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ELCPartially AllowedNot stated in the judgment as provided· [2021] KEELC 2311 (KLR)

Freda Njoki Ngigi v Wilson Ngigi Waithaka & 6 others [2021] KEELC 2311 (KLR)

Environment and Land Court
29 July 2021
JKJ G Kemei
2,509 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to fully block a bank's sale of charged land but froze the situation for 90 days so the owner's appeal could be heard.

What this practically means

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Executive summary

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The applicant, wife of the 1st respondent (registered owner of L.R LOC.3/GITURU/329), sought an injunction pending appeal restraining the 5th and 6th respondents (a bank and related party) from auctioning or dealing with the suit property, which she claimed was a matrimonial home charged without her spousal consent, which she alleged was forged. Her earlier injunction application in the subordinate court had been struck out as res judicata in light of Nairobi Civil No. 365 of 2018, prompting this appeal. The 5th and 6th respondents, through a replying affidavit of their legal manager Faith Nteere, maintained the loan was taken by the 1st-4th respondents with the property as security, that spousal consent was executed before an advocate, that statutory notices were served, and that the consent issue had already been determined in the Nairobi case; they also contended the application was defective for invoking Order 40 rule 1 instead of Order 42 rule 6. The 1st respondent asserted the bank misrepresented that no charge would be registered and that his wife was unaware of the loan. The court framed two issues: defectiveness and merit. It held the wrong rule invocation was not fatal since the application sat at the interlocutory stage of the appeal and no injustice would result. On merit, applying Giella, Mrao and Nguruman, it declined to determine the substantial spousal-consent issues, found land used as collateral is capable of valuation and hence no irreparable harm, and instead of a full injunction granted status quo orders in terms of prayer 3 for 90 days, within which the applicant was to prosecute her appeal. Costs of the application were awarded to the applicant. Delivered at Murang'a on 29 July 2021 by J G Kemei, Judge.

Key legal issues

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01

Whether the application was fatally defective for invoking Order 40 rule 1 rather than Order 42 rule 6

Holding

Not fatally defective; the court may grant an injunction on appeal where no injustice results from the mischaracterisation

Reasoning

The respondents argued the application should have been brought under Order 42 rule 6, Order 40 applying at trial. The court held the application was at the interlocutory stage of the appeal and that no injustice would be occasioned by treating it as if brought under the correct provisions, so it was not fatally defective.

p. 3
02

Whether the applicant met the Giella threshold for an injunction pending appeal

Holding

Not fully; irreparable harm not shown since land as collateral is quantifiable, so only status quo orders for 90 days were granted

Reasoning

Applying Giella v Cassman Brown, Mrao and Nguruman, the court declined to determine the substantial spousal-consent issues, which belong to the appellate court. It found land pledged as collateral is capable of being valued and damages assessed, hence irreparable injury was not demonstrated, but preserved the status quo for 90 days to keep the appeal from being academic.

p. 3

Legal principles established

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  • An injunction may be granted in the exercise of appellate jurisdiction where the procedure for instituting an appeal has been complied with, and misdescription of the applicable rules is not fatal where no injustice is occasioned
  • At interlocutory stage the court's role is to preserve the status quo of the subject matter to avoid rendering the appeal academic

Court orders

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  1. 1.Status quo orders granted in terms of prayer 3 of the application for a period of 90 days, within which the applicant should prosecute her appeal
  2. 2.Costs of the application to be met by the applicant

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 rule 1(a) and (b)
  • Civil Procedure RulesOrder 42 rule 6
  • Civil Procedure RulesOrder 51
  • Constitution of Kenya, 2010Articles 40 and 159
  • Civil Procedure ActSection 78(2)
  • Married Women's Property Act of 1882Section 17
  • Land ActNot specified
  • Land Registration ActNot specified

Cases cited (12)

  • Giella vs Cassman Brown and Co. Ltd
    (1973) EA 358
  • Mrao vs First American Bank of Kenya Ltd
    C.A. No. 39 of 2002 (2003 eKLR)
  • Nguruman Limited Vs Jan Bonde Nielsen & 2 others
    eKLR
  • Mugo Muiru Investment Ltd vs EW B & 2 Others
    [2017]
  • Fidelity Bank Case
  • Charter House Investment Ltd vs Simon K Sang and others
  • Antoine Ndiye vs African Virtual University
    [2015]
  • Charles Wahome Gethi vs Angela Wairimu Gethi
    {2008}
  • Samvir Trustee Limited vs Guardian Bank Limited
  • Mohammed Salim T/A Choice Butchery vs Nasserpuria Memon Jamat
  • Aron C Sharma vs Ashana Raikundalia
  • Charles Kariuki Njuri vs Francis Kimaru
On appeal from
Subordinate Court (Principal Magistrate's Court)
Not stated
Jurisdiction invoked
Appellate jurisdiction over subordinate court; Articles 40 and 159 of the Constitution and section 78(2) of the Civil Procedure Act; Order 42 rule 6 of the Civil Procedure Rules

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, "Freda Njoki Ngigi v Wilson Ngigi Waithaka & 6 others [2021] KEELC 2311 (KLR)", Case Analysis (2021). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2311/eng@2021-07-29

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