Eileen Mercy Wangari Karugi v Crispus Maina Gaitho [2020] KEELC 2125 (KLR)
The bottom line
#A Kenyan court froze two properties in a cohabitation dispute because a long-term occupant was evicted without notice, but refused to halt completed sales or already-owned assets.
What this practically means
#Executive summary
#Key legal issues
#Prima facie case in respect of Galaxy Resort Mtwapa (L.R. 9122/93)
Prima facie case established; the applicant had lived on the property since 2009 and was evicted without notice
The court found it undisputed that the applicant lived on Galaxy Resort Mtwapa since February 2009. The respondent did not plead that he served her with notice to vacate. Even if title had been transferred to Rose Wambui Maina in 2009, indirect eviction without ample notice was wrongful, disclosing a prima facie case with probability of success.
Injunction over Galaxy Resort Voi
Refused
The respondent produced evidence that he purchased the Voi plots between 1997–1999 and built Galaxy Resort Voi before the parties met in 2003. The applicant's alleged contribution (furniture, crockery, cutlery, curtains during 2012 renovation) is itemisable and assessable, so damages are an adequate remedy and irreparable loss is not shown.
Injunction over Taveta Phase II Plot 2618
Granted as a preservation order
The letter of offer dated 27th August 2012 showed the plot was acquired during the relationship, albeit in the respondent's name. No sale agreement was annexed despite the respondent's assertion that he sold it. An injunction issued to preserve the property so the plaintiff could pursue her entitlement claim at the full hearing.
Jurisdiction over Matrimonial Property Act issues at interlocutory stage
Court declined to determine the parties' relationship or matrimonial property claims at the interlocutory stage
The applicant's submissions invoked the Matrimonial Property Act, over which the court held it lacked jurisdiction to determine, and in any event determining the parties' relationship would be premature at the interlocutory stage. Authorities cited on that subject were held inapplicable for now.
Interlocutory threshold applied
The court applied the Giella v Cassman Brown test
The court framed its role as limited to the Giella v Cassman Brown criteria: prima facie case, irreparable loss, and balance of convenience. It found a prima facie case regarding the Mtwapa home and Taveta plot, but not regarding the Voi property, the completed St. Kevin sale, or unidentified plots.
Legal principles established
#- A person in long occupation of premises is entitled to ample notice before eviction; indirect means of eviction are impermissible
- Temporary injunctions will not issue where the transaction sought to be restrained is already complete
- Injunctive relief is unavailable where a claimant's contribution can be adequately compensated by an award of damages
Court orders
#- 1.Temporary injunction restraining the defendant from dealing with, selling, offering for sale, disposing of, leasing or alienating the property comprised in Plot No. 2618 Taveta Phase II Settlement Scheme pending the hearing and determination of the suit
- 2.Temporary injunction restraining the defendant from dealing with, selling, offering for sale, disposing of, leasing or alienating the property comprised in Plot No. 9122/93 Jumba Ruins Road (Galaxy Resort Mtwapa) pending the hearing and determination of the suit
- 3.Orders in terms of Prayer 5: the defendant, his servants, agents and/or friends restrained from harassing, intimidating, abusing, threatening, evicting or entering the plaintiff's home or workplace on plot 9122/93 Jumba Ruins Road, Galaxy Resort Mtwapa, pending the hearing and determination of the suit
- 4.Prayer 7 (power of arrest) declined
- 5.Costs of the motion to abide the winner in the main suit
- Jurisdiction invoked
- Original civil jurisdiction; application under Order 40 rules 1, 2 and 3 of the Civil Procedure Rules and Sections 63, 1A and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Eileen Mercy Wangari Karugi v Crispus Maina Gaitho [2020] KEELC 2125 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2125/eng@2020-06-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.