Elizabeth Mwikali & another v Shanzu Wayani Multi-Purpose Co-Operative Society Limited & another [2016] KEELC 10 (KLR)
The bottom line
#The High Court in Mombasa dismissed landowners' bid to stop a 2004 property transfer, ruling courts cannot undo acts that happened years earlier.
What this practically means
#Executive summary
#Key legal issues
#Prima facie case for injunction
The Applicants failed to establish a prima facie case because the acts they sought to restrain had already occurred and the transfer was effected pursuant to a valid court decree
The Applicants sought to stop the 1st Defendant from transferring the property and amending its register, but the 1st Defendant showed the transfer was effected in 2004 pursuant to a decree in RMCC No. 144 of 1996 and a certificate of ownership was issued to Philip Musau Kioko. The Applicants did not file a reply contesting this. Granting the orders would attempt to undo events of ten years earlier, which would not be proper.
Irreparable loss and adequacy of damages
The loss was quantifiable and therefore compensable in damages; irreparable loss was not established
The Applicants themselves valued the suit plot at Kshs 3,000,000 in the supporting affidavit, demonstrating that the loss could be estimated and compensated by damages. A party cannot simultaneously assert a monetary value for the property and contend that damages would be an insufficient remedy.
Balance of convenience
Not resolved in the Applicants' favour; the court found the application met none of the injunction principles
The court found the Applicants' application failed on the first principles, and since no prima facie case or irreparable loss was shown, the balance of convenience could not assist them. The 2nd Defendant had been in possession of the plot since 2004 and had not parted with possession.
Legal principles established
#- A plaintiff cannot claim the loss is irreparable while at the same time assigning a monetary value to the suit property, since damages can then be an adequate remedy
- Interlocutory injunctions cannot be granted in respect of acts that have already occurred; orders cannot be used to undo completed events
Court orders
#- 1.The Notice of Motion dated 27th May 2015 is dismissed with costs to the defendants
- Jurisdiction invoked
- Inherent jurisdiction of the High Court to grant interlocutory injunctions pending determination of the suit
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Elizabeth Mwikali & another v Shanzu Wayani Multi-Purpose Co-Operative Society Limited & another [2016] KEELC 10 (KLR)", Case Analysis (2016). Not stated in the judgment (Notice of Motion dated 27th May 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/10/eng@2016-02-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.