Gabriel Nzila and Anor v Wamunyima Mwiiya Kamikoka (2022/HP/0960) [2024] ZMHC 117 (21 June 2024)

IN THE HIGH COURT FOR ZAMBIA HOLDEN AT LUSAKA ( Civil Jurisdiction) 2022/HP/0960 BETWEEN: GABRIEL NZILA RUUTE MUNGALE KABIKOKA AND -f I / WAMUNYIMA MWIIYA KA MOHIB IBRAHIM MURSAD THE ATTORNEY GENERAL LICOF COURT OF z PRlNClPA-c.. L _ ___, 1 ST PLAINTIFF 2ND PLAINTIFF Apl T DEFENDANT ND DEFENDANT 3RD DEFENDANT Before Justice G. Milimo-Salasini in Chambers on the 21st Day of ' l, June,2024 For the Plaintiff : Mr H. Mulenga and Mr C. Samechi, Messrs For the 1 st Defendant : No Appearance Philsong & Partners For the 2 nd Defendant : Mr Zulu, Messrs Japhet Zulu Advocates For the 3 rd Defendant : Ms A. Chisanga, Attorney-General's Chambers RULING Cases ref erred to: 1. NFC Africa Mining Pie v Techro Zambia Ltd SCZ No. 22 of 2009 2. Twampane Mining Co-operative Society Limited v E and M Storti Mining Limited SCZ No. 20 of 2011 3. Standard Chartered Bank (Z) Pie v Banda App. No. 94 of 2015 Rl ._ 4. Edesi Kazanzale Grehan v New Future Financial Company Limited and 2 others (2020) ZMHC 16 5. Agnes Ngoma v Alphage Investments Limited (2016) ZMHC 136 6. Botswana, Ministry of Works Transport and Communications Rinceau Design Consultants v Mitre Limited (1975) Z. R. 113 7. Zambia Revenue Authority v Jayesh Sha (2001) Z. R 60 8. Chisala v Attorney General (1993) Z. R SJ 19 9. Mwambazi v Morrester Farms Limited (1977) Z. R. 108 10. American Cynamid Co v Ethicon Company Ltd (1975) A. C. 396 11. Shell & BP Zambia Ltd v Coridaris (1975) Z. R. 174 12. Turnkey Properties v Lusaka West Development Co. Ltd; BKS Chiti, Chairman of Telecel (sued as Receiver) and ZSIC (1984) ZLR. 174 13. Preston v Luck (1884) 2. ChD. 49 -( ) Legislation Referred to: 1. Rules of Supreme Court Practice, ( 1999) Edition (White Book) 2. High Court Act, Chapter 27 of the Laws of Zambia 1.0 Introduction 1.1 This is an application for an Order of Interim Injunction filed on 10th June, 2022 by Gabriel Nzila (hereinafter referred to as the 1st plaintiff) one of three administrators appointed by the Local Court as Administrators of the Estate of the late Elijah Habasimbi (hereinafter called "the deceased") by an Order of Appointment of Administrator on 17th February 2012 as per exhibit "GNl" of the Plaintiffs R2 Affidavit in Support also filed on 10th June, 2022. The said exhibit "GNl" states inter alia that Gabriel Nzila, Ruth Mungale and Nice Habasimbi were appointed as administrators of the estate of the late Elijah Habasimbi who died on 11 th February, 2012. I have noted that there is also another Order of Appointment for the above stated names which was obtained on 15th January, 2019 and is also exhibited as "GNl" 1.2 The 1st Plaintiff deposes that the deceased acquired a property known as LSS 16 /M, along new Mumbwa Road, Lusaka. 1.3 That in order to undertake cost effective distribution of the property among the beneficiaries, the family wrote to the Executive Secretary of Lusaka Province Planning Authority, which letter is at exhibit "GN2" in which permission to subdivide the property was being sought. The signatories of the letter were all the beneficiaries of the estate of the late Elijah Habasimbi who were; (i) Ruth Habasimbi (ii) Nice Habasimbi (iii) Makungabe Habasimbi R3 (iv) Fredrick Habasimbi (v) Jesimba Habasimbi 1.4 The 2 nd Plaintiff, also co-administrator was allocated a portion of the property which was L/5516/M/C Lusaka which she developed by building a house. 1. 5 The 1st Defendants mother, also a co-administrator was allocated L/5516/M/B Lusaka and when she wanted to sell her portion, she requested for the Original Title and was given by the 1st Plaintiff in order to facilitate a change of ownership through a potential buyer, with the understanding that the Original Certificate of Title would be returned to the 1st Plaintiff. 1.6 That however, neither the 1st Defendant nor his mother • returned the Certificate of Title thereby compelling the 1st plaintiff to proceed to the Ministry of Lands to undertake a search to ascertain whether the transaction of the 1st Defendant's mother had gone through. 1. 