Hong Tai Company Limited v Michael Madara Ogot

Defendant/Respondent by himself, his servants and/or agents or otherwise howsoever from interfering with the Plaintiff/Applicant's quiet enjoyment of the property while observing the Lessee's covenants, pending the hearing and determination of this suit. b) That this Honourable Court be pleased to make such other order or orders in the interest of justice. c) That the costs of this Application be provided for. 2. The Motion is based on the grounds on the face thereof and supported by the affidavit of Shao Wenyuan, the Managing Director of the Plaintiff/Applicant herein of an even date who stated that by a by lease dated 10th October 2016, between the Applicant and the beneficial owner of the property known as L.R. No. 3734/225(hereinafter the suit property), it was agreed that the premises would be leased to the Applicant for a term of 5 years. 3. He deposed that pursuant to the lease, the Applicant, with the requisite approvals from the Nairobi City County, developed structures on the suit property suitable for the commercial purposes for which the premises had been demised and that it duly paid the agreed rent throughout the subsistence of the lease. ELC LC NO. E 154 OF 2026 RULING 2

page 2 of 27

4. It is the Plaintiff’s/Applicant’s case that upon expiry of the initial term of 5 years, they agreed to renew the lease for a further term of five (5) years three (3) months from 1 st March 2020, to 31st May 2025, which was also duly executed and that due to the Applicant's observance of the lease, the parties further agreed to an extension from 1st June 2025, to 31st May 2028, which remains in force to-date. 5. Despite this, he stated, he was surprised to receive a notice from the Respondent dated 3rd July 2025, and 21st August 2025, claiming ownership of the said property and alleging that he was a trespasser thereon. He stated that he is aware that the beneficial owner died on 30th January 2025, but is not aware of any subsequent proceedings vesting the ownership of the suit property in the name of the Respondent herein. 6. Throughout the period of seven (7) years occupied by the Applicant as a tenant, he explained, their dealings have been with the beneficial owner either directly or through his duly appointed agent one David Odera Ogot. The Applicant has never had any dealings with the Respondent over the demised premises and is a total stranger to his claim of ownership of the property. 7. According to Mr Wenyuan, the Respondent issued the Applicant with an eviction notice dated 14th April 2026, requiring it to vacate the suit premises by 24 th April 2026. ELC LC NO. E 154 OF 2026 RULING 3

page 3 of 27

The Applicant contends that, having complied with all the terms of the lease and being in no default, it is entitled to quiet enjoyment of the premises for the full term of the lease. It further asserts that it is not in arrears of rent payable to the duly appointed agent or the estate of the deceased registered proprietor and maintains that the Respondent's claim to ownership and the threatened eviction are misconceived, baseless, and without legal justification. 8. In response to the Motion, the Respondent, Michael Madara Ogot, swore a replying affidavit dated 20 th May, 2026.He acknowledged that he recognized the signature of his late father, Professor Bethwel Alan Ogot, appearing on the lease as that of the lessor. However, he contended that the permitted user of the suit property, as reflected on the title, is residential and not commercial. He averred that the Applicant failed to disclose who authorized the change of user from residential to commercial, maintaining that any such approval could only lawfully be granted by the Nairobi City County. 9. The Respondent further argued that the purported landlord's consent relied upon by the Applicant was undated and, as such, was incapable of conferring any legal rights or validating the alleged change of user. 10. Mr. Ogot explained that although the lease dated 10 th October 2016, permitted the property to be used only as an ELC LC NO. E 154 OF 2026 RULING 4

