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ELCPartially AllowedNot stated in the excerpt (Chuka ELC suit)· [2024] KEELC 1132 (KLR)

Mageu & 2 others v Smep Microfinance Bank & 3 others (Environment & Land Case E003 of 2022) [2024] KEELC 1132 (KLR)

Environment and Land Court
29 February 2024
CYC.K Yano
3,322 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Chuka court stopped the auction of family land charged to Equity Bank, and ruled the borrower could not escape the case by claiming he was wrongly named.

What this practically means

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Executive summary

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The ruling determines two interlocutory applications in a land dispute over Title No. Kathwana/845. The plaintiffs, brothers of the 3rd defendant (the registered owner), claim customary trust over the suit land and allege no customary consent was obtained before it was charged to the 1st defendant bank to secure a loan taken by the 4th defendant, with the 3rd defendant as guarantor. The 1st defendant instructed the 2nd defendant to exercise statutory power of sale after default. The 4th defendant, John Mbui Githinji, sought to have his name struck out for misjoinder and the suit against him struck out as frivolous and abusive. The court found, on his own affidavit, that he was the principal debtor who jointly arranged the facility and that the suit land was offered as security; Order 1 rule 9 of the Civil Procedure Rules bars defeating a suit for misjoinder, and the court has discretion to implead necessary parties. That application was dismissed with costs. The plaintiffs' application for a temporary injunction restraining advertising or sale of the land was allowed. Applying Giella v Cassman Brown and Nguruman, the court found a prima facie case with chances of success (claimed customary trust and residential/matrimonial occupation of the land), potential irreparable harm, and that the lower risk of injustice favoured granting the injunction, lest the suit be rendered nugatory by a public auction. The injunction issued in terms of prayer 3, with costs in the cause. The 3rd defendant also raised alleged fraud by the bank and 4th defendant, noting a related suit in Chuka High Court E001/23.

Key legal issues

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01

Whether the 4th defendant was improperly joined as a party

Holding

Application for striking out dismissed; the 4th defendant is a necessary party.

Reasoning

The court found from the applicant's own affidavit that he jointly arranged the credit facility with the 3rd defendant and was the principal debtor, with the suit land offered as security. Order 1 rule 9 bars defeating a suit for misjoinder or non-joinder, and the court has wide discretion, even suo moto, to implead a party necessary for complete adjudication of all questions in the suit.

p. 3
02

Whether a temporary injunction should issue restraining sale of Kathwana/845

Holding

Injunction granted; plaintiffs met the Giella/Nguruman criteria.

Reasoning

Applying Giella v Cassman Brown and Nguruman Ltd v Jan Bonde Nielsen, the court found a prima facie case (claimed customary trust over the charged land), irreparable harm (residences, matrimonial homes, graves on the land, and the suit rendered nugatory if auctioned), and that the lower risk of injustice lay in granting the injunction rather than refusing it.

p. 6

Legal principles established

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  • A suit cannot be defeated by reason of misjoinder or non-joinder of parties (Order 1 rule 9 of the Civil Procedure Rules)
  • An applicant for an interlocutory injunction must sequentially satisfy prima facie case, irreparable injury and balance of convenience
  • Where the court doubts the applicant's right it may determine the matter on the balance of convenience and seek to maintain the status quo

Court orders

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  1. 1.The Notice of Motion dated 26th June, 2023 is dismissed with costs.
  2. 2.The Notice of Motion dated 26th July, 2023 is allowed in terms of prayer 3 thereof; costs of the application in the cause (temporary injunction restraining the 1st and 2nd defendants from advertising or selling Title No. Kathwana/845 pending hearing and determination of the suit)

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 rules 1 and 2
  • Civil Procedure RulesOrder 1 rule 9
  • Civil Procedure RulesOrder 40 rule 1
  • Land Act2012 (statutory power of sale)
  • Oaths and Statutory Declarations ActNot specified (requirement of dated affidavits)

Cases cited (7)

  • Giella –vs- Cassman Brown
    (1973) EA 358
  • Nguruman Limited –vs- Jan Bonde Nielsen & 2 Others
    CA No. 77 of 2012 (2014) eKLR
  • Mrao Ltd. –vs- First American Bank of Kenya Ltd.
    (2003) eKLR
  • Pius Kipchirchir Kogo –vs- Frank Kimeli Tenai
    (2018) eKLR
  • Paul Gitonga Wanjau –vs- Gathuthis Tea Factory Company Ltd & 2 Others
    (2016) EKLR
  • Amir Suleiman –vs- Amboseli Resort Limited
    (2004) eKLR
  • Robert Mugo Wa Karanja –vs- Eco bank (Kenya) Limited & Another
    [2019] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land parcel Kathwana/845; Civil Procedure Rules (Order 1 rules 1, 2 and 9; Order 40 rule 1) invoked

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, "Mageu & 2 others v Smep Microfinance Bank & 3 others (Environment & Land Case E003 of 2022) [2024] KEELC 1132 (KLR)", Case Analysis (2024). Not stated in the excerpt (Chuka ELC suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1132/eng@2024-02-29

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