7 Upon consulting the Lands Register which is at exhibit "GN3" collectively, the following was revealed; (i) At entry No.1 is a Deed of Transfer for property L/5516/M which was transferred from MUNYEU R4 deceased to PATEL AVAZ ABOUL AZIZ on 26th August, 2019. (vii) At Entry No. 7 the property was re-registered on 26th August, 2016 with a new Certificate of Title CT- 62897 in the name of the deceased. (viii) At Entry No.8 is an Assignment of subdivision "B" of L/5516 from Gabriel Nzila, Ruth Mungale and Nice Habasimbi to Huixing Investment Limited which was registered on 4th October, 2019 (ix) At Entry No. 9 is a registration of a Certificate of Title CT-6487 in the name of the deceased and made on 4th October, 2019. (x) At Entry No. 10 is an Order of Appointment of Administrator for Wamunyima Mwiiya Kabikoka (as administrator of the estate of late Elijah Habasimbi) which was registered on 28th June, 2021 with the High Court for Zambia as 1st Party and Wamunyima Mwiinga Kabikoka as the 2 nd Party. (xi) At Entry No. 11 is a Deed of Assent registered on 28th June 2021 in the name of Wamunyima Mwiiya R6 Kabikoka (as administrator of the estate of late Elijah Habasimbi) (xii) At Entry No. 12 is a Certificate of Title No. CT-103217 in the name of Wamunyima Mwiiya Kabikoka and registered on 28th June, 2021. 1.8 Upon making the above discovery, particularly entries 10, 11 and 12 of the Lands Register, a handwritten note was issued to one Mrs Chisupa with a date stamp of 20th August, 2021 for Ministry of Lands. The note is exhibit "GN4" and it contains an enquiry regarding entries 10, 11 and 12 of the register. While the author of the exhibit "GN4 is not shown, the 1st Plaintiff deposes that he notified the Principal Registrar of Lands for intervention of entries 10, 11 and 12 of the Lands Register. 1. 9 The deponent further states that it was later discovered that the 1st Defendant, despite having no interest in the property as a beneficiary to the deceased's estate, had gifted the entire estate to himself by a Deed of Assent. 1.10 That while entry No. 11 of the Lands Register indicates that the 1st Defendant had, obtained letters of administration from the High Court of Zambia, R7 investigations revealed that in fact, the 1st Defendant did on 19th January, 2021 obtain letters of administration from the Lusaka Boma Court by misrepresentation and fraudulent means thereby causing the property to transfer to himself. 1.11 That upon transferring the property to himself, the 1st Defendant sold the property to one MOHIB IBRAHIM MURSAD (hereinafter called the 2 nd Defendant). That the 2 nd Defendant purchased the property from the 1st Defendant without undertaking the necessary due diligence of physical inspection of the property and an inspection of the Lands Register at Lands and Deeds Registry of the Ministry of Lands which resulted into execution of an Assignment of the 1st Defendant mother's portion on 9 th September, 2021 as shown at Entry No. 1 of exhibit "GN6" of the affidavit in support. 1.12 That the conduct of the 1st Defendant was reported to the Zambia Police Service upon which the 1st Defendant was arrested and he surrendered the Certificate of Title which is now in his name. R8 1.13 It is further deposed that efforts by the 1st Plaintiff to verify the letters of Administration that the 1st Defendant used to assign the property to the 2nd Defendant through a letter to the Chief Registrar of Lands and Deeds on 25th January, 2022 proved futile for the reason that to date there has been no response from the Chief Registrar to the letter at exhibit "GN7''. 1.14 It is the 1st Plaintiff contention that the 1st Defendant has no right to assign the property of the estate of the deceased, nor does he have a right to sell the property to the 2 nd Defendant. That the 2 nd Defendant is not an innocent purchaser for value without notice because he had constructive notice by virtue of the houses that have been built on the property by the Plain tiffs and yet he proceeded to purchase the property from the 1st Defendant at his own peril. 1.15 The Plaintiff therefore avers that an interim injunction to restrain the 1st Defendant from selling the remainder of the subdivisions of the property as a purported administrator of the estate of the deceased, ought to be granted by this Court. R9 1.16 An Ex parte Order injunction was not granted and instead an inter parte hearing was set for 3 rd August, 2022. 2.0 Application of 2 nd Defendant to Set aside Writ of Summons for irregularities 2 .1 Before the return date of the inter parte hearing of 3 rd August, 2022, the 2 nd Defendant circumvented the proceedings on 25th July, 2022, by filing a Memorandum of Appearance without a Defence and instead, filing an application to set aside the Writ of Summons of 10th June, 2022 for irregularity pursuant to Order VII Rule 1 (a) of the High Court Rules as amended by Statutory Instrument No.27 of 2012 and to dismiss the action for incompetence pursuant to Order XIV (1) and Order III (2) of the High Court Rules of the High Court Act, Chapter 27 of the Laws of Zambia. 