page 4 of 27

office and as such, the structures erected on the premises are illegal. He stated that he is unable to verify the Applicant's assertions regarding payment of rent, as no evidence has been produced identifying the person who has been receiving the rent. 11. Further, he averred, the signature appearing on the lease dated 1st March 2020, is not that of his late father. According to the Deponent, his father relocated to Kisumu in 2015, where he resided until his demise, and was therefore not in Nairobi on the date the lease was allegedly executed. He similarly denied the authenticity of the signature appearing on the lease extension dated 10th December 2024, and maintained that, in any event, the alleged extension agreement is void for want of consideration as it failed to specify the rent payable. 12. The Defendant/Respondent explained that the Applicant was notified through its advocates that he obtained a Limited Grant of Letters of Administration ad litem for the purpose of instituting the present proceedings. On the Applicant’s assertions that David Odera Ogot is the lessor's agent, he asserted that the same is unsupported. 13. He admitted issuing the eviction notice dated 14 th April 2026, contending that it was lawfully issued. He further averred that the Applicant had failed to disclose who had been receiving rent following the demise of the registered proprietor and had ELC LC NO. E 154 OF 2026 not produced any RULING receipts or 5

page 5 of 27

acknowledgements evidencing payment. According to the Deponent, the Applicant had not paid any rent to him after becoming aware that he was the beneficial owner of the suit property. 14. Mr Ogot urged that he is entitled to the protection of his proprietary rights under Article 40 of the Constitution having produced evidence that the property was bequeathed to him. He maintained that the Applicant has failed to satisfy the principles governing the grant of an interlocutory injunction and failed to make full and frank disclosure by omitting to disclose the existence of the Limited Grant of Letters of Administration ad litem, the identity of the person who has been receiving rent, and the approvals, if any, authorizing the change of user and construction of the semipermanent structures on the suit property. 15. The application dated 24th April, 2026 was filed by the Plaintiff in the second suit pursuant to the provisions of Articles 22, 40 and 159 of the Constitution, Sections 1A, 1B and 3A of the Civil Procedure Act, and Order 40 Rules 1, 2 and 4 of the Civil Procedure Rules, seeking the following relief. i. Pending the hearing and determination of this suit, this Honourable Court be pleased to issue a Mandatory injunction compelling the Respondent/Defendant to give vacant possession ELC LC NO. E 154 OF 2026 RULING 6

page 6 of 27

of the suit premises, being Land Reference Number 3734/225 situated on Owashika Road, Lavington, Nairobi. ii. Pending the hearing and determination of this suit, this Honourable Court be pleased to issue a Mandatory injunction Respondent/Defendant property for alienating, to compelling the cease the commercial leasing, using purposes licensing or and/or otherwise dealing with the suit property. iii. This Honourable Court be pleased to issue an order that the Officer Commanding Police Station, Muthangari do enforce prayer No. 3 above. iv. Pending the hearing and determination of this suit, this Honorable Court be pleased to issue a mandatory order Respondent/Defendant to compelling the demolish and/or remove all illegal and unapproved structures erected on the suit property at its own cost. v. Any other order that may commend itself to this Honourable court to issue. vi. Costs of this Application be provided for. 16. The application is supported by the affidavit of Michael Madara Ogot, the Plaintiff in the second suit, sworn on 24th ELC LC NO. E 154 OF 2026 RULING 7

page 7 of 27

April 2026. He averred that he has the requisite legal capacity to institute the present proceedings by virtue of a Limited Grant of Letters of Administration ad litem issued on 25th March 2026 and that the grant was issued pursuant to the written Will of his late father, Professor Bethwell Allan Ogot, who passed away on 30th January 2025, under which the suit property, LR No. 3734/225, was bequeathed to him. 17. He further deponed that following the bequest, he commenced inquiries into the status of the suit property and established that it was occupied by the Respondent and that in early 2025, he contacted the Respondent through one Mr. Wenyuan Shao, who informed him that the Respondent was in occupation pursuant to a purported tenancy agreement and a landlord's consent, copies of which were subsequently availed to him. 18. Upon reviewing the documents, he noted that the purported tenancy agreement was unsigned, while the alleged landlord's consent had been executed by a person with no legal interest in the suit property and was therefore incapable of creating or authorizing a valid tenancy. 19. He further maintained that, even if the tenancy agreement were enforceable, it expired on 31 st May 2025, rendering the Respondent's continued occupation thereafter unlawful and tantamount to trespass. He added that he subsequently informed the Respondent that the suit property had devolved ELC LC NO. E 154 OF 2026 RULING 8

