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ELCDismissedNotice of Motion dated 9th June 2016 (suit number not stated in judgment)· [2019] KEELC 3472 (KLR)

David Korogo Wangunyu & 3 others (suing as officials of Komarock Youth Juakali Artisan Association) v John Mwangi Macharia & 4 others [2019] KEELC 3472 (KLR)

Environment and Land Court
25 April 2019
LKL. Komingoi
813 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to block land dealings because the real fight was over who leads the association, not who owns the property.

What this practically means

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Executive summary

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This is a ruling on the plaintiffs' Notice of Motion dated 9th June 2016 seeking a temporary injunction under Order 40 rules 1 and 2 of the Civil Procedure Rules and Sections 1A, 1B, 3A and 63(c) and (e) of the Civil Procedure Act. The plaintiffs, claiming to be the lawful officials of Komarock Youth Jua Kali Artisans Association, sought to restrain the defendants from trespassing on, occupying, developing, alienating or otherwise interfering with CR11344/R Komarock pending the hearing of the suit, alleging that the defendants had purported to call a special general meeting to verify, reallocate and subdivide plots belonging to 191 genuine members. The application was supported by affidavits of Peter Njuguna Wangunyu and opposed by a replying affidavit of John Mwangi Macharia, who asserted that the defendants were the current officials of the association. The court directed that the motion be canvassed by written submissions; only the plaintiffs filed submissions. Framing two issues - whether the threshold for a temporary injunction was met, and costs - the judge applied the Giella v Cassman Brown principles and the Mrao definition of a prima facie case, and adopted Bosire J's holding in Kenleb Cons Ltd that an applicant must disclose all relevant facts and demonstrate a legal or equitable right requiring protection. The court found the real dispute was a leadership wrangle between two rival groups claiming to be bona fide officials of the association, not a dispute over ownership of the suit property. Concluding the applicants did not merit injunctive protection, the court dismissed the application, ordered that the costs of the application abide the outcome of the main suit, and directed expedition of the hearing of the main suit.

Key legal issues

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01

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

Holding

No. The dispute concerned rival claims to the association's leadership, not ownership of the suit property, so no protectable right over the property was demonstrated.

Reasoning

The court applied the Giella v Cassman Brown principles and the Mrao definition of a prima facie case. On the affidavits, both groups claimed to be bona fide officials of the association; the wrangle was internal and did not concern ownership of CR11344/R Komarock. Following Kenleb Cons Ltd, the applicants failed to show a legal or equitable right requiring injunctive protection, and the application was dismissed with costs to abide the main suit.

p. 2

Legal principles established

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  • An applicant for an injunction must make full and frank disclosure of all relevant facts and must show a legal or equitable right requiring protection by injunction

Court orders

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  1. 1.The notice of motion dated 9th June 2016 is dismissed
  2. 2.The costs of the application do abide the outcome of the main suit

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 rules 1 and 2
  • Civil Procedure ActSections 1A, 1B, 3A and 63(c) and (e)

Cases cited (3)

  • Giella vs Cassman Brown and Company Limited
    [1973] EA 358
  • Mrao Limited vs First American Bank of Kenya Limited and 2 others
    [2003] KLR 125
  • Kenleb Cons Ltd vs New Gatitu Services Station Ltd & Another
    [1990] KLR 557
Jurisdiction invoked
Order 40 rules 1 and 2 of the Civil Procedure Rules; Sections 1A, 1B, 3A and 63(c) and (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, "David Korogo Wangunyu & 3 others (suing as officials of Komarock Youth Juakali Artisan Association) v John Mwangi Macharia & 4 others [2019] KEELC 3472 (KLR)", Case Analysis (2019). Notice of Motion dated 9th June 2016 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3472/eng@2019-04-25

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