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ELCDismissedNot stated in the excerpt (Nairobi High Court; related to dismissed Nairobi HCC No. 44 of 2015)· [2017] KEELC 1681 (KLR)

Jane Wambui Macharia v Wais Capital Limited & 7 others [2017] KEELC 1681 (KLR)

High Court of Kenya
28 September 2017
KBK. BOR
858 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiff moved the court by application dated 15/2/2017 seeking eleven orders, of which she pursued prayers 3, 5, 7 and 9 - injunctive relief restraining the Chief Land Registrar from registering any instruments over Flat B on L.R. No. 1870/VI/158, Westlands Nairobi (I.R. 104473), restraining the Defendants from dealing with or claiming any interest in the Suit Property, and directing that rents collected be deposited in court and in a joint account with the 6th Defendant. She denied executing the charge in favour of the 1st Defendant, claiming she signed blank documents, that the charge was uncertain and based on past consideration, and that she was never served with statutory notices under sections 90 and 96(2) of the Land Act. The Defendants opposed, contending the application was res judicata, the same challenge to the sale having been dismissed by Gikonyo J in Nairobi HCC No. 44 of 2015. The court framed the classic injunction questions of prima facie case, irreparable injury and balance of convenience. It found no prima facie case: the Plaintiff's own affidavit was contradictory, her advocates admitted the loan was secured by a charge, and she offered Kshs 7 million from sale proceeds. The court agreed the application was res judicata, held damages were an adequate remedy, and dismissed the application with costs to the 1st, 3rd and 6th Defendants.

Key legal issues

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01

Prima facie case with probability of success

Holding

The Plaintiff failed to establish one; documents showed she acknowledged receipt of monies and offered to settle

Reasoning

The court examined the affidavits and annexures. The Plaintiff's own affidavit was contradictory, denying and conceding the advance of monies. Her advocates' letters admitted the loan was secured by a charge and offered Kshs 7 million from sale proceeds, undermining her claim that no enforceable charge existed.

p. 2
02

Res judicata

Holding

The application for injunction was res judicata, the same challenge to the sale having been dismissed in HCC No. 44 of 2015

Reasoning

The Defendants argued, and the court accepted, that this was the second time the Plaintiff was challenging the sale of the charged property, having previously filed Nairobi HCC No. 44 of 2015 which was dismissed by Gikonyo J on 29/7/2015.

p. 2
03

Adequacy of damages

Holding

Any loss the Plaintiff might suffer is compensable by quantifiable damages

Reasoning

The court held that the Plaintiff did not demonstrate the 1st Defendant would be unable to meet an award of damages, and that the property had already changed hands to the 6th Defendant, so disputed facts should be resolved at trial rather than on an interlocutory application.

p. 2

Legal principles established

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  • A plaintiff who has previously litigated the same issue over the sale of charged property cannot relitigate it; the subsequent application is barred by res judicata
  • Where loss is quantifiable in damages, an injunction will not issue

Court orders

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  1. 1.The application dated 15/2/2017 is dismissed
  2. 2.Costs of the application awarded to the 1st, 3rd and 6th Defendants

Authorities

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Legislation

  • Land Actsection 90
  • Land Actsection 96(2)
Jurisdiction invoked
Original civil jurisdiction of the High Court (injunction application in a pending suit)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Jane Wambui Macharia v Wais Capital Limited & 7 others [2017] KEELC 1681 (KLR)", Case Analysis (2017). Not stated in the excerpt (Nairobi High Court; related to dismissed Nairobi HCC No. 44 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1681/eng@2017-09-28

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