[1985] KEHC 33 (KLR)

[1985] KEHC 33 (KLR)

The court found that the plaintiff had established a prima facie case of fraud against the 1st defendant, who had been criminally convicted for obtaining the plaintiff's land as security by false pretences. The 2nd defendant failed to produce any contract of guarantee or file a defence to rebut the plaintiff's claims. Given the risk of irreparable harm to the plaintiff if his land were sold before the suit's determination, and the balance of convenience favouring preservation of the property, the court granted the temporary injunction restraining the defendants from selling or dealing with the land pending the outcome of the suit.

Citation
[1985] KEHC 33 (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
? 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 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 been criminally convicted for obtaining the plaintiff's land as security by false pretences. The 2nd defendant failed to produce any contract of guarantee or file a defence to rebut the plaintiff's claims. Given the risk of irreparable harm to the plaintiff if his land were sold before the suit's determination, and the balance of convenience favouring preservation of the property, the court granted the temporary injunction restraining the defendants from selling or dealing with the land pending the outcome of the suit.

Court Disposition

Application for temporary injunction granted.

Orders

  • Defendants are restrained from selling or in any way dealing with the plaintiff's parcel of land (Muguga/Kanyariri/239) until determination of the suit.
  • Costs in the cause.