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ELCDismissedNot stated in judgment (notice of motion dated 25th May 2015)· [2019] KEELC 387 (KLR)

Mary Wanjiku Karanja v Michael Ndichu Wangaruro t/a Ndichu & Associates & 4 others [2019] KEELC 387 (KLR)

High Court of Kenya
5 December 2019
LKL. Komingoi
770 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court dismissed a landowner's bid to block development on disputed land, ruling that unproven forgery claims don't justify an injunction.

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 25th May 2015, brought under Section 3A of the Civil Procedure Act and Orders 40 and 51 of the Civil Procedure Rules, seeking a temporary injunction restraining the defendants from trespassing, encroaching, developing or dealing with LR No. 9363/65, IR No. 14628/73 Nairobi, plus a compliance order against the OCPD Kayole and costs. The application was supported by the affidavits of the plaintiff, Mary Wanjiku Karanja, administrator of the estate of her late husband Karanja Kago, who alleged that the 1st defendant was trespassing and encroaching on the suit property under agreements she contended were forged, asserting that the deceased never sold or bequeathed any portion to him. The 1st defendant swore he was given three acres under three agreements with the deceased as payment for subdivision survey work, planning permissions and processing of title deeds; the 2nd defendant also opposed. Despite directions for written submissions, none were filed. Applying Giella v Cassman Brown and the Mrao definition of a prima facie case, and the Kenleb Cons requirement of full disclosure and demonstration of a legal or equitable right, Komingoi J held that the forgery allegations required proof at trial, that the applicant failed to establish a prima facie case with probability of success, and that any loss was compensable by damages. The application was dismissed with costs abiding the outcome of the main suit.

Key legal issues

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01

Whether the applicant met the Giella v Cassman Brown threshold for a temporary injunction

Holding

The application failed the test: no prima facie case with probability of success and no irreparable loss shown

Reasoning

The court applied the Giella v Cassman Brown principles and the Mrao definition of a prima facie case. The applicant, administrator of the estate of Karanja Kago, alleged trespass based on forgery of agreements by which the deceased allegedly gave the 1st defendant three acres for subdivision, survey and title processing services. The court held the forgery allegations required proof at trial and that damages could compensate any loss, so no basis existed for an injunction.

p. 2
02

Whether the applicant made a full and frank disclosure

Holding

The court was not satisfied the applicant deserved the protection of an injunction, applying the Kenleb Cons duty of frank and full disclosure

Reasoning

Citing Bosire J in Kenleb Cons Ltd v New Gatitu Services Station Ltd, the court reiterated that an applicant must make a frank and full disclosure of all relevant facts and demonstrate a legal or equitable right requiring protection. The applicant failed to demonstrate such a right on the material before the court.

p. 2

Legal principles established

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  • An applicant for injunction must make full and frank disclosure of all relevant facts and show a legal or equitable right requiring protection by injunction
  • Allegations of forgery are matters to be proved at the hearing and cannot found an interlocutory injunction

Court orders

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  1. 1.The notice of motion dated 25th May 2015 is dismissed for lack of merit
  2. 2.The costs do abide the outcome of the main suit

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 40 rule 1
  • Civil Procedure RulesOrder 51 rule 1

Cases cited (3)

  • Giella vs Cassman Brown & Co. Ltd
    [1973] EA 358
  • Mrao Limited vs First American Bank of Kenya Ltd & 2 Others
    [2003] KLR 125
  • Kenleb Cons Ltd vs New Gatitu Services Station Ltd & Another
    [1990] KLR 557
Jurisdiction invoked
Section 3A of the Civil Procedure Act, Order 40 rule 1 and Order 51 rule 1 of the Civil Procedure Rules

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, "Mary Wanjiku Karanja v Michael Ndichu Wangaruro t/a Ndichu & Associates & 4 others [2019] KEELC 387 (KLR)", Case Analysis (2019). Not stated in judgment (notice of motion dated 25th May 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/387/eng@2019-12-05

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