Juma Iddi Mwasina and Mwanatibu Iddi Mwasina (Suing on behalf of the Estate of the Late Idi Salim Mwasina) v Caleb Osoro Masha & Peter Kuria Kahoni

undertaking any dealings whatsoever with parcel No. Kwale/Shimba Hills/ 2333 in any manner encumbering the said property. e. THAT costs of the Application to be provided for. 3. The application was premised upon the grounds set out therein and supported by the affidavit sworn by JUMA IDDI MWASINA and MWANATIBU IDDI WASINA on 26th May 2026. They deposed; i. That they were the children of the late IDI SALIM MWASINA and the legal representative of the estate. A copy of the Limited Letters of Administration was annexed as “M-1”. ii. That they were compelled to file the application to preserve the status quo as they did not know how the Defendants would deal with the property given that they were challenging the registration of the 2 nd Defendant’s name to the title. That if the property was sub-divided, it would lose its current identity and if sold they would have to pursue third parties. iii. That they were convinced that there was an irregularity as the property belonged to their late father and at the time of his demise, he was still the registered owner. That no transfer could have been done after his death without acquisition of letters of administration. That hey have the original title deed in their possession and that the land registrar indicated on the historical search that the subsequent transfers were a forgery. A copy of the title was annexed as “M-2”. iv. That they became aware of the transfer of the property to the 2 nd Respondent when they visited the Registry to follow up on the succession process, wherein they conducted a search which revealed that 2|Page ELCLC E031 OF 2026

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the land belonged to PETER KURIA KAHONI, the 2 nd Defendant. A copy of the green card is annexed as “M-3”. v. That they visited the property and realized that the same had been occupied by someone else who had put up a perimeter fence and kept herds of cattle therein. They were denied access to the land. Copies of the photographs of the said property were annexed as “M-4”. vi. That the orders sought were harmless and would not occasion prejudice to any party as they sought preservation of the property pending the hearing of the suit. vii. That the 2nd Defendant had caused wanton destruction. That they had lost their house which had been erected on the property and many trees had been brought down. 4. The 2nd Defendant opposed the application vide the Replying Affidavit sworn by PETER KURIA KAHONI, the 2nd Defendant, on 13th July 2026. It was deposed: i. That the 2nd Defendant was the registered proprietor of the suit property having acquired it through lawful means and held its title deed since 07.12.2026 (sic). ii. That he had not entered into any agreement with the Plaintiffs for the sale of the property. iii. That he was a stranger to the alleged fraud in the Plaintiffs’ application and that he was an innocent purchaser for value of the property. iv. That he had not participated in any form of fraud. v. That the Plaintiffs had no prima facie case with a probability of success. 3|Page ELCLC E031 OF 2026

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vi. The 2nd Defendant deposed the maxim nemo dat quod non habet and indicated that the Plaintiffs acquired no interest capable of being protected by an injunction. vii. That the Plaintiffs cannot claim irreparable harm and that their loss, if any, was purely financial as he was presently in possession of the land. viii. That the balance of convenience favors him as the owner of the land. ix. That the application was an abuse of the court process, aimed at harassing the lawful owner of the suit property and sought to have the same dismissed with costs. Submissions by the parties 5. The application was canvassed by way of written submissions. The Plaintiffs’ submissions 6. The Plaintiffs’ counsel filed their submissions dated 21 st July 2026. They reiterated the contents of their Supporting Affidavit. 7. Counsel submitted that the certificate of title issued in the name of the deceased constituted prima facie evidence of their interest in the suit property, being children of the deceased who died intestate. By the time of his death, the property was still in their deceased father’s name and had not been sold or transferred to third parties. It was contended that the Defendants had not tendered any evidence demonstrating the manner in which they acquired the suit property long after the death of the registered owner. The Plaintiffs further submitted that the Land Registrar had confirmed that the impugned transfers were forgeries. 4|Page ELCLC E031 OF 2026

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8. The Plaintiffs submitted that they had established a prima facie case with high chances of success having demonstrated their ownership and nexus to the suit property. It was further submitted that they had invested in the property and that if the property was taken away, they would suffer immense loss. In the alternative, the Plaintiffs urged the Court, if in doubt, to find that the balance of convenience tilted in their favour. They argued that if the injunction was not granted, and the Defendants could dispose of the property, thereby occasioning prejudice to the Plaintiffs should the suit be determined in their favour. They consequently prayed that the application be allowed and that costs be awarded to them. The 2nd Defendant’s submissions 9. The 2nd Defendant’sfiled his submissions dated 27th July 2026. He reiterated the contents of his Replying Affidavit. 10.The 2nd Defendant submitted that he was the registered proprietor of the suit property and that, pursuant to Sections 24(a) and 26(1) of the Land Registration Act, 2012, his title could only be challenged on the grounds of fraud or misrepresentation to which he was proved to be a party. It was contended that the Plaintiffs had not adduced any evidence linking the 2 nd Defendant to the alleged fraud. Accordingly, the 2nd Defendant submitted that the mere allegation of fraud, without evidence, could not constitute a prima facie case. 5|Page ELCLC E031 OF 2026

