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ELCPartially AllowedNot disclosed in the judgment· [2021] KEELC 878 (KLR)

Caroline Waithera Kirumba & 3 others v Susan Nyambura Wachira & 9 others [2021] KEELC 878 (KLR)

Environment and Land Court
18 November 2021
LKL. Komingoi
1,773 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Nairobi land court refused to stop the sale of apartments because the defendants alleging fraud didn't prove a strong enough case, though they can still amend their defence.

What this practically means

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Executive summary

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The 1st and 4th Defendants moved the court by Notice of Motion dated 24th August 2018 under various provisions of the Civil Procedure Rules, the Civil Procedure Act and Article 159(2)(d) of the Constitution, seeking leave to amend their defence and counterclaim, joinder of six proposed Defendants (5th-10th), and a temporary injunction restraining the Plaintiffs and proposed Defendants from wasting, alienating or dealing with apartments D1-D8 and the common areas on L.R No.1870/V/217. The 4th Defendant, through director John Wachira Wambugu, alleged that the 3rd Defendant fraudulently sold the apartments in a purported exercise of statutory power of sale without payment of the purchase price into the mortgage account, that signatures on the leases were forged as confirmed by a forensic document examination report, and that the Plaintiffs and proposed Defendants were felling trees and advertising the property for sale to defeat justice. The Plaintiffs and proposed Defendants, through Charles Munga Irungu, responded that they purchased the units under a private treaty arrangement between the 3rd and 4th Defendants to recover loan arrears, that leases were duly registered between 2006 and 2007, and that prior fraud complaints and criminal proceedings were withdrawn. The court framed three issues and applied the Giella vs Cassman Brown principles. It found the applicants had failed to demonstrate a prima facie case with a probability of success and declined the injunction, but granted leave to amend and joinder, with the 5th-10th Defendants to file pleadings within 21 days, and ordered the applicants to bear the costs of the application.

Key legal issues

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01

Whether the applicants established a prima facie case with a probability of success to warrant a temporary injunction

Holding

No temporary injunction granted; the applicants failed to demonstrate a prima facie case with probability of success

Reasoning

Applying Giella vs Cassman Brown and Mrao Ltd vs First American Bank of Kenya Ltd on what constitutes a prima facie case, the court found that the applicants, who alleged fraudulent sale and forgery in the exercise of the 3rd Defendant's statutory power of sale, had not demonstrated a prima facie case with a probability of success at trial, and so declined the injunctive relief sought.

p. 3
02

Whether leave to amend the defence and counterclaim and to enjoin the proposed Defendants should issue

Holding

Leave to amend granted; the proposed 5th-10th Defendants to be enjoined and to file pleadings within 21 days

Reasoning

The Plaintiffs and proposed Defendants did not oppose the prayer for leave to amend the defence and counterclaim, nor the joinder of the proposed Defendants; they only sought timelines for compliance. The court granted the amendments with corresponding leave to the Plaintiffs to amend if need be, and directed the enjoined Defendants to file their pleadings within 21 days.

p. 3

Legal principles established

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  • In an application for injunction the onus is on the Applicant to satisfy the court that it should grant an injunction, applying the principles in Giella vs Cassman Brown

Court orders

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  1. 1.The 1st and 4th Defendants/Applicants granted leave to amend their defence and counterclaim within 21 days from the date of the ruling, with corresponding leave to the Plaintiffs to amend if need be.
  2. 2.The 5th to 10th Defendants directed to file their pleadings and documents within 21 days from the date of the ruling.
  3. 3.Costs of the application to be borne by the 1st and 4th Defendants/Applicants.

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 40 rule 1
  • Civil Procedure Rules 2010Order 1 rule 6
  • Civil Procedure Rules 2010Order 1 rule 10
  • Civil Procedure Rules 2010Order 8 rule 3
  • Civil Procedure Rules 2010Order 8 rule 5
  • Civil Procedure Rules 2010Order 51 rule 1
  • Civil Procedure Act Cap 21 Laws of KenyaSection 1A
  • Civil Procedure Act Cap 21 Laws of KenyaSection 1B
  • Civil Procedure Act Cap 21 Laws of KenyaSection 3A
  • Constitution of Kenya 2010Article 159(2)(d)

Cases cited (6)

  • Paul Gitonga Wanjau v. Gahuthi Tea Factory Company Ltd & Others
    [2016] eKLR
  • Moses C. Muhia Njoroge & 2 Others v. Jane W Lesaloi & 5 Others
    High Court ELC Case No.514 of 2013
  • Muigai Housing Finance Co. Ltd & Another
    HCCC No.1678 of 2001
  • Michael Gitere & Another vs Kenya Commercial Bank Limited
    [2018] eKLR
  • Giella vs Cassman Brown & Co. Ltd
    [1973] EA 358
  • Mrao Ltd vs First American Bank of Kenya Ltd & 2 Others
    [2003] KLR 125
Jurisdiction invoked
Article 159(2)(d) of the Constitution of Kenya 2010; sections 1A, 1B, 3A of the Civil Procedure Act Cap 21 and Orders 40 rule 1, 1 rule 6, 1 rule 10, 8 rule 3, 8 rule 5 and 51 rule 1 of the Civil Procedure Rules 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Caroline Waithera Kirumba & 3 others v Susan Nyambura Wachira & 9 others [2021] KEELC 878 (KLR)", Case Analysis (2021). Not disclosed in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/878/eng@2021-11-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.