2.2 In an Affidavit in Support which was sworn by the 2 nd Defendant it was deposed that; 2.2 . 1 When the Plaintiffs commenced the action by way of Writ of Summons on 10th June, 2022 both the 1st and 2 nd Plaintiffs postal and electronic R 10 addresses were not endorsed . The Writ of Summons was exhibited as "MIM 1 ". 2.2 .2 That it is a requirement (of the rules of Court) to endorse the Plaintiffs' postal and electronic addresses respectively on the Writ of Summons. 2 .2 .3 Further, that the Plaintiff have not cited any capacity in which they have brought the action on behalf of the estate of the late Elijah Habasimbi. The Writ of Summons and Statement of Claim were exhibited as "MIM2" collectively. 2 .3 The 2 nd Defendant also filed a List of Authorities and Skeleton Argument also on 25th July, 2022 . 2.3 . 1 The 2nd Defendant cited Order VII rule l(a) of the High Court Rules which provides that: "l(i) The advocate of a plaintiff suing by an advocate shall endorse upon the Write of Summons (a) The address of the Plaintiff'' It is argued that the above rule of endorsing a postal and electronic address for the 1s t and 2 nd Plaintiff is mandatory. To buttress the argument counsel for the 2nd Defendant cited the case of NFC AFRICA MINING PLC V TECHNO ZAMBIA LIMITED 1 where the Court R11 e ... pronounced itself on the need to strictly adhere to rules of Court. In addition, the case of TWAMPANE MINING CORPORATION SOCIETY LIMITED V E & M STORTI MINING LIMITED2 where the Supreme Court held inter alia that; "6. Those who choose to ignore rules of court do so at their own peril". 2.3.2 The 2 nd Defendant further argues that if the court finds that the irregularity is curable, then the 2 nd Defendant is entitled to costs . The case of STANDARD CHARTERED BANK(Z) PLC V BANDA3 , was relied upon in which Malila, JS (as he then was) stated; "if an irregularity can be cured without undue prejudice then it is desirable that such irregularity be put right subject to an order as to costs against the erring party." 2.3.3 On the question of the requirement to indicate a representative capacity on a Writ of Summons, Counsel cited Order XIV rule 1 of the High Court Rules which provides that; "if any plaintiff sues, or any defendant is sued, in R 12 any representative capacity, it shall be expressed on the writ ........ " 2.3.4 The 2 nd Defendant argues, and rightly so, that the Plaintiffs have not disclosed the representative capacities as administrators or any other interest or capacity in which they bring the action. 2 .3.5 That failure by the Plaintiffs not to disclose their representative capacities in bringing the action against the 2 nd Defendant renders the action incompetent and having no locus standi. That therefore the action should be dismissed for contravening the rules of court. The 2nd Defendant prays for costs. 3.0 Plaintiffs Affidavit in Opposition to the application to set aside Writ of Summons for irregularity. 3.1 The Plaintiffs Affidavit in Opposition to the 2 nd Defendant's application to set aside the Writ of Summons for irregularity and to dismiss the action for incompetence was only filed eight months later on 10th February, 2023, with skeleton Arguments. 3.2 Albeit, in the interest of justice, this Court found it necessary to consider the Plaintiffs response. R13 3.3 The Plaintiff responded in opposition by stating in is Affidavit dated 10th February 2023 that contrary to the 2nd Defendant's argument that the postal address of the Plaintiffs was not endorsed on the Write of Summons in fact the postal address was endorsed for the 1st and 2 nd Plaintiff. 3.4 I do not accept the Plaintiffs position because the Writ of Summons filed on 10th June, 2022 clearly shows that indeed the Writ of Summons was not endorsed at all with the 1s t or 2nd Plaintiffs addresses and I agree with the 2 nd Defendant that the Plaintiffs Writ of summons is irregular. 3.5 However, the irregularity is curable and in accordance with the Supreme Court decision of STANDARD CHARTERED BANK V BANDA (Supra) the irregularity can be cured with costs to the 2nd Defendant, which costs I hereby grant. 3 .6 Secondly in response to the 2 nd Defendants argument that the Plaintiffs have contravened the rules of the court by not indicating their representative capacities in the Writ of Summons and Statement of Claim, the Plaintiff argues that the action before court is not in a representative capacity but in an individual capacity of the 1st Plaintiff as R 14 an interested party intending to apply for letters of administration and the 2 nd Plaintiffs capacity is that of beneficiary of the estate of the late Elijah Habasimbi, as stated in paragraph 2 of the statement of claim. The Plaintiff concluded by stating that should this court find that the Plaintiffs have not been sufficiently cited the same it can be cured without prejudice to the Defendant. 