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ELCDismissedNot stated in the judgment (application dated 18th November 2017)· [2018] KEELC 4703 (KLR)

Margaret Onyach Maloba v Elizabeth Butege Mimo [2018] KEELC 4703 (KLR)

High Court of Kenya
25 January 2018
NMN. A. Matheka
1,789 words in judgment
View original judgmentRead on Kenya Law Watch case
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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 applicant, Margaret Onyach Maloba, moved the court by notice of motion dated 18th November 2017 under Order 40 rules 1, 2 and 3 of the Civil Procedure Rules and section 3A of the Civil Procedure Act, seeking interim injunctions restraining the respondent, her co-wife and co-registered proprietor of land parcel N/WANGA/LUNG'ANYIRO/806, from constructing a structure in the applicant's compound pending inter partes hearing and pending sharing of the estate of their late husband, Fredrick Maloba, in Nairobi Succession Cause No. 166 of 2000. The applicant asserted that she had an established homestead on the land before her husband's death, that the respondent's home site was yet to be allocated, and that the respondent erected a permanent house adjacent to hers on or about 8th September 2017 without consent. The respondent countered that the compound was the family home where both wives lived with the deceased, where she had maintained a house for about 20 years, that her new house was already built to roof level and plastered, and that she had not trespassed, both parties being co-registered owners with an uncompleted subdivision. Applying the Giella v Cassman Brown principles as explained in Mrao Ltd, N.A. Matheka J found the applicant had failed to demonstrate a prima facie case with probability of success or irreparable injury not compensable by damages, noting that the orders sought were final in nature and could only be determined at full hearing. The application was dismissed with costs to the respondent.

Key legal issues

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01

Whether the applicant was entitled to an interlocutory injunction restraining the respondent from constructing on the suit land

Holding

The application was dismissed because the applicant failed to establish a prima facie case with probability of success and failed to show irreparable injury not compensable by damages.

Reasoning

The court applied the Giella v Cassman Brown principles as elaborated in Mrao Ltd. It found as undisputed that both parties were co-wives and co-registered proprietors of the parcel. The respondent had lived on and used the compound for about 20 years, her new house was already built to roof level and plastered, and the applicant did not show her exclusive right over the compound or that damages would be inadequate. The orders sought were final in character and could only be determined at full trial.

p. 3

Legal principles established

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  • The conditions for granting an interlocutory injunction are: prima facie case with probability of success; irreparable injury not adequately compensable by damages; and, if in doubt, balance of convenience.
  • A prima facie case is more than an arguable case; the evidence must show an infringement of a right and the probability of the applicant's case upon trial.

Court orders

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  1. 1.The notice of motion dated 18th November 2017 is dismissed with costs to the respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 rules 1, 2 and 3
  • Civil Procedure Actsection 3A

Cases cited (2)

  • Giella vs. Cassman Brown
    (1973) EA 358
  • Mrao Ltd vs. First American Bank of Kenya Ltd & 2 others
    {2003}
Jurisdiction invoked
Order 40 rules 1, 2 and 3 of the Civil Procedure Rules and 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, "Margaret Onyach Maloba v Elizabeth Butege Mimo [2018] KEELC 4703 (KLR)", Case Analysis (2018). Not stated in the judgment (application dated 18th November 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4703/eng@2018-01-25

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