Mwangi v Liberty Life Assurance Ltd & another
The bottom line
#A Mombasa court stopped a bank from auctioning a Mtwapa apartment because the owner showed she was never properly served with the sale notices.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff established a prima facie case with probability of success
Yes - her proprietary claim as registered owner who had paid mortgage was sufficient at the interlocutory stage
The court applied Giella v Cassman Brown and Mrao Ltd. It held the court is not required to make final findings of contested facts and law at the interlocutory stage, only to weigh the relative strength of the parties' cases. The Plaintiff's claim as registered owner of the suit property who had paid mortgage instalments established a genuine and arguable case warranting explanation from the Defendants.
Whether the Plaintiff would suffer irreparable harm not compensable by damages
Yes - the suit property was the only thing she owned after losing her job, and its loss could not be measured with accuracy
Relying on Nguruman Limited, the court held the applicant must demonstrate actual, substantial and demonstrable injury that cannot be adequately compensated by damages. The Plaintiff, rendered jobless by the 1st Defendant, showed the property was her only asset, so monetary compensation would not be an adequate remedy.
Where the balance of convenience lies
It tilts in favour of the Plaintiff, who has invested in the property by mortgage remittance
The court found the Defendants would lose nothing if the injunction preserved the suit property, whereas the Plaintiff stood to suffer great loss if it were auctioned. The court also noted the arrears claimed were monetary and recoverable, and that ownership could not be determined until a full trial, so the title should be preserved in the meantime.
Legal principles established
#- Interlocutory injunctions preserve the substratum of the suit and are not meant to occasion prejudice to any party
- Where a registered proprietor with a proprietary claim faces an unprocedurally threatened statutory power of sale, an injunction may issue pending trial
Court orders
#- 1.Notice of Motion application dated 1st September, 2022 allowed in its entirety
- 2.Temporary injunction issued restraining the Defendants from selling, alienating, disposing of, entering, leasing, appointing a receiver, trespassing on, wasting or dealing with Apartment D2 on Block D, L.R No. 1464/IV/MN (Original No. 257) Title No. 66600 Mtwapa pending hearing and determination of the suit
- 3.1st Defendant ordered to provide the Plaintiff with the mortgage facility statement of accounts
- 4.Suit set down for hearing on 9th May, 2024 with a Pre-Trial Conference mention on 6th February, 2024
- 5.Costs of the application to be in the cause
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwangi v Liberty Life Assurance Ltd & another", Case Analysis (2023). Civil Suit 102 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21246/eng@2023-10-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.