page 8 of 27

to him under the Will of the deceased and that he intended to exercise his constitutional rights as the beneficial owner. 20. It was his disposition that upon accessing the property, he was astonished to find that the Respondent had erected ancillary semi-permanent structures which were being utilized for commercial purposes. He deponed that he thereafter demanded vacant possession of the property and further required the Respondent to restore it to its original residential activities condition being and undertaken discontinue the commercial thereon. According to the Deponent, the commercial use was unlawful since the property was situated within a residential zone and its registered user, as reflected on the title, was residential. 21. The Respondent, he asserted, deliberately ignored and failed to comply with his demands. Consequently, he instructed the firm of Katiku & Muturi Advocates LLP, who issued a demand letter dated 3rd July 2025, setting out his claim against the Respondent. He added that a further demand letter was subsequently issued and elicited a response from the Respondent's advocates. 22. The Deponent averred that despite informing the Respondent that the suit property had devolved to him, the Respondent declined to surrender vacant possession. Upon the advice of his advocates, he applied for and obtained a Limited Grant of ELC LC NO. E 154 OF 2026 RULING 9

page 9 of 27

Letters of Administration ad litem to enable him institute the present proceedings. 23. He explained that although the firm of Wasuna & Company LLP had already been instructed to obtain a full Grant of Letters of Administration in respect of the deceased's estate, that process was likely to take considerable time, making it necessary to obtain the Limited Grant to safeguard the suit property in the interim. 24. He further deponed that since the demise of the deceased, the Respondent has continuously denied him access to the suit property, refused to surrender vacant possession, and continued to use the premises for commercial purposes. He added that the Respondent has also failed to remove the unauthorized semi-permanent structures erected on the property. He stated that even after obtaining the Limited Grant and issuing a further demand for vacant possession through his advocates, the Respondent remained unwilling to vacate the premises. 25. Mr. Ogot urged that the Respondent's continued occupation of the suit property is unlawful and amounts to trespass. He urged the court to protect his constitutional right to property. Submissions 26. For ease of reference, the parties shall be referred to by their respective designations ELC LC NO. E 154 OF 2026 in LC E154 of RULING 2026. The 10

page 10 of 27

Plaintiff/Applicant filed submissions on 25 th June, 2026. Counsel submitted that the Applicant has established a prima facie case warranting the grant of the injunctive relief sought. 27. It was argued that, by acknowledging the late Professor Bethwell Allan Ogot’s signature on the original lease, the Respondent had admitted its existence and, consequently, the landlord–tenant relationship. 28. According to counsel, the Applicant has been in uninterrupted possession of the suit premises for several years, during which it developed the property, conducted its business and in that regard substantially invested in the premises and employed staff. It was submitted that it also paid the requisite outgoings, all with the knowledge and acquiescence of the registered proprietor. As such, the Respondent is estopped from denying the tenancy. In any event, and as stated in Trouistik Union International & Another vs Jane Mbeyu & Another [1993] eKLR, the death of a lessor does not extinguish the tenancy. 29. It was further argued that the Respondent's Limited Grant of Letters of Administration ad litem did not authorize him to evict a sitting tenant or terminate existing contractual obligations of the estate. Reliance was placed on Section 54 of the Law of Succession Act, Re Estate of Helena Wangechi Njoroge (Deceased) [2015] eKLR where the ELC LC NO. E 154 OF 2026 RULING 11

page 11 of 27

court held that a grant ad litem is limited to prosecuting or defending proceedings and does not confer the broader powers of substantive administration under Section 82 of the Law of Succession Act. 30. Addressing the allegations of fraud and forgery, counsel submitted that they require strict proof and cannot not be resolved on affidavit evidence at the interlocutory stage. Similarly, the validity of the lease renewal and extension documents raise contested questions of fact that ought to be preserved for determination at trial. 31. Counsel submitted that the Applicant will suffer irreparable harm if evicted, as it operates an established business on the suit premises and will face disruption of its operations, goodwill, investments, rendering the suit and nugatory. commercial relationships, Reliance placed was on Nguruman Limited vs Jan Bonde Nielsen & 2 Others [2014] eKLR and Northwest Capital Apartments Limited vs Ohuru [2024] KEELC 1181 (KLR). 32. It was urged that the balance of convenience favours preserving the status quo, given the Applicant's longstanding possession of the suit property. It was further argued that any prejudice likely to be suffered by the Respondent can adequately be compensated by an award of mesne profits or damages should the Applicant ultimately fail at trial. ELC LC NO. E 154 OF 2026 RULING 12

