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ELCAllowed· [2015] KEELC 434 (KLR)

Nancy Wanjiku Maina v Jane Wairimu Mwangi & 3 others [2015] KEELC 434 (KLR)

High Court of Kenya
11 May 2015
LGL. Gacheru
1,041 words in judgment
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The bottom line

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A Kenyan court stopped the eviction of a family living on disputed Githurai land, freezing all dealings with the property until the real ownership question is decided at trial.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 4th February 2014 brought by the plaintiff under Order 40 Rules 1, 2 and 3(3) of the Civil Procedure Rules and sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, seeking a temporary injunction restraining the respondents from evicting her and her siblings from, trespassing on, or dealing with property known as Nairobi/Block/119/603 at Githurai Estate pending determination of the suit. The plaintiff averred that her mother, Njoki Maina, died intestate in 1979 and was the shareholder and allottee of the suit property; that her brother James Mwangi and the 1st defendant fraudulently transferred it without confirmed letters of administration; and that despite a caveat and warning notices, the caveat was removed and the 2nd and 3rd respondents, purported purchasers, threatened eviction. The 2nd and 3rd respondents explained their February 2010 purchase from James Mwangi Maina for Ksh 2,000,000 and completion with his widow after his death, asserting due process in removing the caution. The 1st respondent confirmed the sale and the plaintiffs' occupation. Applying the Giella v Cassman Brown principles, L. Gacheru J found the plaintiffs in occupation, noted the respondents' title could only be defeated by proof of fraud or trust, and resolved the application on the balance of convenience. The court ordered that the plaintiff and her sisters not be evicted and that the 1st, 2nd and 3rd respondents not deal with the property pending the suit, with costs in the cause.

Key legal issues

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01

Entitlement to interlocutory injunction over land occupied by the plaintiff but registered in the respondents' names

Holding

Occupation of the suit property by the plaintiff and her sisters tilts the balance of convenience towards preserving the property pending trial; the registered owners' rights can only be defeated by proof of fraud or trust.

Reasoning

The court applied the Giella v Cassman Brown test. It found the plaintiff in occupation, a fact confirmed by the 1st Respondent, while the property was registered in the 2nd and 3rd Respondents' names following transfer by the 1st Respondent. Because the plaintiff was in occupation and faced eviction, the court declined to decide the merits at the interlocutory stage and instead preserved the position by restraining eviction and dealing with the property pending the hearing of the suit.

p. 2

Legal principles established

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  • The conditions for granting an interlocutory injunction are those laid down in Giella v Cassman Brown: prima facie case with probability of success, irreparable injury not compensable by damages, and balance of convenience if in doubt.

Court orders

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  1. 1.The plaintiff and her sisters should not move nor be evicted from the suit property pending the hearing and determination of the suit
  2. 2.The 1st, 2nd and 3rd Respondents should not deal with the suit property in any way pending the hearing and determination of the suit
  3. 3.Costs shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1, 2 and 3(3)
  • Civil Procedure ActSections 1A, 1B, 3A and 63(e)

Cases cited (1)

  • Giella –vs- Cassman Brown Limited
    [1973] EA 338
Jurisdiction invoked
Order 40 Rules 1, 2 and 3(3) of the Civil Procedure Rules; sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act

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, "Nancy Wanjiku Maina v Jane Wairimu Mwangi & 3 others [2015] KEELC 434 (KLR)", Case Analysis (2015). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/434/eng@2015-05-11

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