[2020] KEHC 9124 (KLR)
The High Court found that the trial magistrate failed to properly apply the established principles for granting an injunction as set out in Giella v Cassman Brown. The 1st respondent was not the registered owner of the suit property, and her remedy lay in the contractual provisions of the sale agreement rather than...
Source-derived case information.
- Citation
- [2020] KEHC 9124 (KLR)
- Parties
- Appellant: Kenya Women Finance Micro Finance PLC; Respondent: Agnes Thirindi Sammy; Respondent: Charles Mutuma
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 85 of 2019
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal allowed
- Legal Topics
- Injunctions, Statutory Power of Sale, Ownership Disputes, Sale of Land Agreements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Women Finance Micro Finance PLC
Appellant
Agnes Thirindi Sammy
Respondent
Charles Mutuma
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial magistrate properly applied the principles for granting an injunction.
- 2 Whether the 1st respondent, not being the registered owner, was entitled to injunctive relief against the appellant's exercise of statutory power of sale.
- 3 Whether the temporary injunction was properly granted and justified.
Ratio Decidendi
The High Court found that the trial magistrate failed to properly apply the established principles for granting an injunction as set out in Giella v Cassman Brown. The 1st respondent was not the registered owner of the suit property, and her remedy lay in the contractual provisions of the sale agreement rather than in injunctive relief. The court held that it was therefore wrong to restrain the appellant from exercising its statutory power of sale. The temporary injunction granted by the lower court was not justified in the circumstances, and the appeal was allowed. Each party was ordered to bear their own costs.
Court Disposition
appeal allowed
Orders
- The appeal is allowed.
- Each party shall bear their own costs.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
CIVIL APPEAL NO. 85 OF 2019
KENYA WOMEN FINANCE MICRO FINANCE PLC....APPELLANT
VERSUS
AGNES THIRINDI SAMMY....................................1ST RESPONDENT
CHARLES MUTUMA..............................................2ND RESPONDENT
JUDGMENT
By an application dated 14th day of May 2019 the 1st Respondent/Plaintiff in Maua CMC ELC C.No. 82 of 2019 sought to restrain the Appellant itself, agents, employees or any other person acting at its behest from entering, auctioning, selling, dealings, trespassing over any other manner interfering with LR No. Amwathi/Maua/3058 pending hearing and determination of this suit.
The application was opposed vide Replying affidavit sworn on 29th May 2019 by Jeremiah Kanu Muriithi the Credit Risk Manager for the Appellant in Mount Kenya Region.
The Application was canvassed by way of written submissions which the trial magistrate considered and delivered a ruling on 24th June 2019 granting an order of temporary injuction which was to lapse 6 months from 24. 6.2019.
Being aggrieved by the ruling of the trial magistrate the Appellant filed the appeal herein on (11) grounds set out in the memorandum of Appeal.
The Appeal herein was canvassed by way written submissions. The duty of this court is to re-look the evidence on record in the trial court and the independently consider whether the ruling of the trial magistrate should be upheld or set aside.
Having considered the Ruling of the trial Magistrate and the application and submissions in the Lower court as well as the submissions in support and against the appeal herein. This court is of the view that the trial magistrate did not properly apply the principles of injunction as ennuated in the land Mark case if Giella vs Casman Brown [1973] EA for reasons the Respondent is not the Registered owner of the suit property and that her remedy lay in clause 7 of the agreement for sale of land annextures GTS -1-it was therefore wrong to restrain the Appellant from exercising statutory power of sale in the circumstances. The trial Magistrate issued temporary injuctions orders to last for 6 months meaning that by 24th day of January 2020 the orders will have lapsed but didn’t say why that condition was put.
The appeal herein succeeds. However, each party will bear their own costs.
HON A. ONG’INJO
JUDGE
RULING DELIVERED, DATED AND SIGNED IN COURT ON16TH DAY OF JANUARY 2020.
In the presence of :
C/A: Kinoti
Appellant: Mr Kimaita Advocate
1st Respondent: M/s Kimathi & Mutembei Advocate – No appearance
2nd Respondent:
HON A. ONG’INJO
JUDGE