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ELCDismissed· [2022] KEELC 1274 (KLR)

Jane Gakii Marete v Ahmed Abdalla Mwidau & another [2022] KEELC 1274 (KLR)

High Court of Kenya
23 February 2022
NMN.A. Matheka
1,134 words in judgment
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The bottom line

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A Mombasa court refused to stop a lender's action over a charged plot because the buyer couldn't show her case would likely succeed.

What this practically means

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Executive summary

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The Plaintiff moved the High Court at Mombasa by a Notice of Motion dated 3rd November 2021 under Order 40 Rules 1, 2 and 3 and Order 51 Rule 1 of the Civil Procedure Rules, seeking temporary injunctions restraining the Defendants from trespassing on, transferring, disposing of or otherwise interfering with her claimed quiet possession of Plot L.R. Subdivision No. 2544 (Original No. 1508/5) Section I Mainland North, pending hearing of the application and the suit. She asserted she purchased the property from the 1st Defendant by agreement dated 4th June 1998, paid the full purchase price, and has been in possession and made improvements since, but the property remains mortgaged to the 2nd Defendant, who rejected her offers to repay the debt and threatened eviction. The 2nd Defendant opposed the application, contending it was misconceived and lacking in candour: the property stands charged to it under a Decree obtained in August 2007, the 1st Defendant remains contactable through his advocates, and the court had already, in a judgment delivered on 20th January 2017 in an Originating Summons for removal of Caveat No. 15351/6 registered by the Plaintiff, dealt with the issues raised. Applying the Giella v Cassman Brown principles, the court found as fact that the Plaintiff did not dispute the subsisting charge and Decree, and held she failed to establish a prima facie case with a high probability of success. The application was dismissed with costs to the Defendants on 23rd February 2022.

Key legal issues

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01

Whether the Plaintiff established a prima facie case with a high probability of success for a temporary injunction

Holding

No prima facie case was established; the property is undisputedly charged to the 2nd Defendant under a subsisting Decree obtained in August 2007, and the Plaintiff's claim of a discharged or redeemable charge was untenable

Reasoning

The court found as fact that the Plaintiff did not dispute that the suit property remains charged to the 2nd Defendant in respect of a Decree obtained in August 2007, supported by a Decree and Certificate of Costs. It further found the matter had already been the subject of a prior Originating Summons in which the court, on 20th January 2017, dealt with removal of a caveat the Plaintiff registered. On these facts the Plaintiff failed the Giella test, the application was found unmerited and dismissed with costs.

p. 2

Legal principles established

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  • The established principles for granting an interlocutory injunction are a prima facie case with a high probability of success, irreparable injury not compensable by damages, and, if in doubt, the balance of convenience

Court orders

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  1. 1.The Notice of Motion dated 3rd November 2021 is dismissed with costs to the Defendants

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1, 2 and 3
  • Civil Procedure RulesOrder 51 Rule 1

Cases cited (1)

  • Giella vs Cassman Brown & Co Ltd
    (1973) EA 358
Jurisdiction invoked
Order 40 Rules 1, 2 and 3 and Order 51 Rule 1 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, "Jane Gakii Marete v Ahmed Abdalla Mwidau & another [2022] KEELC 1274 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1274/eng@2022-02-23

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