page 12 of 27

33. Reliance was placed on Taj Mall Limited vs Vishva Properties Limited & 3 Others [2024] KEELC 1063 (KLR), where the court reaffirmed that, where there are genuine disputes concerning the parties' legal rights over land, the appropriate course is to preserve the status quo pending determination of the dispute, rather than permit unilateral actions capable of fundamentally altering the subject matter. Counsel also relied on Airland Tours & Travel Ltd vs Gathuthis Tea Factory Company Ltd & 2 Others [2016] eKLR and Suleiman vs Amboseli Resort Limited [2004] eKLR. 34. The Defendant filed written submissions dated 2 nd July 2026. On the issue of locus standi, Counsel submitted that, pursuant to Sections 45(1) and 82 of the Law of Succession Act, only a personal representative holding a grant of representation has the legal capacity to deal with or litigate on behalf of a deceased person's estate. 35. Reliance was placed on Virginia Edith Wamboi Otieno vs Joash Ochieng Ougo & Another ( [1987] KEHC 1 (KLR) and Trouistik Union International & Another vs Jane Mbeyu & Another [1993] eKLR, in which the Court of Appeal affirmed that an estate may only be represented in legal proceedings by a person holding a valid grant of representation. It was submitted that the Respondent had satisfied this requirement by obtaining a Limited Grant of ELC LC NO. E 154 OF 2026 RULING 13

page 13 of 27

Letters of Administration ad litem, and that his locus standi was therefore beyond challenge. 36. Counsel submitted that the Applicant had failed to establish a prima facie case with a probability of success, as its claim was founded entirely on an alleged lease extension for the period between 1st June 2025 and 31st May 2028, without demonstrating that the extension had been executed by a person lawfully authorized to bind the estate of the late Professor Bethwell Allan Ogot. 37. It was further contended that the Applicant's case was undermined by inconsistent pleadings regarding the lease period, thereby failing to establish an enforceable legal right or satisfy the threshold for a prima facie case as set out in Giella v Cassman Brown & Co. Ltd [1973] EA 358. 38. It was also asserted that the Applicant is not entitled to the equitable remedy of an injunction because it approached the court with unclean hands. Relying on Kenya Hotels Limited v Kenya Commercial Bank Ltd & Another [2004] eKLR, counsel argued that the Applicant had breached the terms of the lease by erecting unauthorized structures, converting the premises to commercial use, remaining in occupation after the expiry of the tenancy, and refusing to surrender vacant possession. 39. It was further submitted that although the Applicant alleged that the developments had been approved by the Nairobi ELC LC NO. E 154 OF 2026 RULING 14

page 14 of 27

City County, it had failed to produce any documentary evidence as required under Sections 107 and 109 of the Evidence Act. 40. Counsel further contended that the Applicant had failed to make full and frank disclosure by omitting material facts concerning the alleged lease and the authority of the person who purportedly executed the lease extension after the death of the registered proprietor. Relying on Uhuru Highway Development Ltd vs Central Bank of Kenya & 2 Others [1995] eKLR counsel argued that such material nondisclosure is sufficient to disentitle the Applicant to equitable relief. 41. On irreparable injury, counsel submitted that the Applicant had failed to demonstrate any injury incapable of compensation by an award of damages. It was argued that the alleged disruption to its business, investments and operations constitute purely commercial losses which are readily quantifiable and compensable, thereby failing to satisfy the second limb of the Giella test. 42. Addressing the balance of convenience, counsel submitted that the same favours the Respondent. It was argued that the Respondent is the testamentary beneficiary of the suit property under the deceased's written Will and holds a Limited Grant of Letters of Administration ad litem authorizing him to preserve and protect the estate. In ELC LC NO. E 154 OF 2026 RULING 15

