect to the school during the hearing of this suit. 8. In the circumstances, this court finds and holds that the Plaintiff/Applicant has established a prima facie case with a probability of success. 9. On irreparable loss, the Plaintiff/Applicant submitted that if the orders sought are not granted, she would suffer irreparable loss incapable of compensation by way of damages. 10. The Defendants/Respondents submitted that any loss suffered by the Plaintiff/Applicant if the orders sought by the Plaintiff/Applicant are not granted can be remedied by way of damages since any such can be quantified. 11. The Defendants/Respondents’ argument above finds support in several High Court decisions. However, **Halsbury’s Laws of England, 3rd Edition Volume 21, Paragraph 739, page 352** defines irreparable injury as follows; ‘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. It is clear from the authority above that even where the injury to be suffered by a party seeking an injunction is capable of being compensated by way of damages, an injunction may be granted if the subject matter will be destroyed if the injunction sought is not granted. 2. There is no doubt that if the injunctive orders sought herein by the Plaintiff/Applicant are not granted, the Defendants/Respondents will continue dealing with the school in any manner they deem fit, including selling of or leasing the school to a third party, thereby putting the school at the risk of destruction. Selling or leasing the school to a third party during the pendency of this suit will render this suit moot or an academic exercise. The Defendants/Respondents are also likely to use school fees or income from the school as they wish, thereby making it hard for the Plaintiff/Applicant to recover the same from them if this suit is ultimately decided in the Plaintiff/Applicant’s favour. 3. This court also 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 then was): ***“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 holding above by Warsame J (as he then was) resonates well with this court’s school of thought 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. It is against this backdrop that this court finds and holds that if the main suit is ultimately determined in favour of the Defendant/Applicant, failing to preserve the school and its funds or income at this stage may cause irreparable damage to the Plaintiff/Applicant. 3. Lastly, on the balance of convenience, this court has already made findings that the Defendant/Applicant has established to the required standards the first two limbs for the grant of an injunctive order. Therefore, it inevitably follows that the balance of convenience tilts in her favour as stated in **Paul Gitonga Wanjau vs. Gathuthis Tea** **Factor Company Ltd & 2 Others [2016] eKLR,** where the Court expressed itself thus:- ***"…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 on convenience lies.”(Emphasis added)*** 1. The analysis above shows that the Plaintiff/Applicant has surmounted all the hurdles for the grant of an injunction at an interlocutory stage. 2. Be that as it may, this court agrees with Defendants/Respondents that if this court grants prayer (c) in the manner couched by the Plaintiff/Applicant, it will be akin to deciding the school’s ownership dispute between the parties herein at an interlocutory stage without testing the contradictory affidavit evidence on record through cross-examination. 3. This court also agrees with the Defendants/Respondents that prayer (e) sought by the Plaintiff/Applicant is likely to hamper operations at the school, thereby infringing on the school’s learners' constitutional right to education. 4. The circumstances of this case, given the fact that the Plaintiff/Applicant has surmounted all the hurdles for the grant of an injunction and the nature of the subject matter, call for the couching of interim orders in a manner that protects the Plaintiff/Applicant’s interests as well as the school’s learners’ interests. **DETERMINATION** 1. The upshot of the above is that the following orders commend to this court: 2. *The Plaintiff/Applicant and the Defendants/Respondents are granted joint management of Crown City School Chwele pending the hearing and determination of this suit* 3. *The Plaintiff/Applicant and the Defendants/Respondents are granted joint management of* *account number 7715995274, Account Name Crown City School Chwele, and Account Number 7712811918, Account Name Tryphosa Walela Mukhwana Kisuya and Amos Natembeya Kisuya, all held at National Bank Bungoma Branch pending the hearing and determination of this suit* 4. *The Defendants/Respondents to file and serve the statements of accounts for Account Number 7715995274, Account Name Crown City School Chwele, and Account Number 7712811918, Account Name Tryphosa Walela Mukhwana Kisuya and Amos Natembeya Kisuya, all held at National Bank Bungoma Branch, showing all the deposits and withdrawals made in the said accounts from the date of the deceased’s death to date within fourteen (14) days of today* 5. *Parties to comply with Order 11 of the Civil Procedure Rules within thirty (30) days of today* 6. *The costs of the instant Application to abide the outcome of the suit* 7. Orders accordingly. **Read, signed, and delivered in open Court at Bungoma this 30th day of July 2026** **T.O. OMONO** **SENIOR RESIDENT MAGISTRATE** **In the presence of:** Mr. Bwonchiri for the Plaintiff/Applicant Mr. Nakhurenya for the Defendants/Respondents C/A: Mr. Rioba