3. 7 The Plaintiff also brought to the Courts attention, the perverse conduct of the 2 nd Defendant in delaying to serve the summons to set aside the Writ for irregularity to the Plaintiffs in good time. That while the 2 nd Defendant filed the summons to set aside into court on 25th July, 2022, the Plaintiff were only served on 25th January, 2023. 3.8 That this conduct by the 2 nd Defendant was in contravention of Order 2 rule 2 of the Rules of the Supreme Court of England ( 1999 Edition White Book) which provides that an application to set aside for irregularity any proceedings or any document, judgment or order therein shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity. The R 15 • Plaintiff argues that the application of 25 th July 2022 was only served on the Plaintiffs on 25 th January, 2023 which is not within "a reasonable time". Counsel for the Plaintiffs referred me to the case of EDESI KASANZALE GREHAN V NEW FUTURE FINANCIAL COMPANY LIMITED and 2 OTHERS4 where my learned brother Bawa J addressed the issue of making an application to set aside a summon timeously; a decision I have considered and noted. 3.9 The Plaintiffs proceed to argue that not only was the 2 nd Defendant's application not served on the Plaintiff timeously but it was made after (and not before) fresh steps to defend the action, that is the filing of an Affidavit in Opposition to the Plaintiff application for an interim injunction on 24th August, 2022. 3.10 The Plaintiff prays that the 2 nd Defendant's application to set aside the Writ should be dismissed for non-compliance with Order 2 rule 2 of the Rules of the Supreme Court. It is also the Plaintiffs prayer, in the alternative, that should the Plaintiffs grounds lack sufficiency to dismiss the application, it submits that the failure to include the physical, postal or electronic addresses is not fatal and can R 16 be cured. The Plaintiffs have cited the cases of AGNES NGOMA V ALPHAGE INVESTMENT LIMITED5 and BOTSWANA, MINISTRY OF WORKS TRANSPORT AND COMMUNICATIONS RINCEAU DESIGN CONSULTANTS (sued as a firm previously trading as KZ Architects) v MITRE LIMITED6 which I have noted. I also note the case of ZAMBIA REVENUE AUTHORITY V JAYESH SHAH7 . 3 .11 On the issue of the Plaintiffs failure by their Advocate to include the capacities in which the Plaintiffs bring the action, it is the Plaintiffs averment that, as argued previously, failure to follow regulatory rules is not fatal to an action and can be cured. 3 . 12 The Plaintiffs further argue that the Statement of Claim of 10th June, 2022 actually explains the capacities in which the Plaintiffs commence the action. It is submitted that by the date of 10th June, 2022 when the action was commenced, the Plaintiffs only had letters of administration from the Local Court, which were null and void as the value of the estate exceeded the prescribed maximum of KS0.00 (fifty Kwacha) for the jurisdiction of R 17 a Local Court and could not be referred to as administrators of the estate of the deceased. 3.13 That additionally, the 2 nd Plaintiff is suing in her personal and individual capacity as a beneficiary of the deceased's estate. 3.14 The Plaintiffs argue that the 2 nd Defendant's application relating to the omission of capacities of the Plaintiffs lacks merit and should also be dismissed. Again, the Plaintiff prays that should the Court find that the 2 nd Defendant's application has merit, the omissions are curable. To buttress the submission the Plaintiffs cited the cases of CHISATA V ATTORNEY GENERAL8 and MWAMBAZI V MORRESTER FARMS LIMITED9 . 3.15 In conclusion, the Plaintiff submits that the 2 nd Defendant's application lacks merit as the law makes provision for rules of procedure to be cured by an erring party by amending the Writ of Summons and Statement of claim and granting costs to the other party. 4.0 Decision 4.1 Upon considering the 2 nd Defendants application and the Plaintiffs response, in the Affidavits and Skeleton R 18 Arguments of both parties, for which I am indebted, I must say at the outset that it is a source of concern that rules of Court which are cardinal to the wheels of justice to turn efficiently and expeditiously, are not being strictly adhered to by advocates who represent their clients. There is a plethora of decisions that place emphasis on the need to adhere to Rules of Cout, be they rules of the superior courts and lower courts. I therefore urge advocates to strictly adhere to the Rules of Court in order not to cause detriment to their clients. I wish to refer to the holdings in the following cases: (i) TWAMPANE MINING CO-OPERATIVE SOCIETY LIMITED V E. M STORTI (Supra) the Supreme Court held that; "5. It is important to adhere to Rules of Court in order to ensure that matters are heard in an orderly and expeditious manner. 