[2008] KEHC 844 (KLR)
The court found that the plaintiff failed to disclose the existence of a prior suit (Hccc200/98) in which her husband was found liable for battery and the subject property was lawfully auctioned to satisfy the judgment debt. The court held that there was no prima facie case for granting an injunction, as the sale...
Source-derived case information.
- Citation
- [2008] KEHC 844 (KLR)
- Parties
- Plaintiff: Salome Wanjiku Njuguna; Defendant: Joel Kungu Wainaina; Defendant: Wilson Waithaka Gitau
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 2115 of 2007
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- application dismissed with costs to the defendants
- Legal Topics
- Injunctive Relief, Fraudulent Transfer of Land, Non Disclosure of Material Facts, Execution of Judgment, Auction of Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Salome Wanjiku Njuguna
Plaintiff
Joel Kungu Wainaina
Defendant
Wilson Waithaka Gitau
Defendant
Procedural Posture
Injunction Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the plaintiff is entitled to an interlocutory injunction restraining the defendants from transferring the suit property.
- 2 Whether the plaintiff failed to disclose material facts relevant to the application for injunction.
- 3 Whether the sale and transfer of the suit property was lawful following execution of a judgment debt.
Ratio Decidendi
The court found that the plaintiff failed to disclose the existence of a prior suit (Hccc200/98) in which her husband was found liable for battery and the subject property was lawfully auctioned to satisfy the judgment debt. The court held that there was no prima facie case for granting an injunction, as the sale and transfer of the property followed due process of law. The plaintiff's omission of material facts undermined her claim for equitable relief. Accordingly, the application for an interlocutory injunction was dismissed with costs to the defendants.
Court Disposition
application dismissed with costs to the defendants
Orders
- The application for injunction dated 14 May 2008 is dismissed.
- Costs awarded to the defendants/respondents.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 2115 of 2007
SALOME WAINJIKU NJUGUNA …………….....………….. PLAINTIFF
VERSUS
JOEL KUNGU WAINAINA …………………………. 1ST DEFENDANT
WILSON WAITHAKA G ITAU ………............…….. 2ND DEFENDANT
RULING
APPLICATION FOR INJUNCTIONDATED 14 MAY 2008
I: Background
1. The plaintiff/applicant one Salome Wanjiku Njuguna is the wife to one Francis Njuguna Kungu. She filed suit against the two defendants being Joel Kungu Wainaina and Wilson Waithaka Gitau claiming that the two had fraudulently sold land parcel LR No. Kiganjo/Gachika 2/1331 from one to the other.
2. The suit was filed on 22 December 2006. No action on the file took place until 14 May 2008 when under certificate of urgency the applicant filed injunctive orders seeking to restrain the two defendants from transferring the said propriety to the buyer.
3. The defendant appeared through their advocates and brought to my attention Hccc case No.200/98.
Joel Kungu Wainaina
V
Francis Njuguna Kungu
Hccc200/98
4. In this case, brought under TORT the plaintiff had sued the defendant for Battery. He was found 100% liable and damages amounting to Ksh.180,000/- was awarded to the said Joel Kungu Wainaina (Ombinja J) 21. 2.02. The defendant had no assets. His land was auctioned and bought by the 2nd defendant in this present case.
5. The defendant No.1/respondent showed to court that there was fraud on the plaintiffs applicants part as she attempted to change the status of the matter by transferring the land from her husband to himself and her children.
6. The application for injunction was duly opposed.
II: Opinion
7. It is important at all times that there be disclosure of material facts. The applicants/plaintiff failed to disclose the existence of the earlier case of Hccc200/98 - the cause of the land being auctioned and sold. Judgment was entered (Ombija J 21. 2.02) and the transfer occurred in the year 2005 and 2006. It was noted that the respondent had filed prohibitory orders on 6. 11. 03 but the registrar failed to register this until 29 January 2007.
8. I accordingly hold that there is no prima facie case made out for an injunction to issue. The application is dismissed with costs to the respondents defendants.
DATED THIS 26TH DAY OF SEPTEMBER 2008 AT NAIROBI.
M.A. ANG’AWA
JUDGE
J. Kariuki instructed by the Jessee Kariuki & Co. Advocates for the plaintiff/applicant – present
K. Njai instructed by Kiania Njau & Co. Advocates for the defendant/respondent – present