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11.The 2nd Defendant further submitted that having acquired the suit property lawfully, his title was insulated against unproven claims arising from transactions to which he was a stranger. 12.On the issue of irreparable harm, the 2nd Defendant submitted that the Plaintiffs had failed to demonstrate any injury incapable of being adequately compensated by an award of damages. Conversely, it was submitted that the grant of the injunction would occasion the 2nd Defendant grave prejudice by depriving him of the use and enjoyment of his property and interfering with his constitutional right to property. On the balance of convenience, the 2 nd Defendant urged the Court to maintain the existing status quo, which, in the circumstances, he submitted entailed protection of the registered proprietor. He contended that granting an injunction against a registered proprietor on the basis of speculative and unsubstantiated allegations would be a grave miscarriage of justice. He urged the Court to dismiss the application with costs. Issues for Determination 13.I have carefully read and considered the Plaintiffs’ Application dated 26 th May 2026, the 2nd Defendants’ Replying Affidavit sworn on 13th July 2026, the submissions on record, and the relevant legal provisions. 14.The Court discerns that the issue for determination is whether the Plaintiffs’ application dated 26th May 2026 is merited. Analysis and determination Whether the Plaintiffs’ application dated 26th May 2026 is merited. 6|Page ELCLC E031 OF 2026

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15. The Plaintiffs aver that their deceased father was the registered proprietor of the suit property, that he died intestate and that he had not sold or transferred the property to any third party prior to his death. They dispute the subsequent transfer and registration of the suit property in favour of the Defendants. The Plaintiffs, therefore, seek a temporary injunction restraining the Defendants from alienating or otherwise dealing with the suit property pending the hearing and determination of the suit. 16.The legal framework governing the grant of temporary injunction is set out under Order 40 Rule 1 of the Civil Procedure Rules 2010 and provides: Order 40, Rule 1 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. 17.The principles applicable in an application for an injunction were laid out in the celebrated case of “Giella – Versus - Cassman Brown & Co Limited (1973) EA 358”, where it was stated: 7|Page ELCLC E031 OF 2026

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“First an 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 be adequately compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.” 18.The foregoing principles were restated by the Court of Appeal in Nguruman Limited v Nielsen & 2 others [2014] KECA 606 (KLR) where the Court held that: “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” 8|Page ELCLC E031 OF 2026

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by the applicant to injunction directly without crossing the other hurdles in between. 28.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.” 19.The first requirement an applicant has to demonstrate is that he has a prima facie case with a probability of success. The Court in Mrao Ltd v. First American Bank of Kenya Ltd& 2 Others [2003] eKLR, defined prima facie case as follows; “We reiterate that in considering whether or not a prima facie case has been established, the court does not hold a mini trial and must not examine the merits of the case closely. All that the court is to see is that on the face of it the person applying for an injunction has a right, which has been or is threatened with violation. Positions of the parties are not to be proved in such a manner as to give a final decision in discharging a prima facie case. The applicant need not establish title it is enough if he can show that he has a fair and bona fide question to raise as to the existence of the right, which he alleges. 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.” 9|Page ELCLC E031 OF 2026

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20.The Plaintiffs herein dispute the transfer of the suit property to the 1 st Defendant and later on to the 2nd Defendant. They contend that the property belongs to their late father Idi Salim Mwasina who died in the year 2000 before the land was transferred to any 3rd Party. They contend that after the demise of their father, the suit property could not have been transferred to any party without letters of administration having been issued. 21.In support of their case, the Plaintiffs produced a certified copy of the green card issued on 4th May 2026. The document indicates that the deceased Idi Salim Mwasina was registered as proprietor of the suit property on 4 th April 1995. It further reflects a subsequent transfer to the 1st Defendant on 18th October 2008 and a further transfer to the 2 nd Defendant on 7th December 2016. The entries relating to the impugned transfers to the Defendants bear an inscription indicating that the transfers are disputed as forgeries. 22.The 2nd Defendant, on the other hand, contends that he is the registered proprietor of the suit property and that his title is protected under the Land Registration Act. He maintains that the Plaintiffs have not provided any evidence linking him to any fraud or irregularity in the disputed transactions. 23.The Court is cognizant that at this stage, it is not called upon to determine the issue of ownership, and the validity of the impugned transfers as these are substantive issues which will require examination of the evidence at the trial. 24.The affidavit evidence placed before the Court raises a bona fide question regarding the manner in which the interest of the deceased proprietor was 10 | P a g e ELCLC E031 OF 2026

