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ELCDismissedNotice of Motion dated 28th September 2017 (ruling delivered at Thika)· [2018] KEELC 1195 (KLR)

Nyambura N. Kariuki v Joseph Njakai Kariuki [2018] KEELC 1195 (KLR)

Environment and Land Court / High Court at Thika
19 October 2018
LGL. Gacheru
2,095 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 refused to stop a husband from dealing with jointly-owned Ruiru land because the disputed plots were already sold and a title restriction offered enough protection.

What this practically means

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Executive summary

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The Plaintiff, Nyambura N. Kariuki, moved the court by Notice of Motion dated 28th September 2017 seeking a temporary injunction restraining the Defendant, her husband, from alienating, wasting, selling or interfering with land reference Ruiru East Block 1 (Githunguri)/1387 pending determination of the suit, together with an injunction against interference with her quiet use of the land and costs. The application was anchored on Order 40 Rule 1 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act. She averred the parties jointly purchased and are jointly registered owners of the parcel, that it is her matrimonial home, and that the Defendant had subdivided and purportedly sold plots to third parties who had begun taking possession. The Defendant admitted the marriage and joint registration but contended he solely acquired the land and registered it jointly out of love; that the marriage had irretrievably broken down; that he had subdivided the land into ten plots, each party taking five; and that the two plots sold were his. Applying the Giella v Cassman Brown principles, the court found the Applicant had not established a prima facie case: the sale of two plots had already occurred and cannot be enjoined; the Applicant had built on one of her plots and thus had a home; and the Defendant owns other properties, so damages would be an adequate remedy. The balance of convenience favoured leaving in place the restriction the Plaintiff had registered on the title on 22nd May 2017. The court dismissed the application entirely with costs to the Respondent and directed the parties to prepare the main suit for hearing expeditiously.

Key legal issues

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01

Prima facie case

Holding

The Applicant failed to establish a prima facie case with probability of success

Reasoning

The property is jointly registered; the Defendant had already sold two subdivided plots, an event that cannot be enjoined; the Plaintiff had registered a restriction protecting the title; and in any event, on divorce the property would be shared equally with the sold plots taken into account.

p. 3
02

Irreparable loss

Holding

No irreparable loss was demonstrated since the Plaintiff has her own plot and the Defendant owns other properties

Reasoning

The Applicant had built a house on one of the subdivided plots not sold, giving her a place to live, and the Defendant had other properties, including ancestral land at Othaya, in which she as a wife has a stake; damages are therefore an adequate remedy.

p. 3
03

Balance of convenience

Holding

The balance of convenience favours leaving the existing restriction on the title in place rather than issuing an injunction

Reasoning

The Plaintiff had registered a restriction on 22nd May 2017 against dealings without her consent, which remains in force; that restriction is sufficient protection and no further injunctive orders against the title are necessary.

p. 3
04

Nature of matrimonial home claim

Holding

The suit property could not be treated as a matrimonial home since the parties live in separate houses

Reasoning

Both parties admitted living on the property but in separate houses, so the court held the property cannot be called a matrimonial home; this was relevant to the claim of potential homelessness.

p. 2

Legal principles established

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  • Injunctions are preventive and cannot issue against an event that has already occurred
  • No injunction should be granted where damages would be an adequate remedy and the defendant can pay them

Court orders

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  1. 1.The Notice of Motion dated 28th September 2017 is dismissed entirely with costs to the Respondent
  2. 2.The parties to prepare the main suit for hearing expeditiously so that the contested issues can be resolved at once

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 1
  • Civil Procedure ActSection 3A

Cases cited (4)

  • Edwin Kamau Muniu v Barclays Bank of Kenya Ltd
    Nairobi HCCC No. 1118 of 2002
  • Giella v Cassman Brown & Co. Ltd
    1973 E.A 358
  • Jane Kemunto Mayaka v Municipal Council of Nakuru & Others
    HCCC No. 124 of 2005
  • Wairimu Mureithi v City Council of Nairobi
    Civil Appeal No. 5 of 1979 (1981) KLR 322
Jurisdiction invoked
Order 40 Rule 1 of the Civil Procedure Rules; Section 3A 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, "Nyambura N. Kariuki v Joseph Njakai Kariuki [2018] KEELC 1195 (KLR)", Case Analysis (2018). Notice of Motion dated 28th September 2017 (ruling delivered at Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1195/eng@2018-10-19

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