page 15 of 27

contrast, the Applicant remains in occupation solely on the strength of a disputed lease extension. Consequently, it was submitted that the Applicant has no enforceable legal right to remain in possession despite repeated demands for vacant possession. 43. On the Respondent's entitlement to a mandatory injunction, Counsel submitted that the Respondent's right to property is protected under Article 40 of the Constitution and that, as the testamentary beneficiary of the suit property and holder of a Limited Grant of Letters of Administration ad litem, he was properly before the court to preserve and protect the estate. It was contended that the Respondent had satisfied the higher threshold for the grant of an interlocutory mandatory injunction as set out in Locabail International Finance Ltd vs Agroexport [1986] 1 All ER 902 and adopted in Kenya Commercial Bank Ltd vs Benjoh Amalgamated Ltd [1997] eKLR. 44. Counsel further argued that the court ought not to preserve a status quo founded on a continuing trespass or permit equity to be invoked in aid of an illegality. It was submitted that the Applicant had failed to demonstrate that the alleged lease extension was executed by a person lawfully authorized to bind the estate following the death of the registered proprietor and, consequently, had no enforceable legal right to remain in possession. ELC LC NO. E 154 OF 2026 RULING 16

page 16 of 27

Analysis and determination 45. Having considered the pleadings and submissions, the sole issue that arises for determination is whether the Applicant or the Respondent has satisfied the legal threshold for the grant of the interlocutory injunctive orders sought? 46. Vide the present Motions, both the Applicant and the Respondent seek interlocutory reliefs. The Applicant seeks a temporary injunction to restrain interference with its possession of the suit property, whereas the Respondent seeks a mandatory injunction compelling the Applicant to vacate the premises and remove the structures erected thereon. 47. The court will first consider whether the Respondent has met the more stringent threshold for the grant of an interlocutory mandatory injunction before addressing the Applicant's prayer for a temporary injunction. 48. The principles governing the grant of mandatory injunction are well settled. In Halsbury’s Laws of England 4 th Edn. para 948, it was stated thus: “A mandatory injunction can be granted on an interlocutory hearing, but, application in the as well as at the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks it ought to be decided at once, or if ELC LC NO. E 154 OF 2026 RULING 17

page 17 of 27

the act done is a simple and summary one which can be easily remedied, or if the defendant attempted to steal a march on the plaintiff…a mandatory injunction will be granted on an interlocutory application.” 49. Further guidance is found in the case of Locabail International Finance Ltd. vs Agroexport & Others [1986] 1 All ER 901 wherein it was held: “A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances, and then only in clear cases either where the court thought that the matter ought to be decided at once or where the injunction was directed at a simple and summary act which could be easily remedied or where the defendant had attempted to steal a march on the plaintiff. Moreover, before granting a mandatory interlocutory injunction the court had to feel a high degree of assurance that at the trial it would appear that granted, the that injunction being a had rightly different and been higher standard than was required for a prohibitory injunction.” 50. Closer home, the Court of Appeal in Joseph Kaloki t/a Royal Family Assembly ELC LC NO. E 154 OF 2026 vs Nancy Atieno RULING Ouma 18

page 18 of 27

[2020] KECA 831 (KLR) reaffirmed its decision in Kenya Breweries Limited & another vs Washington O. Okeyo [2002] eKLR and stated as follows: “a mandatory injunction can be granted on an interlocutory application as well as at the hearing but should not normally be granted in the absence of special circumstances but that if a case is clear and which the court thinks it ought to be decided at once, a mandatory injunction will be granted at an interlocutory application.” 51. The court also reaffirmed its decision in Shariff Abdi Hassan vs Nadhif Jama Adan [2006] eKLR where it had stated that: “The courts have been reluctant to grant mandatory injunction at the interlocutory stage. However, where it is prima facie established as per the standards spelt out in law as stated above that the party against whom the mandatory injunction is sought is on the wrong, the courts have taken action to ensure that justice is meted out without the need to wait for full hearing of the entire case.” 52. By way of brief background, vide its Plaint, the Applicant contends that it lawfully occupies the suit property pursuant to a lease entered into with the late Professor Bethwell Allan Ogot and subsequent renewals and extensions thereof. It ELC LC NO. E 154 OF 2026 RULING 19

