[1985] KEHC 116 (KLR)

[1985] KEHC 116 (KLR)

The court found that the plaintiff had established a prima facie case of fraud against the 1st defendant, who had already been convicted in a criminal court for obtaining the plaintiff's land as security by false pretences. The 2nd defendant failed to provide any contract of guarantee or proposed defence to rebut the plaintiff's allegations. On the balance of convenience, the court determined that the plaintiff would suffer irreparable harm if his land were sold before the suit was determined. Therefore, the court granted a temporary injunction restraining the defendants from selling or otherwise dealing with the plaintiff's land until the final determination of the suit.

Citation
[1985] KEHC 116 (KLR)
Parties
Plaintiff: Kamia; Defendant: Kariuki
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
25 June 1985
Case Number
Civil Case 2737 of 1984
Procedural Posture
Civil Case / Ruling on Application for Temporary Injunction
Outcome
application for temporary injunction granted
Legal Topics
Temporary Injunctions, Fraudulent Misrepresentation, Land Security, Irreparable Harm
Source Language
English
Civil Procedure Land and Property Temporary Injunctions Fraudulent Misrepresentation Land Security Irreparable Harm

Case Brief

Summary, issues, holding and outcome

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Parties

Kamia

Plaintiff

Kariuki

Defendant

Procedural Posture

Civil Case / Ruling on Application for Temporary Injunction

Legal Issues

  1. 1 Whether the plaintiff is entitled to a temporary injunction restraining the defendants from selling or dealing with his land pending determination of the suit.
  2. 2 Whether the 1st defendant fraudulently used the plaintiff's land as security to obtain a loan for himself.
  3. 3 Whether the absence of a contract of guarantee affects the 2nd defendant's position.

Ratio Decidendi

The court found that the plaintiff had established a prima facie case of fraud against the 1st defendant, who had already been convicted in a criminal court for obtaining the plaintiff's land as security by false pretences. The 2nd defendant failed to provide any contract of guarantee or proposed defence to rebut the plaintiff's allegations. On the balance of convenience, the court determined that the plaintiff would suffer irreparable harm if his land were sold before the suit was determined. Therefore, the court granted a temporary injunction restraining the defendants from selling or otherwise dealing with the plaintiff's land until the final determination of the suit.

Court Disposition

application for temporary injunction granted

Orders

  • The defendants are restrained from selling or in any way dealing with the plaintiff's parcel of land in question until the determination of this suit.
  • Costs in the cause.