Automated Summary
Key Facts
The plaintiff, Vivianne Naipanoi Kuya, claims the 1st Defendant (her husband) unlawfully charged a matrimonial land parcel (KAJIADO/KISAJU/10733) to Molyn Credit Limited (3rd Defendant) in 2015 without her consent. The charge secured a Kshs. 7.2 million loan to the 2nd Defendant (Napoleon Wakukha Murende). The 3rd Defendant asserts spousal consent was executed properly before registration. The land was sold at auction in August 2016 for Kshs. 33 million to Eric Timothy Balongo (5th Defendant). The court dismissed the plaintiff's injunction application, finding the matter 'overtaken by events' as the land had already been transferred to a third party. The plaintiff argues the sale was illegal and fraudulent, while the 3rd Defendant contends she was informed and consented to the charge.
Issues
- Whether the Plaintiff would suffer irreparable harm that cannot be adequately compensated by damages if the injunctive orders are denied, given the property was already sold to a third party.
- Whether the balance of convenience favors the Plaintiff in granting the injunction, considering the property was sold via public auction to a third party for value.
- Whether the Plaintiff established a prima facie case with a probability of success regarding the validity of the charge over the matrimonial property and the legality of its subsequent sale.
Holdings
- The court determined that the Plaintiff's alleged injuries were speculative, as she failed to demonstrate the harm she would suffer if the injunctive orders were denied.
- The balance of convenience was found to tilt in favor of the 3rd Defendant, as the sale of the suit land had already occurred and the application was overtaken by events.
- The court found that the Plaintiff did not establish a prima facie case with a probability of success because she granted spousal consent before the charge was registered and delayed filing the application.
Remedies
The court dismissed the Plaintiff's Notice of Motion dated 11th April 2017 with costs. The application for interim injunction was found to be unmerited as it had been overtaken by events, including the sale of the suit land to a third party and the failure to demonstrate irreparable harm.
Legal Principles
The court applied the principles for granting an interlocutory injunction as established in Giella Vs. Cassman Brown & Co. Ltd (1973) EA 358, requiring (1) a prima facie case with probability of success, (2) irreparable injury without adequate compensation by damages, and (3) a balance of convenience favoring the applicant. The plaintiff failed to meet these criteria as the suit land had already been sold to a third party, rendering the application overtaken by events.
Precedent Name
- ENW Vs. PWM & 2 Others
- Giella Vs. Cassman Brown & Co. Ltd
- Nguruman Ltd. Vs. Jan Bonde Nielsen
Cited Statute
- Land Act, Section 79(3)
- Civil Procedure Act, Sections 1A, 3A, Orders 1, 8, 40, 51
Judge Name
Christine Ochieng
Passage Text
- '.........I would like to state that where a property that would otherwise be considered as matrimonial property is tendered as security for a bank loan as in the instant matter, such property becomes a commercial commodity available in the market and liable to be sold by the Chargee under the Chargee's statutory power of sale and the exercise of that power of sale cannot be defeated by a claim that such property constitutes matrimonial property.'
- I note the Plaintiff indeed signed the spousal consent. I note that the 1st and 2nd Defendants have not filed any response to this application and yet there are the ones who took the loan and secured it with a charge over the suit land. Further that the suit land has already been sold to a third party.
- '...the applicant must establish that he 'might otherwise' suffer irreparable injury which cannot be adequately compensated remedied by damages in the absence of an injunction, this is a threshold requirement and the burden is on the applicant to demonstrate, prima facie, the nature and extent of the injury. Speculative injury will not do; there must be more than an unfounded fear or apprehension on the part of the applicant.'