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ELCDismissedNot stated in judgment (notice of motion dated 27th August 2020)· [2021] KEELC 3324 (KLR)

Caroline Kagendo & 6 others v Jema Karimi & another [2021] KEELC 3324 (KLR)

Environment and Land Court
12 May 2021
LMLucy N. Mbugua
1,955 words in judgment
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The bottom line

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The Environment and Land Court in Meru refused to stop an estate administratrix from collecting rent and distraining goods, because the applicants had already lost those issues in earlier court cases.

What this practically means

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Executive summary

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The applicants moved the Environment and Land Court at Meru by notice of motion dated 27th August 2020 under Sections 1A, 1B and 3A of the Civil Procedure Act, Section 3 of Cap 293 and Order 40 rules 1 and 2 of the Civil Procedure Rules, seeking an interlocutory injunction restraining the respondents from evicting, selling, advertising for sale, collecting or disposing of goods distrained in purported distress for rent, pending hearing of an intended appeal against the dismissal of their suit in Meru CMCC ELC No. 126 of 2020. The 5th applicant, Teresia Mwakithi, contended she was a wife of the deceased Justus M'Murithi M'Bagiri residing on his property and owed no rent, and that the distress did not comply with Cap 293. The 1st respondent, Jema Karimi, administratrix of the deceased's estate, opposed, relying on orders of 14th May 2020 in Meru High Court Succession Cause No. 15 of 2007 appointing her sole collector of estate rents, and on a judgment holding that the 5th applicant was not a wife of the deceased. She further asserted all applicants had vacated the premises. Applying Giella v Cassman Brown and Nguruman Limited v Jan Bonde Nielsen, the court held no prima facie case was established: the 5th applicant's status was res judicata, no evidence of development or irreparable loss was shown, damages would suffice, and the application was overtaken by events. The court dismissed the motion with costs to the respondents.

Key legal issues

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01

Whether the applicants established a prima facie case with a probability of success for interlocutory injunction

Holding

The applicants did not establish a prima facie case; the 5th applicant's claim to be a wife of the deceased was previously determined in the succession cause and the notices to collect rent were issued in line with court orders

Reasoning

The court applied the Giella and Nguruman tests. The 5th applicant claimed to be a wife of the deceased, but the High Court in Meru Succession Cause No. 15 of 2007 had already held she was not a wife, making that issue res judicata. The rent notices were issued pursuant to orders allowing only the administratrix to collect rent, so the injunction would merely scuttle those orders. No evidence of alleged developments was produced.

p. 3
02

Whether the application was overtaken by events

Holding

The application was overtaken by events as all the applicants had vacated the suit premises and the applicants did not rebut this averment by further affidavit despite being granted leave

Reasoning

The respondents deponed that all applicants had vacated the suit premises. On 4th November 2020 the court granted the applicants leave to file a further affidavit in reply, but none was filed. Unrebutted, that averment stood, meaning the injunction sought - restraining dispossession and distraint - had lost its practical purpose.

p. 3

Legal principles established

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  • A party cannot use an interlocutory application to re-litigate an issue already determined by a court of competent jurisdiction; such an issue is res judicata

Court orders

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  1. 1.The notice of motion dated 27th August 2020 is dismissed
  2. 2.Costs of the application to the respondents

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B and 3A
  • Cap 293 (Distress for Rent Act)Section 3
  • Civil Procedure Rules 2010Order 40 rules 1 and 2

Cases cited (8)

  • Giella v Cassman Brown
    (1973) EA 358
  • Mrao v First American Bank of Kenya Limited & 2 Others
    (2003) KLR
  • Panari Enterprises Limited vs. Lijoodi & 2 Others
    (2014) eKLR
  • Owayo v George Hannington Zephaniah Aduda t/a Aduda Auctioneers & Another
    (2007) 2 KLR 140
  • Hanah Wangui Mathenge & 2 Others vs. Rose Muthoni Mathenge
    (2017) eKLR
  • Daniel Lomagul Kandei & 2 others v Kamanga Holdings Limited & 40 others
    [2017] eKLR
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • Kenya Commercial Finance Co. Ltd v. Afraha Education Society
    [2001] Vol. 1 EA 86
On appeal from
Chief Magistrate's Court at Meru
CMCC ELC NO. 126 of 2020
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Section 3 of Cap 293; Order 40 rules 1 and 2 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, "Caroline Kagendo & 6 others v Jema Karimi & another [2021] KEELC 3324 (KLR)", Case Analysis (2021). Not stated in judgment (notice of motion dated 27th August 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3324/eng@2021-05-12

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