page 19 of 27

maintains that the Respondent's threatened eviction is unlawful and seeks, in the substantive suit, orders protecting its continued occupation. 53. The Respondent, on the other hand, contends that the Applicant has no valid or enforceable lease, that any tenancy either expired or was invalidly extended following the demise of the registered proprietor, and that the Applicant's continued occupation amounts to trespass. 54. Consequently, in his suit, the Respondent seeks declarations that the occupation is unlawful, vacant possession, eviction, demolition of the alleged illegal structures, and damages for trespass, while in the present application he seeks an interlocutory mandatory injunction compelling the Applicant to vacate the suit property. 55. The court has considered the foregoing vis the present motion. To begin with it is undisputed that the Applicant entered the suit property pursuant to a lease executed by the deceased proprietor and has remained in possession thereof. 56. The dispute is whether that tenancy subsists, particularly in light of the contested renewal and extension documents, the permitted use of the property, and the allegations of fraud, forgery and lack of authority. These are issues which require evidence and cannot be conclusively determined at this interlocutory stage. ELC LC NO. E 154 OF 2026 RULING 20

page 20 of 27

57. It is also common ground that the Respondent currently holds a Limited Grant of Letters of Administration ad litem. However, this is limited to instituting the present proceedings and that fact does not, of itself, resolve the validity of the Applicant’s continued occupation or establish a clear and immediate right to vacant possession. 58. In any event, even if the Respondent held a full grant of representation, the question whether his entitlement as the testamentary beneficiary overrides any alleged subsisting contractual rights is a matter for determination at trial. In the circumstances, the Respondent has not satisfied the higher threshold for the grant of an interlocutory mandatory injunctive reliefs sought. 59. Moving next to the Applicants’ plea, the grant of temporary interlocutory injunctions is governed by Order 40 Rule 1 of the Civil Procedure Rules, 2010. The provision empowers the court to issue a temporary injunction where it is demonstrated, by affidavit or otherwise, that the property in dispute is in danger of being wasted, damaged, or alienated, or where a defendant threatens to dispose of property in circumstances that may obstruct or delay the execution of any decree that may ultimately be issued. 60. In determining whether a plea for injunction is merited, the court must have regard to the well-settled principles enunciated in Giella vs Cassman Brown & Co. Ltd [1973] ELC LC NO. E 154 OF 2026 RULING 21

page 21 of 27

EA 358, namely an applicant must establish a prima facie case with a probability of success, demonstrate that irreparable injury would result if the injunction is not granted, and where the court is in doubt, the matter is to be determined on a balance of convenience. 61. These requirements must be satisfied sequentially. As affirmed by the Court of Appeal in Nguruman Limited vs Jan Bonde Nielsen & 2 Others [2014] eKLR, the establishment of a prima facie case, proof of irreparable harm, and the balance of convenience are distinct and logical hurdles, each of which must be satisfied before the court can grant interlocutory injunctive relief. 62. Beginning with a prima facie case, as cited by the parties the same was succinctly defined in Mrao Ltd vs First American Bank of Kenya Ltd & 2 others [2003] eKLR thus: “….So what is a prima facie case? I would say that in civil cases it 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 as to call for an explanation or rebuttal from the latter.” 63. In Nguruman Limited vs Jan Bonde Nielsen & 2 Others(supra), the Court of Appeal affirmed the definition of a prima facie case in Mrao Ltd vs First American Bank ELC LC NO. E 154 OF 2026 RULING 22

