Catherine Njeri Macharia v Macharia Kagio & another [2020] KEELC 1928 (KLR)
The bottom line
#A Kenyan court refused to evict a property's registered owner, ruling that parties already evicted must use proper legal channels, not repeat failed applications.
What this practically means
#Executive summary
#Key legal issues
#Criteria for mandatory injunction on an interlocutory application
The 1st defendant failed to meet the special-circumstances threshold and had no counterclaim to found the relief
The court adopted the Locabi International Finance test, as applied in Kenyan decisions, requiring special circumstances and a high sense of assurance. Since the 2nd defendant was the registered proprietor and the order striking her out of the suit had not been set aside, and the 1st defendant had no counterclaim, the mandatory injunction could not issue; a similar plea had also failed in the Court of Appeal, rendering the application an abuse of process.
Plaintiff's injunctive relief against a struck-out party pending appeal
Dismissed; no injunction can issue against the 2nd defendant who is no longer a party, and the court cannot overturn the Court of Appeal's decision
The suit against the 2nd defendant was struck out on 1/10/2010 and that order had neither been set aside nor stayed. Injunctive orders directed against her could therefore not issue in this suit. Further, the Court of Appeal had already declined a similar plea in Civil Application No Nai 308 of 2013; inviting the trial court to overturn it was beyond its jurisdiction.
Legal principles established
#- No injunctive order of any kind can be issued against a party who has been struck out of the suit unless the striking-out order is set aside
- A mandatory injunction on an interlocutory application requires special circumstances and a high sense of assurance
- Orders alleged to be illegal nullities must be challenged in the manner provided by law, not collaterally
Court orders
#- 1.The 1st defendant's notice of motion dated 6/11/2019 is dismissed for lack of merit
- 2.The plaintiff's notice of motion dated 19/11/2019 is similarly dismissed for lack of merit
- 3.The respective applicants in the two applications shall bear costs of their respective applications
- Jurisdiction invoked
- Original civil jurisdiction of the High Court over the land suit; inherent powers under Section 34 of the Civil Procedure Act invoked by the 1st defendant
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Catherine Njeri Macharia v Macharia Kagio & another [2020] KEELC 1928 (KLR)", Case Analysis (2020). Not stated in the judgment (Eastleigh, LR No 36/1/871). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1928/eng@2020-06-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.