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ELCDismissedNot stated in judgment· [2016] KEELC 1269 (KLR)

Andrian Kaumi Mwarabu & another v Denis Mwenda [2016] KEELC 1269 (KLR)

High Court of Kenya
31 August 2016
PNP.M. Njoroge
1,576 words in judgment
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The bottom line

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The High Court in Meru refused to evict a man occupying a disputed plot, because the family claiming to be his landlords could not prove a tenancy existed.

What this practically means

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Executive summary

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The Plaintiffs, widow and son of the late Robert Mwarabu, moved the court by notice of motion dated 13th July 2016 under Order 40 Rules 1 and 2 and Order 51 Rule 1, seeking an injunction to restrain the Defendant from occupying Plot No. 57B Kianjai Market and an order that he deposit accrued rent of Kshs. 238,800 with the 1st Plaintiff. The Plaintiffs alleged the deceased had leased the plot to the Defendant at a monthly rent of Kshs. 13,800 and that the Defendant refused to pay rent or vacate after the deceased's death. The Defendant opposed, deponing that he was himself a son of the deceased who had been given the plot in 2009 to establish a matrimonial home and retail shop, that no tenancy agreement or rent receipts existed, and that the application was an abuse of process. At the hearing, Plaintiffs' counsel orally sought a DNA test to resolve the paternity claim. The court, applying Mbuthia v Jimba Credit Corporation, declined to make final findings of fact on disputed affidavits at the interlocutory stage, holding that the paternity question could only be determined after the hearing and that the DNA prayer was unpleaded. Finding no evidence of a landlord/tenant relationship beyond a letter of allotment, and that the Defendant's relative strength of propositions outweighed the Plaintiffs', the court denied the injunction and rent-deposit prayers, dismissed the application with costs to be in the cause, and directed both parties to comply with Order 11 within sequential 30-day periods.

Key legal issues

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01

Whether an interlocutory injunction should issue to restrain the Defendant from occupying the plot

Holding

Dismissed. No prima facie case of landlord/tenant relationship was demonstrated; the Defendant's propositions outweighed the Plaintiffs' and he was in possession.

Reasoning

Apart from a letter of allotment, no document concerning ownership or use of the plot was tendered, and no evidence demonstrated a tenant/landlord relationship. Guided by Mbuthia v Jimba Credit Corporation, the court declined to make final findings on disputed affidavits and instead weighed the relative strength of the parties' propositions, finding the balance tipped in favour of the Defendant, who was in possession.

p. 3
02

Whether the Defendant's paternity and the DNA test should be determined at the interlocutory stage

Holding

The paternity issue could not be determined at the interlocutory stage; the DNA prayer was not pleaded and was refused.

Reasoning

The court held that whether the Defendant was a son of the deceased could only be established after the hearing of the case. The DNA test prayer was raised orally without any party having mentioned it in the pleadings, making it a stranger to the application and an afterthought.

p. 3

Legal principles established

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  • In an application for an interlocutory injunction, the court must not decide issues of fact but weigh the relative strength of each side's propositions
  • The question of paternity, where disputed, cannot be determined at an interlocutory stage

Court orders

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  1. 1.The Plaintiffs' prayer for injunction and for the Defendant to deposit accrued rent with the 1st Plaintiff is denied
  2. 2.The application dated 13th July 2016 is dismissed with costs to be in the cause
  3. 3.The Plaintiffs are directed to fully comply with Order 11, CPR, within 30 days and the Defendant to do so within 30 days thereafter

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1 and 2
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 11

Cases cited (1)

  • Mbuthia Versus Jimba Credit Corporation
    [1988] KLR 1
Jurisdiction invoked
Order 40 Rules 1 and 2 and Order 51 Rule 1 of the Civil Procedure Rules (interlocutory injunctive relief)

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, "Andrian Kaumi Mwarabu & another v Denis Mwenda [2016] KEELC 1269 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1269/eng@2016-08-31

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