Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedEnvironment and Land Appeal 10 of 2022· [2024] KEELC 6070 (KLR)

Matha Mwelu Waita v Sammy Kinai David & Another

High Court of Kenya
18 September 2024
TMT. Murigi
1,514 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

The High Court blocked the sale or transfer of a disputed family plot until the appeal is decided, because no title exists and damages would not fix a sale.

What this practically means

#

Executive summary

#
By a Notice of Motion dated 30th June 2022 brought under Order 40 Rules 1 and 3 of the Civil Procedure Rules and Sections 1A and 3A of the Civil Procedure Act, the Applicant, Matha Mwelu Waita, sought a temporary injunction restraining the Respondents from entering, leasing, fencing, selling, disposing of or interfering with Plot No. 1324 Kiu Settlement Scheme No. 7, and maintenance of the status quo, pending hearing of the main matter. She averred she was the beneficial owner of the plot, that the Respondents had trespassed, destroyed her property, subdivided it and were offering it for sale. The Respondents, through Sammy Kinai David, opposed the application, deposing that their father was allocated Plot No. 7 in 1970, later shared by a family committee chaired by the Deputy County Commissioner, with the Applicant occupying her own 2.5 ha portion; they contended she produced no ownership documents. The court considered the Respondents' submissions alone, the Applicant having filed none. Framing a single issue - whether the Applicant met the threshold for a temporary injunction pending appeal under Order 42 Rule 6(6) - the court applied Giella v Cassman Brown, Mrao and Patricia Njeri. It found a prima facie arguable case, given the unresolved ownership dispute and absence of title; found irreparable harm not compensable in damages if the property were transferred to third parties; and held the balance of convenience favoured maintaining the status quo. The application was allowed with each party bearing its own costs.

Key legal issues

#
01

Whether the Applicant established a prima facie case with probability of success

Holding

The Applicant established a prima facie arguable case, there being a dispute over ownership of the suit property and no title having been issued

Reasoning

The court applied the Mrao definition of a prima facie case. The Appellant asserted the suit property belongs to the family with no title issued, and that she had occupied it for 33 years. Ground 2 of the appeal faulted the trial magistrate for failing to appreciate the ownership dispute. On that material the court concluded the appeal was arguable, satisfying the first Giella condition.

p. 3
02

Whether the Applicant would suffer irreparable harm not compensable by damages

Holding

The Applicant would suffer irreparable harm if the suit property, over which no title had been issued, were transferred to third parties

Reasoning

Both parties were in occupation of the suit property and no title had been issued. The Applicant apprehended that the Respondents, having subdivided the property, would dispose of it to third parties. The court found that such a transfer could not adequately be compensated by an award of damages, satisfying the second Giella condition.

p. 4
03

Where the balance of convenience lies

Holding

The balance of convenience tilts in favour of maintaining the status quo on the suit property

Reasoning

Citing Virginia Edith Wambui v Joash Ochieng Ougo, the court held that in serious conflicts of fact the status quo should be maintained until trial. Weighing the hardship to the Applicant if the injunction was refused against the hardship to the Respondents if granted, the court found preservation of the property pending appeal the more convenient course.

p. 4

Legal principles established

#
  • Where there are serious conflicts of facts, the trial court should maintain the status quo until the dispute has been decided on a trial

Court orders

#
  1. 1.That a temporary injunction be and is hereby issued against the Respondents either by themselves and/or agents, servants and/or any person claiming through them from selling disposing or in any way interfering Plot No. 1324 Kiu Settlement Scheme No. 7 and/or that the status quo be maintained pending the hearing and determination of the appeal herein
  2. 2.Each party to bear its own costs

Authorities

#

Legislation

  • Civil Procedure RulesOrder 40 Rules 1 and 3
  • Civil Procedure ActSections 1A and 3A
  • Civil Procedure RulesOrder 42 Rule 6(6)

Cases cited (4)

  • Patricia Njeri & 3 Others v National Museum of Kenya
    [2004] eKLR
  • Giella v Cassman Brown & Co. Ltd
    [1973] EA 358
  • Mrao Limited v First American Bank of Kenya & 2 Others
    [2003] eKLR
  • Virginia Edith Wambui v Joash Ochieng Ougo
    Civil Appeal No. 3 of 1987
On appeal from
Subordinate court (trial magistrates' court)
Jurisdiction invoked
Order 42 Rule 6(6) of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Matha Mwelu Waita v Sammy Kinai David & Another", Case Analysis (2024). Environment and Land Appeal 10 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6070/eng@2024-09-18

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