6. Those who choose to ignore rules of court do so at their own peril". (ii) In NFC AFRICA MINING PLC V TECHRO ZAMBIA LIMITED (Supra), Sakala CJ held that; "1. Rules of Court are intended to assist in the proper and orderly administration of justice and as such they must be strictly adhered to." R 19 4.2 However I also take cognizance of the fact that some rules of court are of procedure and are regulatory and are not fatal to an action as any omission of such rules is curable by an amendment. Order 2 Rule 1 of the Rules of the Supreme Court ( 1999 Edition White Book) which the Plaintiffs rely on provides; "1-(i) where in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has by reason of anything done or left undone been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any steps taken in the proceedings or any document, judgment or order therein". I also considered the case of STANDARD CHARTERED BANK (PLC) V JOHN M. C. BANDA (Supra), where Malila JS (as he then was) stated at Jl0 that; " .. . rules should generally not be used as a minefield for parties who make fairly inadvertent mistakes that translate into no tangible prejudice to the other party. If an irregularity can be cured without prejudice, then it is desirable that such irregularity be put right subject to an order as to costs against the erring party". R 20 ' From the above authorities cited by the Plaintiffs, I am of the firm view that the omissions of not endorsing the physical, postal and electronic addresses of the 1st and 2 nd Plaintiff is not fatal to the action but is curable. I also hold that the capacities of the Plaintiffs can also be properly stated on the Writ of Summons and Statement of Claim, by amending both the Writ of Summons filed on 10th June, 2022 and the Statement of Claim. 4.2 I therefore find no merit in the 2 nd Defendants application for the reason that the law provides for curing any irregularity where the party affected will not be prejudiced; as is the case for the 2 nd Defendant. No prejudice shall occasion upon the 2 nd Defendant, should the Writ of Summons be endorsed and the capacities under which the Plaintiffs sue is indicated by way of amendment. I therefore dismiss the 2 nd Defendants application. However, the omission by the Plaintiff cannot be ignored and to that end, the Plaintiff is hereby condemned in costs for the 2 nd Defendant which costs should be paid 30 days after this order. R 21 ' 4.3 Lastly, I order that the Plaintiff amend the Writ of Summons and Statement of Claim in accordance with the rules of Court within 14 days from the date of this order. 5.0 Inter parte hearing of Injunction application 5.1 Having determined that the 2 nd Defendants application to have the action dismissed cannot be granted, I hereby proceed to consider the application for an interim injunction filed by the Plaintiffs. 5.2 An inter parte hearing was held on 3 rd August, 2022. Counsel for the Plaintiff Mr. H. Mulenga of Messrs Philsong & Partners was present while neither the 1st Defendant nor the 2 nd Defendant were present. The 3 rd Defendant was represented by Ms. A. Chisanga, Senior State Advocate from the Attorney General's Chambers. Mr. Mulenga informed the court that Counsel for the 2 nd Defendant Mr. Zulu of Messrs J aphet Zulu Advocates requested for an adjournment in order to obtain proper instruction and that the Plaintiffs had no objection. Counsel for the Attorney General also did not object. Therefore, the matter was adjourned to 25th August, 2022 at 09:00 hours and later to 16th September, 2022. R 22 5.3 Meanwhile, on 16th August, 2022, Counsel for the Attorney General, Ms. A. Chisanga filed an Affidavit in Opposition to the application for an interim injunction. 5.4 According to the Affidavit, Counsel for the Attorney General deposed that the 1st Plaintiffs application is predominantly against the 1st and 2 nd Defendants . Acompanying the Affidavit was a List of Authorities and Skeleton Arguments in which Counsel cited Section 16 (2) of the State Proceedings Act, Chapter 71 of the Laws of Zambia which provides that: "16(1) ..... . (2) The court shall not in any civil proceedings grant any order against a public officer if the effect of granting the injunction or making the order would be to give any relief against the state which could not have been obtained in proceedings against the state". 