Naum Chepchumba Mutwol v Kibor Arap Busienei

b) That an order do issue directing all the proceeds collected from the tea or any other produce already harvested or to be harvested from the land Nandi/Kipsigak/690 be deposited in a joint interestearning account in the names of the Advocates for the parties herein or in a court-designated account pending the hearing and determination of the suit. c) That the Officer Commanding Station (OCS) Kapsabet Police Station do ensure compliance with any orders granted herein. d) That costs of this application be provided for. 2. The application is premised upon the applicant’s supporting affidavit and the grounds which include; a) The Respondent has unlawfully entered, occupied and remained on the said parcel of land without any legal documentation, ownership claim, or grant of rights from the estate of the deceased for over twenty-seven (27) years. b) The Respondent’s continued occupation and exploitation of the land amounts to intermeddling with the estate of the deceased, in violation of the rights of KAPSABET ELCLC NO. E012 OF 2025- RULING 2

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the lawful beneficiaries and contrary to the provisions of the Law of Succession Act. c) That unless restrained by this Honourable Court, the Respondent will continue exploiting the land and tea plantations and may permanently deprive the Applicant and other beneficiaries of their rightful inheritance. 3. The Defendant/Respondent through Anassi Momanyi and Company Advocates opposed the application by way of a replying affidavit sworn on…He averred in part, that he bought the suit property from the deceased during his lifetime and that the original parcel has since been amalgamated into NANDI/KIPSIGAK/1320 to which he lays claim of ownership. That there have been previous proceedings before Court, touching on the same parties and subject matter, which were dismissed. That therefore, the present proceedings constitute an abuse of the process of the court. 4. The application was heard by written submissions pursuant to Order 51 Rule 16 of the Civil Procedure Rules 2010 and the court’s directions herein. KAPSABET ELCLC NO. E012 OF 2025- RULING 3

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5. The Applicant’s counsel filed submissions dated 22 nd July 2026 referring to the principles governing the grant of temporary injunction as laid down in GIELLA VS CASSMAN BROWN & CO. LTD [1973] EA 358, when the court held that an applicant must establish; i) A prima facie case with a probability of success. ii) That he or she stands to suffer irreparable injury which cannot adequately be compensated by damages; and iii) If in doubt, the application should be decided on a balance of convenience. iv) Whether the Applicant’s application is an abuse of Court process. 6. Counsel submitted that the applicant had established far more than an arguable case having demonstrated the existence of ownership, occupation property. substantial Further that questions concerning and management the injury the of estate complained about transcends ordinary pecuniary loss because it concerns land forming part of the estate of a deceased person KAPSABET ELCLC NO. E012 OF 2025- RULING 4

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which constitutes the inheritance of the beneficiaries of the estate. 7. Additionally, counsel submitted that the balance of convenience tilts greatly in favor of the applicant. That the court should therefore, give orders to preserve the proceeds realized from the tea plantation pending the hearing and determination of the suit. 8. The Respondent/Defendant’s counsel filed submissions dated 14th July 2026 asserting that land parcel number NANDI/KIPSIGAK/690 was non-existent. That it had been subdivided into LR Numbers NANDI/KIPSIGAK/1192 and 1193. That there were previous cases touching on the same subject matter being ELC No. 345 of 2015 and the cases before the Land Disputes Tribunal and Land Disputes Tribunal appeals Committee whose decision was overturned in the High Court at Nakuru in JR No. 64 of 2009. That based on this history, the Applicant had not demonstrated a case which stands a chance of success at the hearing. 9. Further, counsel submitted that the Applicant failed to show any harm that the estate would suffer in the event KAPSABET ELCLC NO. E012 OF 2025- RULING 5

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that the orders are denied and she succeeds at trial. In addition, that the balance of convenience tilts in his favor since he has been in occupation of the land since 1992. 10. Having considered the application, the response thereto and the rival submissions filed in respect of the application, I am of the considered view that the following issues emerge for determination: i. Whether the Applicant has met the threshold for grant of the orders sought in the application? ii. What orders can the court issue in the application to meet the ends of justice? 11. This court is guided by the locus classicus case of GIELLA (supra) where the Court laid down the requirements to be met before a court can grant an interlocutory injunction The requirements are that: i. The Applicant has to establish a prima facie case with a probability of success; ii. That he or she stands to suffer irreparable injury which cannot adequately be compensated by damages; and KAPSABET ELCLC NO. E012 OF 2025- RULING 6

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iii. If in doubt, the application should be decided on a balance of convenience. 12. In the case of NGURUMAN LIMITED –VS- JAN BONDE NIELSEN & 2 OTHERS (2014) eKLR, the Court expounded on the three requirements that the same are separate, distinct and logical hurdles that the applicant must meet and stated as follows: “ 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. 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 KAPSABET ELCLC NO. E012 OF 2025- RULING 7

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the respondent is capable interlocutory order normally granted, be of of paying, injunction however no should 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 frogging” by case does the not applicant permit to “leap- injunction directly without crossing the other hurdles in between”. 13. On a prima facie case with a possibility of success, this Honourable court is guided by the definition of the phrase “prima facie case” from the Court of Appeal decision in MRAO LTD –VS- FIRST AMERICAN BANK OF KENYA LTD & 2 OTHERS (2003) KLR 125 where the Court stated; “a case which, on the material presented to the court, a conclude tribunal that properly there exists directing itself will a which has right apparently been infringed by the opposite party as KAPSABET ELCLC NO. E012 OF 2025- RULING 8

