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ELCDismissedNot stated in the judgment (Notices of Motion dated 27th November 2012 and 11th December 2012)· [2015] KEELC 746 (KLR)

Wachira Bernard & another v Kihara Kangethe & another [2015] KEELC 746 (KLR)

High Court of Kenya (court not expressly named in the judgment; presided over by a Judge)
10 April 2015
MGMary M. Gitumbi
1,280 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court refused an injunction because the plaintiffs couldn't prove, with succession documents, that they had any legal right to the property in dispute.

What this practically means

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Executive summary

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Two Notices of Motion dated 27th November 2012 and 11th December 2012 came before Mary M. Gitumbi J for determination. The Plaintiffs, claiming to be joint administrators of the estate of the late Macharia wa Gacharia, who was allegedly allocated Shop No. 5 Shauri Moyo ex-pangani by the 2nd Defendant in the late 1930s, sought a temporary injunction restraining the Defendants from evicting them or dealing with their leasehold interest, and an order compelling the 1st Defendant (their alleged subtenant) to pay rent arrears from August 2012, failing which distress be levied. The Plaintiffs alleged the 1st Defendant, in collusion with the 2nd Defendant, was paying rent directly to the 2nd Defendant contrary to an order in HCCC No. 422 of 1980 preserving head tenancies and sub-tenancies. The 1st Defendant denied any tenancy with the Plaintiffs, asserting his deceased mother ran the shop from the early 1970s paying rent to the 2nd Defendant, and relied on a Business Premises Tribunal decision (BPRT Case No. 995 of 2009). The 2nd Defendant filed Grounds of Opposition contending the Plaintiffs were strangers to it and that the HCCC No. 422 of 1980 orders did not apply. Applying Giella v Cassman Brown and Mrao v First American Bank, the court found the Plaintiffs had produced no letters of administration or confirmation of grant establishing their appointment as administrators or their beneficial interest in the leasehold, so no prima facie case was made out. Both applications were dismissed with no order as to costs on 10th April 2015.

Key legal issues

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01

Whether the Plaintiffs established a prima facie case with a probability of success

Holding

They did not; without letters of administration and confirmation of grant it was not even clear they had any right to file the suit

Reasoning

The Plaintiffs asserted entitlement to rent as joint administrators of the estate of Macharia wa Gacharia, allocated the suit premises by lease dated 1st January 1972. However, they produced no letters of administration verifying their appointment as administrators and no confirmation of grant showing they were beneficiaries of the leasehold interest. The court held this critical preliminary point had to be cleared before any orders could issue.

p. 3

Legal principles established

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  • Conditions for grant of an interlocutory injunction: prima facie case with probability of success, irreparable injury not compensable by damages, and balance of convenience
  • Definition of a prima facie case in civil applications

Court orders

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  1. 1.The Plaintiffs' two Notices of Motion dated 27th November 2012 and 11th December 2012 are dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Distress for Rent ActNot specified (referenced in Grounds of Opposition)

Cases cited (2)

  • GIELLA versus CASSMAN BROWN
    (1973) EA 358
  • MRAO versus FIRST AMERICAN BANK OF KENYA LIMITED & 2 OTHERS
    (2003) KLR 125
Jurisdiction invoked
Not expressly invoked; first-instance interlocutory application before a Judge of the High Court

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, "Wachira Bernard & another v Kihara Kangethe & another [2015] KEELC 746 (KLR)", Case Analysis (2015). Not stated in the judgment (Notices of Motion dated 27th November 2012 and 11th December 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/746/eng@2015-04-10

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