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ELCAllowedNot stated in judgment· [2022] KEELC 1886 (KLR)

Raphael Mulinge Muthusi & 2 others v Mary Ndila Nyolo [2022] KEELC 1886 (KLR)

High Court of Kenya
26 January 2022
ANA. Nyukuri
2,236 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court blocked construction and sale of disputed Machakos market plots until an appeal over their ownership is decided.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 1st October 2021 in which the Appellants/Applicants sought a temporary injunction restraining the Respondent from constructing on, disposing of or transferring Plots No. 58, 60 and 137 in Kivaa Market, Masinga Sub-County, pending the hearing and determination of their appeal against the dismissal of their injunction application by the lower court on 24th September 2021. The Applicants claimed ownership of Plot No. 58, purchased from one John Wambua, while the Respondent claimed the ground she occupied was Plot No. 137, formerly Plot No. 60, which she had purchased and on which she had been paying rates. She relied on a County Surveyor's report showing Plot No. 58 did not exist on the ground. The court framed a single issue: whether the applicants met the threshold for a temporary injunction pending appeal. Relying on Order 42 Rule 6(6), Patricia Njeri & 3 Others v National Museum of Kenya, Giella v Cassman Brown and Mrao Ltd v First American Bank, the court found the ownership question hotly contested, identified an arguable ground in the alleged inconsistency of the trial magistrate's ruling on the prima facie case, and held that continued construction would alter the subject matter and render the appeal nugatory. Noting the Respondent was in possession but that the dispute remained undetermined, the court allowed the application, restraining the Respondent from constructing on, disposing of or transferring the plots pending appeal, with costs of the application to abide the appeal.

Key legal issues

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01

Whether the applicants met the threshold for a temporary injunction pending appeal

Holding

The application was allowed. The appeal raised arguable issues, notably whether the trial magistrate contradicted herself on the prima facie case finding, and construction would alter the subject matter of the suit, rendering the appeal nugatory.

Reasoning

The court applied Order 42 Rule 6(6) and the Patricia Njeri principles, read with Giella v Cassman Brown. It found the question of ownership of the plot highly contested, the applicant's Ground 5 arguable, and that continued construction would alter the subject matter and render the appeal nugatory. It balanced the parties' positions under Sections 1A and 1B of the Civil Procedure Act and concluded the suit property should be preserved pending determination of the dispute.

p. 3
02

Irreparable injury

Holding

Construction on the disputed plot would alter the subject matter of the suit and render the appeal nugatory, satisfying the irreparable injury test.

Reasoning

The respondent argued that as the applicants were not in occupation, any injury could be compensated in damages. The court disagreed, holding that ongoing construction would change the subject matter of the suit before the dispute was resolved, so damages would not be an adequate remedy.

p. 3
03

Balance of convenience

Holding

The respondent is in possession, which the applicants concede; the applicants sought only that she not carry out further construction, and the court found preservation of the property just.

Reasoning

The court noted possession by the respondent was conceded, but since ownership was contested and the existence of Plot No. 58 was unresolved, the just course was preservation of the property rather than allowing development to continue.

p. 3

Legal principles established

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  • The High Court in the exercise of its appellate jurisdiction has power to grant a temporary injunction pending appeal where the ends of justice demand so and the procedure for instituting the appeal has been complied with.

Court orders

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  1. 1.Pending the hearing and determination of the Appellant's appeal, the Respondent, her agents and/or servants restrained from constructing, disposing and/or transferring Plot No. 58, 60 and 137 in Kivaa Market in Masinga Sub-County, Machakos County
  2. 2.Costs of the application shall abide the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(6)
  • Civil Procedure ActSections 1A and 1B
  • Constitution of KenyaArticle 40

Cases cited (9)

  • Central Bank of Kenya Deposit Protection Fund Board vs. Uhuru Highway Development Ltd & 4 Others
    Nairobi Civil Appeal No. 91 of 1999
  • Joseph Siro Mosiomo vs. Housing Finance Company of Kenya Limited & 3 Others
    [2008] eKLR
  • Said Almed vs. Mannasseh Benga & Another
    [2019] eKLR
  • Giella vs. Cassman Brown
    [1973] EA 358
  • Elizabeth Muthoni Hussein vs. Vikesh Jinit Shah
    [2018] eKLR
  • Fredrick Nganga Thuo vs. Peter Mungai Njuho
    [2019] eKLR
  • Nehemiah Charles Omwoyo vs. Attorney General & 2 Others
    [2021] eKLR
  • Patricia Njeri & 3 Others vs. National Museum of Kenya
    [2004] eKLR
  • Mrao Limited vs. First American Bank of Kenya & 2 Others
    [2003] eKLR
On appeal from
Subordinate court (Magistrates' Court, Masinga/Machakos)
Not stated
Jurisdiction invoked
Order 42 Rule 6(6) of the Civil Procedure Rules - High Court's power in exercise of appellate jurisdiction to grant temporary injunction pending appeal

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (8)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Raphael Mulinge Muthusi & 2 others v Mary Ndila Nyolo [2022] KEELC 1886 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1886/eng@2022-01-26

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