Agnes Moraa Gichana v Grace Moraa Mogoi [2020] KEELC 2325 (KLR)
The bottom line
#Kenya's High Court dismissed a landowner's injunction bid because she never held registered title and waited too long to change her case.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant established a prima facie case for a temporary injunction
No prima facie case established; the suit property was never registered in the Applicant's name, the vendor husband never revoked the sale, and the Respondent has occupied since 2000
The Applicant relied on a gift and on the quashing of the Tribunal's decision, but title was never in her name. Her husband's affidavit denies her proprietary interest, and he never revoked the sale of parcel 887 to the Respondent's late husband. The original relief (stopping a burial) was overtaken by events, and granting an injunction at this stage would amount to final relief without trial.
Whether Francis Nyagaka Onchoka should be added as 2nd Defendant
Application to enjoin him refused; the draft amendment introduces a new cause of action (eviction and trespass damages) unrelated to the original suit
Under Order 1 Rule 10 the court may add parties where the suit was instituted by a wrong plaintiff through bona fide mistake. The draft amended plaint does not allege such mistake but instead seeks to substitute an entirely new cause of action ten years after filing, contrary to settled principles and prejudicial to the Respondent and to the overriding objective.
Legal principles established
#- The conditions for a temporary injunction are a prima facie case with probability of success, irreparable injury not compensable by damages, and, if in doubt, the balance of convenience
- A prima facie case is one on which, on the material presented, a court properly directing itself concludes there exists a right apparently infringed so as to call for an explanation from the opposite party
- An amendment should not alter or substitute the cause of action on which the original suit was raised, nor cause undue prejudice to the other side
Court orders
#- 1.Dismissal of the Plaintiff's Notice of Motion dated 14.6.2018
- 2.Costs of the application to the Respondent
- Jurisdiction invoked
- Original civil jurisdiction of the High Court; application under Order 1 Rule 10 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Agnes Moraa Gichana v Grace Moraa Mogoi [2020] KEELC 2325 (KLR)", Case Analysis (2020). Notice of Motion dated 14.6.2018 (Kisii High Court Civil Suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2325/eng@2020-05-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.