Fiona J. Wangari v Benson Gachuhi Maina & 4 others [2020] KEELC 1628 (KLR)
The bottom line
#A Kenyan court protected a Ruai plot buyer with an injunction and moved her case to a faster court, warning buyers to do due diligence.
What this practically means
#Executive summary
#Key legal issues
#Sub judice and stay of proceedings under Section 6 of the Civil Procedure Act
Both suits concern the same subject matter and substantially the same parties, engaging Section 6; rather than staying the magistrate's suit, the court transferred this suit for consolidation to achieve expedition
The court found that both suits relate to the same plot on the ground and that the plaintiff's suit was filed before CMCC 10574 of 2018. It would have been proper to stay the latter suit, but considering the full diary of the ELC (earliest hearing date 2021) and the overriding objective, and since the magistrate's court has jurisdiction, the court opted to transfer this suit for consolidation with CMCC 10574 of 2018 under Section 18 of the Civil Procedure Act.
Temporary injunction - prima facie case
The plaintiff demonstrated ownership of Plots V13104 and V13105 through non-member certificates and possession/rehabilitation of the land, unchallenged by the defendants, establishing a prima facie case with high chances of success
The plaintiff produced certificates of plot ownership Nos 022146 and 022149, took possession, rehabilitated the former quarry site and fenced the plots, facts not controverted. The defendants failed to explain how the plots ended up in the 1st defendant's hands with a different plot number. The court found the 1st defendant failed to exercise due diligence before purchase.
Irreparable harm and balance of convenience
The plaintiff risked losing her plots to the 1st defendant's ongoing development; damages were inadequate and the balance of convenience favoured her as the earlier purchaser in possession
The 1st defendant had commenced development before being stopped by the 2nd defendant. The court found the plaintiff would suffer irreparable loss not compensable by damages and that the balance of convenience tilted in her favour because she purchased the plots earlier than the 1st defendant and was already in possession.
Legal principles established
#- In an application for temporary injunction the applicant must establish a prima facie case, irreparable harm not compensable by damages, and that the balance of convenience favours granting the injunction (Giella vs Cassman Brown principles)
- 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
Court orders
#- 1.This suit is hereby transferred to the Chief Magistrate's Court Milimani to be consolidated with CMCC 10574 of 2018 and upon consolidation to be heard and determined expeditiously
- 2.An order of temporary injunction restraining the defendants/respondents by themselves, their servants, agents from encroaching, invading, constructing, alienating, disposing of or in any manner interfering with Plot Nos. V.13104 and V.13105 situate in Ruai within Embakasi Ranching scheme depicted on the ground as Plot No. V17505, and from evicting the plaintiff/applicant therefrom
- 3.The OCPD Kayole area to ensure compliance of the injunction order
- 4.Costs to abide the outcome of the main suit
- Jurisdiction invoked
- Sections 1A, 1B, 3, 3A and 63 of the Civil Procedure Act and Order 40 Rules 1A, 2, 3 and 4 of the Civil Procedure Rules 2010; transfer power under Section 18 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Monica Wambui Kabogo & 2 others v Philip Ondieki Mayenga & 3 others [2021] KEELC 4192 (KLR)[2021] KEELC 4192 (KLR)11 Feb 2021
Cite this brief
#Cite this brief
Caselaw, "Fiona J. Wangari v Benson Gachuhi Maina & 4 others [2020] KEELC 1628 (KLR)", Case Analysis (2020). ELC Case (Nairobi) – Notice of Motion dated 15th January 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1628/eng@2020-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.