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to call for an explanation or rebuttal from the latter.” 14. It is notable that the applicant has attached several annexures to her further affidavit including a search of the land parcel number NANDI/KIPSIGAK/690 dated 26th November 2024, a copy of the green card of the same property dated 21st July 2025, the decision of the Land Disputes Tribunal appeals Committee and the Nakuru High Court decision. In light of the said documents and the arguments by parties herein. It is not in doubt that the applicant is a beneficiary in the estate of the late Paul Malakwen Mutwol who is shown to have been the original owner of parcel number NANDI/KIPSIGAK/690. A lot has been said about the said title by both parties. Indeed, the applicant has established a prima facie case in respect of the application. 15. As pertains to whether the applicant stands to suffer irreparable harm in the event that the orders sought are denied, it is the applicant’s position that the injury complained of transcends ordinary pecuniary loss because the suit property is not merely an economic asset but KAPSABET ELCLC NO. E012 OF 2025- RULING 9

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constitutes the inheritance of the beneficiaries of the estate of the deceased. She indicated that the Respondent has occupied the suit property for over two decades and the status quo over the same has prevailed during that period. Regardless of who owns the property, there is a certain way the parties have been living on the said property. 16. On that aspect, the Court of Appeal in the Nguruman case (supra) observed as follows; “ 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 temporary injunction is issued solely to prevent grave and irreparable injury; that is KAPSABET ELCLC NO. E012 OF 2025- RULING 10

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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.” 17. The applicant’s contention under paragraphs 32 to 47 of her submissions do not point to a specific actual harm to be suffered. respondent’s continued She has cultivation alleged and that sale of the tea amounts to continued deprivation of the land which lose cannot be quantified. To the contrary, this Court finds that the alleged loss is quantifiable as tea crop can be valued and a figure given which this court can award as compensation to the Applicant. Stopping the cultivation and harvest of tea from the said land is likely to cause the tea and the land to waste away. Essentially, this Court is of the considered view that the applicant has not satisfied KAPSABET ELCLC NO. E012 OF 2025- RULING 11

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this Court to the required standard of the actual harm that they will suffer if the interlocutory injunction is denied and secondly, has failed to show that the said loss cannot be remedied by damages. 18. Moreover, the issues inclusive of trespass and eviction are hotly contested herein which call for hearing of the suit on merit. So, rather than the temporary injunction order sought in the application, the merited order is the maintenance of the Status Quo prevailing over the suit property in order to preserve it, in the interim, pending the outcome of this suit as held in the case of Musa Angira Angira vs ICDC (2015 ) eKLR and Ogada vs Mollin (2009) eKLR. 19. Regarding the other order seeking to have the proceeds collected from the tea or any other produce harvested on the land to be deposited in a joint account pending the determination of the suit, the prayer is grounded on Order 40 Rule 1(a) and (b) of the Civil Procedure Rules, 2010 on temporary injunctions and temporary orders. In Marta Wangeci Kimani v Samuel Kimani Karoki & 5 others [2016] KEHC 4756 (KLR ) KAPSABET ELCLC NO. E012 OF 2025- RULING 12

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Justice Olao was faced with a similar question where an applicant sought to have rental proceeds from a suit property deposited in a joint account. In refusing to grant the order, the Court held; “Clearly therefore, the provisions of Order 40 of the Civil Procedure Rules do not donate to the Court the power to grant the orders sought in prayer No. 3 of the Notice of Motion subject of this ruling. Order 40 of the Civil Procedure Rules only gives protection where the property in dispute is likely to be wasted, damaged, alienated, sold, removed or disposed off before the suit is heard and determined……………any interlocutory orders sought by an applicant prior to the hearing of the main suit must not be at variance with the prayers sought in the suit itself. This is because, it is the substantive prayers in the suit that support the granting of any interlocutory relief before the main trial.” 20. The subject of the current suit is the parcel of land number NANDI/KIPSIGAK/690. It has not been shown that the Respondent intends to waste, damage, alienate, KAPSABET ELCLC NO. E012 OF 2025- RULING 13

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sell or otherwise remove the suit property from the jurisdiction of this Court. This Court does not find a justification of why the proceeds from the said property should be paid into a joint account and how the said proceeds affect the outcome of the suit herein. By the orders sought in the Plaint, the prayer for keeping the proceeds of the tea harvest and any other proceeds from the land in a joint account held by the respective advocates of the parties was not made. I find no utility in granting the order for keeping the proceeds in a joint account as sought in the application. 21. Thus, the application dated 27th May 2025 by the applicant/plaintiff partially fails and this Court hereby makes the following orders: i. An order of status quo is hereby issued to maintain the prevailing circumstances on the suit property pending the hearing and determination of the suit herein. In particular, the parties shall not sell, charge, sub divide, transfer or in any manner dispose of the suit property LR No. Nandi/Kipsigak/690 or any part of it, pending the outcome of the suit. KAPSABET ELCLC NO. E012 OF 2025- RULING 14

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ii. Prayer for deposit of proceeds in a joint account, is disallowed. iii. Parties shall bear their respective costs of this application. 22. Pre trial directions on 4th November 2026. 23. It is so ordered. DATED and DELIVERED at KAPSABET this 30th day of SEPTEMBER 2026. HON. G M A ONGONDO JUDGE In the presence of; 1. Ms. Ingutia M learned counsel for the applicants/plaintiff 2. Mr. Wainaina instructed by Anassi Momanyi and Company Advocates for the respondent/defendant 3. Walter and Emmaculate, court assistants KAPSABET ELCLC NO. E012 OF 2025- RULING 15

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