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transmitted and subsequently registered in the names of the Defendants. I am satisfied that this discloses an arguable claim requiring an explanation and rebuttal at trial. Consequently, the Court finds that the Plaintiffs have established a prima facie case with probability of success. 25.The second consideration is whether the Plaintiffs have demonstrated that they are likely to suffer injury which would not adequately be compensated by an award of damages if the injunction is not granted. 26. The Plaintiffs contend that they have invested in the suit property. However, no evidence has been placed before the Court substantiating the assertion. Accordingly, the assertion of investment, without evidence, does not by itself demonstrate the likelihood of irreparable injury. 27.The Plaintiffs further contend that if the suit property is disposed of pending the determination of this suit, it may introduce third-party interests and complicate the enforcement of any decree that may ultimately be issued in their favour. 28. The 2nd Defendant submitted that the issuance of temporary injunction would cause him prejudice as it would deprive him of his property. 29. The likelihood of alienation of the suit property during the pendency of the suit presents a real risk of altering the substratum of the suit. Such an eventuality would complicate the effective determination and enforcement of the orders that may ultimately be issued by the Court. The injury that would arise therefore may not be compensated adequately by an award of damages. The 11 | P a g e ELCLC E031 OF 2026

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Court therefore finds that the preservation of the subject matter pending trial is warranted. 30.In any event, even if the Court were to entertain doubt as to whether the Plaintiffs have sufficiently demonstrated irreparable injury, the third limb of the Giella test requires consideration of where the balance of convenience lies. 31.In determining where the balance of convenience lies, the Court is required to weigh the competing interests of the parties. The Court takes into account the 2nd Defendant’s status as the registered proprietor and the rights attendant thereto. At the same time, the orders sought are preservatory in nature and are intended to safeguard the suit property pending determination of the parties’ respective rights. The suit property constitutes the substratum of the dispute, and any further disposition during the pendency of the suit may prejudice the determination of the suit. 32.The 2nd Defendant has not demonstrated that preservation of the suit property pending trial would occasion him loss incapable of compensation or otherwise amount to a determination of his proprietary rights. In the circumstances, the balance of convenience favours preservation of the suit property pending the hearing and determination of the suit. 33.The Plaintiffs have also sought an order prohibiting all dealings with the suit property pending the hearing and final determination of the suit. Although the prayer is expressed as an order prohibiting dealings for purposes of preventing fraud or improper dealings, the relief sought is an inhibition against the registration of further dealings with the suit property. 12 | P a g e ELCLC E031 OF 2026

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34.The law governing inhibition is provided for under section 68(1) of the Land Registration Act, which provides that, (1) The court may make an order (hereinafter referred to as an inhibition) inhibiting for a particular time, or until the occurrence of a particular event, or generally until a further order, the registration of any dealing with any land, lease or charge. 35.The purpose of an inhibition order is to preserve the property from acts that would otherwise render a Court order incapable of being executed and/or to give an opportunity to hear and decide the matter as was held in Miriti & another v Kalayu (Civil Appeal E013 of 2023) [2023] KEHC 26632 (KLR). 36.For an order of inhibition to issue, an applicant must fulfill certain conditions as set out in Rosemary Wanjiku Njigi v Nancy Munjiru Ngige [2013] eKLR, where LN Gacheru, J elucidated on the conditions for grant of orders of inhibition to include the following:a. That the suit property is at risk of being disposed of or alienated or transferred to the detriment of the applicant unless preservatory orders of inhibition are issued; b) That the refusal to grant orders of inhibition would render the applicant’s suit nugatory; c)The applicant has an arguable case. 37.As stated hereinabove, the suit property is the substratum of the suit. Allowing further dealings with the property during the pendency of the suit may render the orders that the Court may ultimately issue incapable of execution. The Court 13 | P a g e ELCLC E031 OF 2026

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is therefore satisfied that preservation of the register of the suit property is necessary pending the determination of the suit. 38.In the circumstances, the Court finds that an inhibition under Section 68 of the Land Registration Act is warranted prohibiting the registration of any further dealings with the suit property pending the hearing and final determination of the suit. Conclusion and Disposition 39.Having considered the material before the Court, I am satisfied that the Plaintiffs have established the threshold for the grant of a temporary injunction and orders of inhibition pending the hearing and determination of the suit. 40. Consequently, upon conducting an elaborate analysis of the issues set out herein, this Honourable Court makes the following orders: a. Pending the hearing and determination of the suit, the 2 nd Defendants, by himself his agents, servants and/or anyone claiming right under him or through him is restrained from alienating, selling, developing, encumbering or undertaking any dealings whatsoever with parcel No. Kwale/Shimba Hills/ 2333. b. Pending the hearing and determination of the suit, an inhibition is hereby issued inhibiting the registration of any dealing with parcel of land No. Kwale/Shimba Hills/ 2333. c. Costs of the application shall abide the outcome of the suit. 14 | P a g e ELCLC E031 OF 2026

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Dated, Signed and Delivered virtually via Microsoft teams at Kwale this 25 th day of September 2026. Hon. E.G Nderitu L J ELC Kwale In the presence of: Mr Simiyu Advocate for the Plaintiffs/Applicants Ms Halima C/A 15 | P a g e ELCLC E031 OF 2026

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