Anne Njeri Ndwaru v Molyn Credit Limited & 2 others [2018] KEELC 2753 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Plaintiff established a prima facie case with a probability of success
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.
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.
Whether the Plaintiff would suffer irreparable loss not compensable by damages
The Plaintiff's alleged injuries were found not to be speculative, as she had demonstrated the harm she had suffered and continued to suffer.
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.
Balance of convenience and whether to grant the injunction
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.
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.
Legal principles established
#- 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
#- 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.Prevailing Status Quo to be maintained pending the outcome of the Suit
- 3.Costs in the cause
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.