page 22 of 27

of Kenya Ltd(supra) and clarified that an applicant must demonstrate a clear and identifiable right that is directly threatened by the act sought to be restrained. The invasion of the right must be substantive and that there must be urgency to prevent irreparable harm. 64. It further held that, at the interlocutory stage, the court does not conduct a mini-trial but only determines whether an applicant has shown a bona fide and arguable claim, proved on a balance of probabilities, which appears more likely than not to ultimately succeed. 65. Applying that principle to the present case, it is common ground that the Applicant entered into possession of the suit premises pursuant to a lease executed by the deceased proprietor and has remained in occupation for several years. The lease expressly permitted the premises to be used as an office/warehouse, and it is not disputed that the Applicant is currently conducting its business thereon. It is equally undisputed that the Respondent seeks vacant possession of the suit property and has demanded that the Applicant vacates the premises. 66. The Respondent's claim for vacant possession is founded on the contention that the Applicant's tenancy is no longer lawful. In that regard, he challenges the validity of the renewal and extension documents, the authority under which they were executed, contends that the additional structures ELC LC NO. E 154 OF 2026 RULING 23

page 23 of 27

are inconsistent with the permitted user under the lease, and alleges fraud and forgery. 67. Those are all contested issues which cannot be conclusively determined on affidavit evidence and will require the production and testing of evidence at trial. In the circumstances, the Applicant has demonstrated an arguable legal interest in the suit property which is threatened by the Respondent's demand for vacant possession and has, accordingly, established a prima facie case with a probability of success. 68. With regard to irreparable harm, the damage caused to the Applicant should be such that it cannot be remedied by damages. In Nguruman Limited vs Jan Bonde Nielsen & 2 Others (supra)the court stated as follows on irreparable injury or damage: “On the second factor, that the applicant must establish that he might otherwise” suffer irreparable injury which cannot be adequately remedied by damages in the absence of an injunction, is a threshold requirement and the burden is on the applicant to demonstrate, prima face, the nature and extent of the injury. Speculative injury will not do; there must be more than an unfounded fear or apprehension on the part of the applicant. The equitable remedy of ELC LC NO. E 154 OF 2026 RULING 24

page 24 of 27

temporary injunction is issued solely to prevent grave and irreparable injury; that is injury that is actual, substantial and demonstrable; injury that cannot “adequately” be compensated by an award of damages. An injury is irreparable where there is no standard by which their amount can be measured with reasonable accuracy or the injury or harm is such a nature that monetary compensation, of whatever amount, will never be adequate remedy.” 69. In the present circumstances, the Applicant operates an established business from the suit premises and has undertaken developments, employed staff and established commercial relationships in reliance on its occupation. Evicting it before determining whether the tenancy subsists or not will substantially disrupt its operations and alter the subject matter of the suit. The resulting prejudice cannot be adequately remedied by an award of damages alone. 70. The balance of convenience also favors the Applicant. It has been in longstanding possession of the suit property, whereas the Respondent has not previously occupied it. Preserving the prevailing position does not defeat the Respondent’s rights as a beneficiary or as the holder of the Limited Grant. It merely defers the question of possession until the validity and termination of the tenancy are determined. Any prejudice suffered by the Respondent may be compensated ELC LC NO. E 154 OF 2026 RULING 25

page 25 of 27

by damages or mesne profits should his claim ultimately succeed. 71. The court therefore finds that the Applicant has satisfied the requirements for the grant of a temporary injunction. In the end, the court finds as follows: i. The application dated 24th April, 2026 be and is hereby dismissed. ii. The application dated 23rd April, 2026, succeeds as follows: a. A temporary injunction does hereby issue restraining himself, his the Defendant/Respondent servants and/or agents by or otherwise howsoever from interfering with the Plaintiff/Applicant's quiet enjoyment of L.R. No. 3734/225 while observing the Lessee's covenants, pending the hearing and determination of this suit. iii. The Defendant shall bear the costs of the two Motions. Dated, signed and delivered virtually in Nairobi this 1 st day of October, 2026. O. A. Angote Judge ELC LC NO. E 154 OF 2026 RULING 26

page 26 of 27

In the presence of; Mr. Onindo for Plaintiff in E 154/2026 Mr. Wanjohi for Plaintiff in E165/2026 No appearance for Defendants Court Assistant: Tracy ELC LC NO. E 154 OF 2026 RULING 27

page 27 of 27