Peter Mathigu Gichamba v Grace Nyambura Kamau; Beatrice Gathoni Kamau & another (Interested Party) [2021] KEELC 1612 (KLR)
The bottom line
#A Kenyan land buyer with a title deed still could not evict the family living on the property, because the court found they faced irreparable harm.
What this practically means
#Executive summary
#Key legal issues
#Interim injunction - prima facie case, irreparable harm, balance of convenience
The Interested Party established a prima facie case with probability of success; irreparable loss not compensable by damages; balance of convenience favoured the party in possession; injunction granted.
The court applied the Giella v Cassman Brown test. Material on record showed the suit property originally belonged to the deceased, the sale to the Plaintiff was challenged before the High Court, the Interested Party and family had always been in occupation, and the Plaintiff demolished structures without a court order. Damages would not adequately compensate an eviction rendering the family homeless, and the Plaintiff filed suit primarily to obtain possession.
Leave to amend counter-claim to include special damages
Leave granted; parties should be freely allowed to amend pleadings to determine the real issues in controversy.
Though no party submitted on the issue, the court relied on the principle in Eastern Bakery v Castellino that amendments should be freely allowed to determine the real questions in controversy, and granted the Interested Party leave to amend her counter-claim within 14 days.
Variation or setting aside of interim injunction under Order 40 Rule 7
Dismissed; the Plaintiff showed no fundamental change of circumstances nor non-disclosure of material facts.
The Plaintiff's only ground was that he is the registered proprietor and the injunction prejudiced his constitutional right to property. He did not allege fraud, concealment of material facts, or a material change of circumstances between the grant of the interim order on 5th March 2021 and his application on 15th March 2021. On the Onwonga v Ratemo principles, the criteria for variation or setting aside were not met.
Legal principles established
#- Order 40 Rule 7 applies to discharge or variation of an interim injunction only upon a fundamental change of circumstances or where the injunction was obtained ex parte without full disclosure of material facts.
- Costs follow the event unless the court, for good reason, directs otherwise under Section 27 of the Civil Procedure Act.
- Parties should be freely allowed to amend their pleadings for the purpose of determination of the real issues in controversy.
Court orders
#- 1.An interim injunction restraining the Plaintiff from entering, interfering with, evicting the Defendants and the Interested Party, demolishing houses and structures, removing graves or in any other manner dealing with Title No. Nyandarua/Gilgil West/391 pending the hearing and determination of the suit.
- 2.The Interested Party granted leave to amend the counter-claim to include special damages within 14 days.
- 3.The Plaintiff's notice of motion dated 15th March, 2021 dismissed.
- 4.The Plaintiff to bear costs of the notice of motion dated 3rd March, 2021 and the notice of motion dated 15th March, 2021.
- Jurisdiction invoked
- Original jurisdiction over the suit; applications brought under Order 40 Rules 1, 2, 4 and 7 of the Civil Procedure Rules 2010 and Section 1A of the Civil Procedure Act (Cap. 21)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Mathigu Gichamba v Grace Nyambura Kamau; Beatrice Gathoni Kamau & another (Interested Party) [2021] KEELC 1612 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1612/eng@2021-10-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.