Albert Mwaniki Kwenja & 2 others v Jernado Njoka Kwenja [2020] KEELC 2060 (KLR)
The bottom line
#An Embu court refused to stop a relative from selling or collecting rent on a disputed plot because the claimants couldn't prove their contribution or ownership.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiffs established a prima facie case with a probability of success for an interlocutory injunction over plot Embu/Municipality/317
They did not; the Defendant exhibited the application for the plot, payment of allotment fees, loan application and certificate of lease in his name, while the Plaintiffs did not demonstrate their contribution.
The court weighed the competing claims. The Defendant produced documentary evidence of acquisition and development: plot application, allotment fee payment, loan application and certificate of lease in his name. The Plaintiffs, claiming co-ownership through joint contribution, could not clearly demonstrate their role or contribution. Shareholding in the Company did not equate to co-ownership of the suit property.
Whether the Plaintiffs would suffer irreparable damage absent an injunction
No; any loss was purely financial and quantifiable, with no suggestion the Defendant could not meet damages.
The court found that any loss the Plaintiffs might suffer would be financial and clearly quantifiable. There was no evidence or suggestion that the Defendant lacked means to satisfy any award of damages should the Plaintiffs succeed at trial, so damages were an adequate remedy.
Whether protective orders over rental income (deposit into the Company's account) should issue
No; having failed the first two Giella principles, the Plaintiffs were not entitled to protective orders over rent.
The Plaintiffs sought orders preventing the Defendant from collecting rent and directing deposit of rents into the Company's account. Since they failed to demonstrate a prima facie case with probability of success and irreparable harm, no protective orders regarding rental income could issue.
Costs of the application
Although the Plaintiffs failed, each party to bear own costs since the parties are relatives; costs in the cause.
Costs follow the event under the proviso to Section 27 of the Civil Procedure Act per Hussein Janmohamed. However, the court exercised discretion not to penalize the unsuccessful Plaintiffs in costs because the disputing parties are relatives, opting for costs in the cause.
Legal principles established
#- Principles for grant of interim injunction: prima facie case with probability of success; irreparable damage not compensable by damages; balance of convenience where court is in doubt
- Shareholding in a company does not by itself establish co-ownership of the company's property
- Balance of convenience is considered only where the court is in doubt on the first two Giella principles
- Costs follow the event under Section 27 of the Civil Procedure Act unless the court directs otherwise for good reason
Court orders
#- 1.The Plaintiffs' notice of motion dated 6th March 2019 is dismissed in its entirety.
- 2.Each party shall bear his own costs of the application.
- Jurisdiction invoked
- Inherent jurisdiction and Civil Procedure Act (Cap. 21) Sections 1A, 1B, 3 and 3A; Order 40 Rule 2 and Order 51 Rule 1 of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Albert Mwaniki Kwenja & 2 others v Jernado Njoka Kwenja [2020] KEELC 2060 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2060/eng@2020-02-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.