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ELCDismissedNot stated in judgment· [2017] KEELC 2176 (KLR)

Simon Gatungo Mbugua v Monross Hardware Limited [2017] KEELC 2176 (KLR)

Environment and Land Court
26 July 2017
LGL. Gacheru
1,274 words in judgment
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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, Simon Gatungo Mbugua, administrator of the Estate of Joseph Kamau Mbugua, brought a Notice of Motion dated 9th January 2017 under Order 40 Rules 1, 2, 3 and 9 of the Civil Procedure Rules and Sections 3A and 63 of the Civil Procedure Act, seeking a temporary injunction to restrain the Defendant from interfering with his quiet possession of, trespassing on, or constructing on LR.No.125/158 Ruiru Township. He claimed the property was co-owned by three deceased persons as tenants in common in equal shares and that the other co-owners' families sold it to the Defendant without his knowledge or involvement, rendering the sale a nullity. The Defendant opposed, asserting the Plaintiff consented via a Memorandum of Understanding dated 30th June 2016 and that each tenant in common could sell his distinct share; the Defendant had purchased two-thirds shares. Applying the Giella v Cassman Brown principles, the Court found the Plaintiff had signed the Memorandum of Understanding agreeing to the sale at Kshs.50,000,000/= and was therefore not candid in alleging ignorance of the sale; no prima facie case with probability of success was established. It further found the Plaintiff's one-third share quantifiable and damages an adequate remedy, and did not need to decide the balance of convenience. The application was dismissed entirely with costs in the cause, and parties were directed to comply with Order 11 within 45 days and take a date for pre-trial conference. Judgment delivered at Thika on 26th July 2017 by L. Gacheru, Judge.

Key legal issues

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01

Prima facie case with probability of success

Holding

The Plaintiff failed to establish a prima facie case because he had signed a Memorandum of Understanding agreeing to the sale of the suit property, contradicting his claim of ignorance of the sale

Reasoning

The Court observed the Memorandum of Understanding dated 30th June 2016 in which all parties, including the Plaintiff, agreed to sell the suit property for Kshs.50,000,000/= shared equally, plus a Sale Agreement of 9th December 2016. It found the Plaintiff was not candid in alleging the sale occurred without his knowledge or consent, and accordingly the first Giella condition failed.

p. 2
02

Adequacy of damages as remedy

Holding

Damages would adequately compensate the Plaintiff since the land could be quantified and valued

Reasoning

The Court applied the Wairimu Mureithi principle that no injunction should issue where damages at common law are an adequate remedy and the defendant can pay them. The suit property was valued under a Memorandum of Understanding at Kshs.50,000,000/= and the Plaintiff's share was a third of that value, making his loss quantifiable.

p. 3

Legal principles established

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  • No injunction should be granted where damages would be an adequate remedy
  • Each tenant in common is entitled to deal with his distinct undivided share

Court orders

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  1. 1.The Plaintiff's Notice of Motion dated 9th January 2017 is dismissed entirely with costs being in the cause
  2. 2.Parties to comply with Order 11 within 45 days and thereafter take a date for Pre-trial Conference before the Deputy Registrar

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1, 2, 3 and 9
  • Civil Procedure ActSections 3A and 63
  • Civil Procedure RulesOrder 11

Cases cited (3)

  • Giella vs Cassman Brown & Co. Ltd
    (1973) EA 358
  • Mrao Ltd vs First American Bank of Kenya Ltd & 2 Others
    (2003) KLR 125
  • Wairimu Mureithi vs City Council of Nairobi
    Civil Appeal No.5 of 1979 (1981) KLR 322
Jurisdiction invoked
Order 40 Rules 1, 2, 3 and 9 of the Civil Procedure Rules; Sections 3A and 63 of the Civil Procedure Act

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, "Simon Gatungo Mbugua v Monross Hardware Limited [2017] KEELC 2176 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2176/eng@2017-07-26

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