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ELCPartially AllowedNotice of Motion dated 29th June 2016 (interlocutory application in a pending suit)· [2018] KEELC 2753 (KLR)

Anne Njeri Ndwaru v Molyn Credit Limited & 2 others [2018] KEELC 2753 (KLR)

Environment and Land Court (Kajiado)
28 June 2018
3,552 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kajiado court froze all dealings on a disputed Ngong plot with an inhibition order, but declined a full injunction because both sides' ownership claims needed a full trial.

What this practically means

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Executive summary

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This is a ruling on the Plaintiff's Notice of Motion dated 29th June 2016, brought under Order 40 rule 1 and Order 51 rule 1 of the Civil Procedure Rules and sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, seeking an interim injunction and inhibition orders over land parcel NGONG/NGONG/48250. The Plaintiff, Anne Njeri Ndwaru, asserted that she deposited her title deed with the 1st Defendant, Molyn Credit Limited, as security for a Kshs. 3,000,000 loan repayable in monthly instalments of Kshs. 141,000, but the 1st Defendant fraudulently transferred the land to itself, procured her eviction through distress for rent proceedings, and accepted an offer to sell the property at Kshs. 6,300,000 against a valuation of Kshs. 18,000,000. The 1st Defendant countered that the transaction was an outright sale for Kshs. 4,000,000, evidenced by a sale agreement, executed transfer forms and land control board consent, and that the Plaintiff became a defaulting tenant thereafter. Applying the Giella v Cassman Brown principles, the court found the Plaintiff had established a prima facie case with a probability of success, noting the 1st Defendant's failure to explain how it obtained Land Control Board consent to transfer, and found her alleged injuries were not speculative. However, because both parties staked competing ownership claims and the 1st Defendant was in occupation, the court held those issues were best determined at full trial. The injunction was declined; instead, the court ordered an inhibition registered against the suit parcel by the Land Registrar Kajiado North, maintenance of the prevailing status quo, and that costs be in the cause.

Key legal issues

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01

Whether the Plaintiff established a prima facie case with a probability of success

Holding

The Plaintiff's claim over the suit land was not baseless; the 1st Defendant did not explain how it obtained Land Control Board consent to transfer, so a prima facie case with probability of success was established.

Reasoning

The Plaintiff was initially registered as proprietor of the suit land. The dispute over whether the transaction was a sale or a loan, and the 1st Defendant's failure to explain how it obtained Land Control Board consent, raised issues that could only be resolved at trial on oral evidence. Fraud allegations raise triable issues. The court therefore found the prima facie case threshold met.

p. 4
02

Whether the Plaintiff would suffer irreparable loss not compensable by damages

Holding

The Plaintiff's alleged injuries were found not to be speculative, as she had demonstrated the harm she had suffered and continued to suffer.

Reasoning

Applying Nguruman Ltd v Jan Bonde Nielsen, the court found that the plaintiff, having been evicted and facing disposal of the suit land, had demonstrated actual harm rather than unfounded fear. Both parties claim ownership of the land and the 1st Defendant had already evicted the Plaintiff.

p. 4
03

Balance of convenience and whether to grant the injunction

Holding

Although the substratum of the suit needed preservation, the competing ownership claims and occupation were best determined at full trial; the injunction was declined and an inhibition order with status quo substituted.

Reasoning

Both parties staked competing claims over the suit land, the sanctity of title was in dispute and the 1st Defendant was in occupation. Rather than grant an injunction, the court preserved the property by registering an inhibition order and maintaining the prevailing status quo pending trial.

p. 4

Legal principles established

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  • Where fraud is alleged, the party alleging it must be given an opportunity to prove it, and a substantial allegation of fraud raises a triable issue.
  • An applicant for a temporary injunction must establish irreparable injury that cannot adequately be compensated by damages.

Court orders

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  1. 1.An inhibition order registered by the Land Registrar Kajiado North against land parcel number NGONG/NGONG/48250 against any dealings, lease or charge pending the hearing and determination of the suit
  2. 2.Prevailing Status Quo to be maintained pending the outcome of the Suit
  3. 3.Costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 rule 1
  • Civil Procedure RulesOrder 51 rule 1
  • Civil Procedure Actsection 1A
  • Civil Procedure Actsection 1B
  • Civil Procedure Actsection 3A
  • Civil Procedure Actsection 63(e)
  • Land Registration Actsection 37

Cases cited (7)

  • Giella v Cassman Brown & Co. Ltd
    (1973) E.A. 358
  • UCB Vs Mukoome Agencies
    (1982) HCB 22
  • Nguruman Ltd. Vs. Jan Bonde Nielsen
    CA No. 77 of 2012
  • Hezekia Kipkorir Maritim & 10 others v Philip Kipkoech Tenai & 2 others
    (2016) eKLR
  • Jane Wambui Ngeru v Timothy Mwangi Ngeru
    (2015) eKLR
  • CFC Stanbic Bank Limited v Consumer Federation of Kenya (COFEK) being sued through its official namely Stephen Mutoro & 2 others
    (2014) eKLR
  • Wilson Kariuki T/A Wiskam Auctioneers & Molyn Credit Limited vs Anne Njeri Ndwaru
    CMCC MISC APP NO. 18 OF 2016
Jurisdiction invoked
Order 40 rule 1 and Order 51 rule 1 of the Civil Procedure Rules; sections 1A, 1B, 3A and 63(e) 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, "Anne Njeri Ndwaru v Molyn Credit Limited & 2 others [2018] KEELC 2753 (KLR)", Case Analysis (2018). Notice of Motion dated 29th June 2016 (interlocutory application in a pending suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2753/eng@2018-06-28

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