[2013] KEHC 1677 (KLR)
The court found that the issues of whether the suit property was legally sold, whether the applicant was defrauded, and whether the applicant is liable for rent are fundamental and cannot be determined at the interlocutory stage. The court held that these matters require full hearing and testing of evidence. As...
Source-derived case information.
- Citation
- [2013] KEHC 1677 (KLR)
- Parties
- Plaintiff: Mary Safari Mugenya; Plaintiff: Eric Mubweka Mugenya; Defendant: Cornelius Kagui Thuku; Defendant: Swiftway Enterprises; Defendant: CFC Stanbic Bank; Defendant: Thaara Auctioneers; Defendant: Commissioner of Lands; Defendant: The Registrar of Titles, Mombasa; Defendant: The Attorney General
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 390 of 2010
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Injunction Application
- Outcome
- interlocutory injunction refused; status quo to be maintained
- Judges
- SN Mukunya
- Legal Topics
- Injunctions, Fraudulent Transfer, Sale of Land, Title Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Safari Mugenya
Plaintiff
Eric Mubweka Mugenya
Plaintiff
Cornelius Kagui Thuku
Defendant
Swiftway Enterprises
Defendant
CFC Stanbic Bank
Defendant
Thaara Auctioneers
Defendant
Commissioner of Lands
Defendant
The Registrar of Titles, Mombasa
Defendant
The Attorney General
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the applicant is entitled to an interlocutory injunction restraining the 1st to 4th defendants from interfering with the suit property pending hearing and determination of the suit.
- 2 Whether the suit property was legally sold to the 1st defendant or fraudulently transferred.
- 3 Whether the applicant was defrauded of her property by the 1st and 2nd defendants.
Ratio Decidendi
The court found that the issues of whether the suit property was legally sold, whether the applicant was defrauded, and whether the applicant is liable for rent are fundamental and cannot be determined at the interlocutory stage. The court held that these matters require full hearing and testing of evidence. As such, the court declined to grant the interlocutory injunction sought by the applicant, instead ordering that the status quo be maintained until the case is heard and determined. No order for security for costs was made, and costs of the application were reserved to be in the cause.
Court Disposition
interlocutory injunction refused; status quo to be maintained
Orders
- Status quo to be maintained pending hearing and determination of the suit.
- Parties to urgently fix the case for hearing.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
HCC. NO. 390 OF 2010
MARY SAFARI MUGENYA ...................................... 1ST PLAINTIFF
ERIC MUBWEKA MUGENYA ................................... 2ND PLAINTIFF
- VERSUS -
1. CORNELIUS KAGUI THUKU
2. SWIFTWAY ENTERPRISES
3. CFC STANBIC BANK
4. THAARA AUCTIONEERS
5. COMMISSIONER OF LANDS
6. THE REGISTRAR OF TITLES, MOMBASA
7. THE ATTORNEY GENERAL ................................. DEFENDANTS
RULING
[1] This application prays for orders against the 1st, 2nd, 3rd and 4th defendants only. It is alleged that plaintiff approached the 1st and 2nd defendants for a loan advance. That the second defendant had represented himself as a financial advisor through its' directors. That the 1st and 2nd defendant told the plaintiff that they could arrange a loan for the plaintiff to be granted by CFC bank. She was asked for various documents. It is also alleged that the 1st and 2nd defendant asked the plaintiff whether they could use her title as collateral for their own loans in the same bank. The plaintiff is alleged to have accepted that arrangement in good faith. The breakdown for the loans is on paragraph 19 of the affidavit. The total loan was Kshs. 12 million. The Plaintiff signed for the loan and got a cheque for Kshs. 12 million. It is said that the plaintiff cashed the cheque and she gave the 1st and 2nd defendants their shares as agreed. She was given an account in which she would deposit her monthly instalments.
She says later in 2010 she saw Thaara Auctioneers who had come to proclaim her property. This is the time the plaintiff learned that she had been duped of her property. She later learnt that the property was in name of the 1st defendant. The plaintiff said she had satisfied the requirements for injunction as set in Giella -vs- Casman Brown1 and went on to enumilate how that was so. She asked for her motion dated 2nd October 2010 to be allowed.
[2] The first defendant denied the allegations. It argued that it was the applicant who had approached them to look for a buyer after a warrant of attachment had issued against the applicant. The 2nd defendant negotiated for purchase price at Kshs. 13 million. The 2nd defendant introduced the applicant to CFC bank after giving the applicant Kshs. 1 million. The 2nd defendant says he used the applicant's title as security. The 2nd defendant says the applicant was given Kshs. 12 million by CFC bank through their advocates as purchase of the property. The property was transferred from the applicant to the defendant and the transaction was completed on 12th October 2007. The property had been valued at Kshs. 15,000,000. 00. After the sale the applicant requested the 2nd defendant to lease the school on the premises and the lease for the same was agreed for 2 years at Kshs. 70,000 per month which the applicant then paid for sometime and then stopped. She then went to court. It argues there was no fraud but willing buyer willing seller.
[4] The 3rd and 4th defendants opposed the application. They associated themselves with the 1st and 2nd defendants submissions. They said the applicant sold the land to 1st defendant who charged it to 3rd defendant. The issues raised herein whether the suit property was legally sold to the 1st defendant, or whether the school on the premises is leased out to the applicant, or whether the applicant was defrauded of her property by the 1st and 2nd defendant are issues that this court cannot determine at this preliminary stage. These are issues that are fundamental in this case. They will be canvased and tested during the hearing of the case. The property is registered in the name of the 1st defendant. The applicant lives and runs a school on the suit premises. It is alleged she ought to pay the agreed rent. This issue is contested. The issue shall come out during the hearing. I order that status quo shall be maintained. Parties shall urgently fix this case for hearing when all the issues shall be canvassed. No case has been made out to me at this stage for security for costs and none shall be ordered.
Costs of this application shall be in the cause.
Dated and delivered in open court at Mombasa this 18th day of October, 2013.
S.N. MUKUNYA
JUDGE
18. 10. 2013
1 Giella -vs- Casman Brown 1973 EA. page 358