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ELCDismissedNot stated in the judgment· [2014] KEELC 286 (KLR)

Monika Kioko v Renson Munga [2014] KEELC 286 (KLR)

High Court of Kenya
31 July 2014
OAO. A. Angote
952 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court in Malindi refused to stop a woman from using the home she has lived in since 2012 because the applicant lacked evidence of joint ownership.

What this practically means

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Executive summary

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This was a ruling on the Defendant's application dated 22nd August, 2013, brought under Order 40 of the Civil Procedure Rules, seeking temporary injunctive orders restraining the Plaintiff from constructing on, disposing of, or excluding the Defendant from a parcel described as sub-division No.334/III/MN at Maweni, Mtwapa, including a three-bedroomed permanent house on a 50ft by 80ft portion. The Defendant deponed that he jointly purchased three plots with the Plaintiff for Kshs.350,000 in February 2008 and had earlier bought a portion for Kshs.150,000 in November 2006, and that the Plaintiff had denied him access and was developing the plot with intent to dispose of it. The Plaintiff responded that at the time of purchase the seller was a mere squatter, that Plot 334/III/MN had been surrendered to the Government in 1970 and fell within resultant plot MN/III/524, and that two plots were confiscated by the Mtwapa Maweni Self Help Group, leaving her only the plot with her three-bedroomed house. The Plaintiff's claim in the suit is for a declaration of sole ownership and a permanent injunction. The Plaintiff filed no submissions. The court held that the Defendant failed to demonstrate, prima facie, that he jointly constructed the house, that he would suffer irreparable harm, and that the balance of convenience favoured him, since the Plaintiff had occupied the home since 2011/12. The application was dismissed with costs.

Key legal issues

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01

Whether the Defendant established a prima facie case and irreparable harm to warrant a temporary injunction

Holding

The application was dismissed; the Defendant failed to demonstrate a prima facie case or irreparable harm, and the balance of convenience favoured the Plaintiff who has resided in the house since 2011/12

Reasoning

The Defendant admitted in his defence and counter-claim that he and the Plaintiff jointly purchased only one plot from Karisa Kazungu Chengo, and that they were prevented from taking possession by local inhabitants. He produced no evidence that he jointly constructed the three-bedroomed house occupied by the Plaintiff, nor that she was building on the other two plots. The Plaintiff had stayed in the home since 2011/12, so no irreparable harm would follow refusal of the injunction.

p. 2

Legal principles established

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  • A party applying for a temporary injunction must show a prima facie case, that irreparable harm would be suffered absent the injunction, and that the balance of convenience favours granting it

Court orders

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  1. 1.Dismissal of the Defendant's application dated 22nd August, 2013
  2. 2.Costs of the application to the Plaintiff

Authorities

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Legislation

  • Civil Procedure RulesOrder 40
Jurisdiction invoked
Order 40 of the Civil Procedure Rules (injunctions)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Monika Kioko v Renson Munga [2014] KEELC 286 (KLR)", Case Analysis (2014). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/286/eng@2014-07-31

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.