5.5 It is the Attorney General's position that the effect of the provision is that injunctive reliefs cannot be granted against the State and therefore the Plaintiffs application does not affect the 3 rd Defendant. 5.6 I considered the provision stated above and agree with Counsel for the Attorney General that the injunction does R 23 not apply to the Attorney General. 6.0 2 nd Defendants Affidavit in Opposition to the Interim Injunction 6.1 On 24th August, 2022, the 2 nd Defendant filed an Affidavit in Opposition to the Plaintiffs application for an Interim Injunction. The deponent states that he is the legal owner of Lot 5516/M/C and is therefore entitled to quiet possession of the land as a registered owner. To support his contention, the 2 nd Defendant exhibited copies of the Lands Register as "MIMl" where at Entry No. 12 a Certificate of Title No. CT-103217 is registered as well as; copy of Certificate of Title No. 103217 in the names of Wamunyima Mwiiya Kabikoka as exhibit "MIM2"; and a Certificate of Title No. 103217 in the name of the 2 nd Defendant as "MIM3" for Lot 5516/M/C. 6.3 The deponent further states that no allegation of fraud by the 1st and 2 nd Plaintiffs was made against him therefore the Plaintiffs reliefs are not clear enough to warrant the granting of an injunction, nor is there a serious question to be tried against him. To that end, the 2nd Defendant refers to the Statement of Claim filed on 10th June, 2022 R 24 I . • which he exhibits as "MIM 4". 6.4 He further deposed that the Plaintiffs have been threatening violence and denying him access to the land. 6.5 The 2 nd Defendant argues that should the injunction preventing him from entering on the land, in which he purchased be granted, he will be prejudiced and inconvenienced. 6.6 The 2 nd Defendant concluded by arguing that the Plaintiffs have not shown any clear right to relief and no irreparable injury caused to them by the 2 nd Defendant which cannot be atoned for in damages. 6. 7 A list of authorities and skeleton arguments was also filed in which the 2 nd Defendant outlined the conditions to be met for an interim injunction to be granted. I take note of the celebrated case of American Cynamid Company v Ethecon 10 as well as the cases of Shell and BP Zambia Ltd v Corridaris 11 Turnkey Properties v Lusaka West Development Co Ltd BSk Chili, Charman of Telecel (sued as Receiver) and ZSIC 12 ; and Preston v Luck13 . 6 .8 The 2 nd Defendant reiterates that the Plaintiffs are not entitled to an injunction and the application should be R 25 • dismissed with costs to the 2 nd Defendant. 7.0 Plaintiff's Affidavit in Reply 7.1 In response to the 2 nd Defendant Affidavit in Opposition the Plaintiff filed a Reply on 22 nd September, 2022 in which they dispute the 2 nd Defendant legal ownership of the property as it was fraudulently obtained through misrepresentation. That the 2 nd Defendant had constructive notice and cannot use the Certificate of Title which was obtained fraudulently to claim ownership. That in fact the 2 nd Defendant's claim that he is a purchaser for value without notice cannot stand neither can he claim irreparable loss and inconvenience which cannot be atoned for in damages. 7.2 The Plaintiffs concluded by stating that it is the Plaintiffs who will suffer irreparable injuries because their children and workers reside on the property where they conduct farming as a source of livelihood. 7 .3 The Plaintiffs reiterate that they have a clear right to relief and there is a serious question to be tried and therefore the interim injunction should be granted. R 26 • 8.0 Decision 8.1 I have considered the application of the Plaintiffs in the Affidavit in Support and the Skeleton Arguments as well as the Affidavit in Reply. I have also considered the 2 n d Defendants Affidavit in Opposition and the List of Authorities and Skeleton arguments relied upon. It is clear to me and I so find that there is a serious question to be tried regarding legal acquisition of the property by the 2 nd Defendant and therefore I accept the Plaintiffs claim that there is a clear right to relief for which an injunction should be granted. 8 .2 I therefore grant the injunction until determination of this matter. To that end I shall issue Orders for Directions in order that the matter proceeds to trial. Leave to appeal is granted. ~ ~ ) G. Milimo-Salasini HIGH COURT JUDG R 27