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ELCPartially AllowedNot stated in judgment· [2016] KEELC 355 (KLR)

Flora Wangui Kariuki v Kariuki Njoroge & 2 others [2016] KEELC 355 (KLR)

Environment and Land Court
28 July 2016
1,486 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court protected registered land buyers but refused a full injunction, ordering instead that everything on the disputed land stay exactly as it is until trial.

What this practically means

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Executive summary

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The 2nd and 3rd defendants filed two applications dated 6th August 2015 seeking to restrain the plaintiff/respondent from entering, wasting or damaging two land parcels, Title Numbers Loc.2/Mairi/1295 and Loc.2/Mairi/1294, pending the hearing of the main suit. The applicants, purchasers from the 1st defendant under sale agreements dated 30th September 2014 and now registered proprietors, alleged that the respondent, married to the 1st defendant, was interfering with their quiet possession. The respondent opposed the applications, contending that she and the 1st defendant occupy the original parcel Loc.2/Mairi/203, that it was never subdivided, that the applicants' titles were fraudulently procured without spousal consent, and that the applications were an abuse of process. By consent, both applications were disposed of by written pleadings. Applying the settled Giella v Cassman Brown principles and the Mrao definition of a prima facie case, the court found that the applicants had established a prima facie case, having produced documents of purchase and registration as proprietors. However, the respondent's claim that the land was matrimonial property failed because she did not demonstrate occupation of Parcel Loc.2/Mairi/203 as a matrimonial home or that it was the parcel subdivided into the suit parcels, the court applying the Court of Appeal's reasoning in Stella Mokeira Matara. Rather than the injunction as framed, the court granted an order of status quo pending the hearing and determination of the suit, with costs of both applications in the cause.

Key legal issues

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01

Whether the applicants established a prima facie case

Holding

The court held that the applicants established a prima facie case because they produced documents showing they purchased the parcels from the 1st defendant and were registered as proprietors of the suit properties.

Reasoning

Applying the Giella v Cassman Brown principles and the definition of a prima facie case in Mrao Ltd v First American Bank, the court examined the pleadings and documents. The applicants demonstrated registration as proprietors following sale agreements with the 1st defendant. The court stressed that it was not making final findings of fact, which remain for the main hearing, but the material presented showed an apparently infringed right as registered owners entitled to quiet possession.

p. 3
02

Whether the suit properties constitute the respondent's matrimonial home

Holding

The respondent failed to demonstrate that the family occupied Parcel No. Loc.2/Mairi/203 as their matrimonial home or that this parcel was subdivided into the suit parcels.

Reasoning

Guided by the Court of Appeal decision in Stella Mokeira Matara v Thaddues Mose Mangenya, which adopted the Land Act, 2012 definition of a matrimonial home as property occupied by spouses as their family home, the court held that the respondent's mere assertion of marriage and ownership was insufficient. She needed to prove existence of a home and occupation of the land said to have been subdivided; no photographs, valuation report or similar evidence was adduced.

p. 3

Legal principles established

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  • The conditions for granting an interlocutory injunction are a prima facie case with probability of success, irreparable injury not compensable by damages, and, if in doubt, the balance of convenience
  • A prima facie case in civil matters is one showing an apparently infringed right calling for rebuttal, and is higher than an arguable case
  • A party alleging that land is a matrimonial home must prove occupation of the property as the family home

Court orders

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  1. 1.An order of status quo be and is hereby maintained in respect of the suit properties (Title Numbers Loc.2/Mairi/1294 and Loc.2/Mairi/1295) pending the hearing and determination of the suit
  2. 2.Costs of both applications shall be in the cause

Authorities

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Legislation

  • Land ActDefinition of matrimonial home (as referenced in Stella Mokeira Matara)

Cases cited (4)

  • Giella v Cassman Brown and Co. Ltd & Another
    [1973] E.A. 358
  • Mrao Ltd v First American Bank Kenya Ltd & 2 Others
    (2003) KLR 125
  • American Cyanamid Co. v Ethicon Limited
    (1975) 1 ALL ER 504
  • Stella Mokeira Matara v Thaddues Mose Mangenya & another
    [2016] eKLR
Jurisdiction invoked
Inherent civil jurisdiction to grant interlocutory injunctive relief pending hearing of the main suit

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, "Flora Wangui Kariuki v Kariuki Njoroge & 2 others [2016] KEELC 355 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/355/eng@2016-07-28

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