[2012] KEHC 3563 (KLR)
The court found that the plaintiff failed to establish a prima facie case as required for the grant of an interlocutory injunction. The allegations of fraud and coercion were not supported by the pleadings or evidence, and the defendants' affidavits provided plausible explanations for the property exchange....
Source-derived case information.
- Citation
- [2012] KEHC 3563 (KLR)
- Parties
- Plaintiff: Ruth Njoki Mwaura; Defendant: Lucas Ng’ang’a; Defendant: Pastor Daniel Maina
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 51 of 2011
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed
- Judges
- CW Meoli
- Legal Topics
- Interlocutory Injunctions, Land Ownership Disputes, Fraud and Coercion, Compensation for Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ruth Njoki Mwaura
Plaintiff
Lucas Ng’ang’a
Defendant
Pastor Daniel Maina
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiff has established a prima facie case with a probability of success for the grant of an interlocutory injunction.
- 2 Whether the plaintiff would suffer irreparable harm if the injunction is not granted.
- 3 Whether damages would be an adequate remedy for the plaintiff.
Ratio Decidendi
The court found that the plaintiff failed to establish a prima facie case as required for the grant of an interlocutory injunction. The allegations of fraud and coercion were not supported by the pleadings or evidence, and the defendants' affidavits provided plausible explanations for the property exchange. Furthermore, the court determined that the disputed plots have ascertainable monetary value, making damages an adequate remedy. Consequently, the court was not persuaded that it would be just to grant the orders sought by the plaintiff, leading to the dismissal of the application.
Court Disposition
application dismissed
Orders
- The plaintiff's application for interlocutory injunction is dismissed.
- Costs will be in the cause.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT MALINDI
Civil Suit 51 of 2011
RUTH NJOKI MWAURA………...........................................PLAINTIFF
VERSUS
LUCAS NG’ANG’A.....................................................1ST DEFENDANT
PASTOR DANIEL MAINA ………………………. .2ND DEFENDANT
R U L I N G
1. The principles guiding the grant of interlocutory injunctions were enunciated in the famous case of Giella v Cassman Brown Co. Ltd. An applicant must satisfy the court that:
a)He has a prima facie case with a probability of success.
b)He will suffer irreparable damage if the injunction order is refused.
If the court is in doubt, it will look at the balance of convenience.
2. Several key facts are not in dispute. The plaintiff and the second defendant were joint purchasers of plot no. 87 Mpeketoni which was subdivided into part A and B. The plaintiff took the latter portion while the 2nd defendant took the former. Subsequently, the 2nd defendant sold his portion to the 1st defendant.
3. The plaintiff now complains that the 1st and 2nd defendants prevailed upon her to sign an agreement with the 1st defendant by which she exchanged plot 7B with the 1st defendants’ plot no. 103 Mpeketoni. She claims that the two defendants took advantage of her age and illiteracy to take away her plot.
4. In their replying affidavits the defendants have sought to explain the circumstances in which the exchange occurred. They assert that the exchange agreement was transparent free and witnessed by several persons; that the plaintiff’s family participated in the discussions surrounding the exchange and that the local administration confirmed that the new plot was to go to the plaintiff.
5. Although the plaintiff’s application appears to allege fraud against the defendant, the plaint does not contain any averment to that effect. The plaint asserts the alleged discovery that plot 103 Mpeketoni did not belong to the 1st defendant.
6. The defendants have denied fraud, and coercion and for his part, the 1st defendant has demonstrated how he acquired the plot no. 103 Mpeketoni. There is no evidence to controvert his claims to the ownership of that plot, and secondly, the plaintiff’s allegations to have been coerced are sorely tested by the contents of the two replying affidavits. Besides, her initial pleadings do not suggest any coercion or fraud. It is not clear whether the plaintiff has attempted to take possession of plot no. 103 Mpeketoni. I am not satisfied that a prima facie case has been established.
7. On the question of damages, it is apparent that the plots have a monetary value and damages would be adequate compensation to the plaintiff.
8. On the material before me, I am not convinced that it would be just to grant the orders sought by the plaintiff in the present application. The same is dismissed. Costs will be in the cause.
Delivered and signed this5thday ofJune, 2012 in the presence of Mr. Mwadilo holding brief for Mr. Omwancha for the plaintiff, Mr. Okuto holding brief for Mr. Wakahiu for defendants.
C. W. MEOLI
JUDGE