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ELCDismissedNot stated in the judgment (interlocutory Notice of Motion dated 13/11/2017 in the Plaintiffs' suit)· [2018] KEELC 4197 (KLR)

Esther Wanjiru Mwangi & 2 others (suing in their capacity as officials of Apostolic Congregation Ministries) v Zacharia Kamau Mwangi [2018] KEELC 4197 (KLR)

Environment and Land Court of Kenya
8 March 2018
1,361 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Murang'a refused to freeze the land because the buyers' losses were already calculated in money and could be repaid through damages.

What this practically means

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Executive summary

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The three Plaintiffs sued the Defendant for fraudulently selling to them portions of LR No Loc 2/Kangari/4373 and 4374, which the High Court in Nyeri in P&A Appeal No. 1 of 2006 ordered cancelled and reverted to the original parcel, claiming Kshs 3.4 Million as purchase price plus mesne profits, or alternatively compensation by way of equal subdivision of LR No Loc 2/Kangari/4252. By a Notice of Motion dated 13/11/2017 they sought a temporary injunction restraining the Defendant from selling, transferring, disposing of or interfering with LR No Loc 2/Kangari/4252, asserting he was about to dispose of it to a third party. The Defendant opposed, contending the titles transferred were genuine and that LR No Loc 2/Kangari/4252 is registered in his name only as trustee for Samuel Mwangi Kamau and Martha Waitherero Kamau. Applying Giella v Cassman Brown and Mrao v First American Bank, the court held no prima facie case was established: the green card showed the Defendant registered as trustee, the Plaintiffs adduced no material proving fraudulent registration of the trust, the beneficiaries were neither parties to the contract nor to the suit, and the property sought to be injuncted was not the subject of the sale contract. The Plaintiffs having quantified their loss at Kshs 3.4 Million, their loss was adequately compensable in damages, and the balance of convenience favoured refusing the injunction. The application was dismissed with costs to the Defendant. The court also deprecated the Plaintiffs' late filing of submissions without leave, though it considered them as no prejudice was occasioned.

Key legal issues

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01

Whether the Plaintiffs established a prima facie case against the Defendant in respect of LR No Loc 2/Kangari/4252

Holding

No prima facie case was established; the property is registered in the Defendant's name as trustee for Samuel Mwangi Kamau and Martha Waitherero Kamau, who are not parties to the suit or the sale contract

Reasoning

Applying Giella v Cassman Brown, the court examined the green card showing the Defendant became registered owner as trustee via Succession Cause No 59/2003 at Kigumo. The Plaintiffs alleged the trust was fraudulently registered to disguise true ownership but adduced no supporting material. Further, a trustee is merely a paper owner; the beneficiaries are strangers to the contract and suit and cannot be condemned unheard; and the contract concerned parcels 4373 and 4374, not 4252, so the injunction sought is ultra vires the contract.

p. 2
02

Whether the Plaintiffs would suffer irreparable injury not compensable by damages

Holding

No; the Plaintiffs quantified their loss at Kshs 3.4 Million, demonstrating their loss is adequately compensable by an award of damages

Reasoning

The second Giella limb failed because the Plaintiffs themselves pleaded and quantified their loss in monetary terms, which defeats any claim of irreparable injury incapable of compensation in damages. The balance of convenience also tilted against the injunction, particularly given that the property is held in trust for beneficiaries who are not before the court.

p. 2

Legal principles established

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  • The settled conditions for granting an interlocutory injunction are a prima facie case with probability of success, irreparable injury not adequately compensable by damages, and, if in doubt, the balance of convenience
  • A trustee is merely a paper owner on behalf of another; where registered title is held in trust for non-parties, an injunction over that property cannot issue against the trustee without the beneficiaries being before the court

Court orders

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  1. 1.The Plaintiffs' Notice of Motion dated 13/11/2017 seeking a temporary injunction over LR No Loc 2/Kangari/4252 is dismissed
  2. 2.Costs of the application awarded to the Respondent/Defendant

Authorities

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Cases cited (2)

  • Giella Vs. Cassman Brown
    (1973) EA 358
  • Mrao Vs First American Bank of Kenya Limited & 2 Others
    C.A. No. 39 OF 2002 (2003 eK.L.R)
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the interlocutory application in a land dispute (statutory provision not expressly cited in the judgment)

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, "Esther Wanjiru Mwangi & 2 others (suing in their capacity as officials of Apostolic Congregation Ministries) v Zacharia Kamau Mwangi [2018] KEELC 4197 (KLR)", Case Analysis (2018). Not stated in the judgment (interlocutory Notice of Motion dated 13/11/2017 in the Plaintiffs' suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4197/eng@2018-03-08

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