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ELCAllowedNot stated in the judgment· [2016] KEELC 42 (KLR)

Agnes Wanjiru Kairu v Gerald Kairu Gicheru [2016] KEELC 42 (KLR)

Environment and Land Court
16 December 2016
LWL N Waithaka
1,076 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court stopped a husband from collecting rent on shared property because he never denied signing a 2007 rent-sharing agreement with his wife.

What this practically means

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Executive summary

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The plaintiff, wife of the respondent, moved the court by Notice of Motion dated 24th February 2016 seeking an injunction to restrain the respondent from collecting rent from and interfering with her use of half of the premises on land parcel Tetu/Unjiru/1657, pending hearing of the suit. She relied on an agreement dated 4th August 2007 under which the parties agreed to share rental proceeds from two properties, and deponed that she financed the bulk of the construction on the suit property through loans. The respondent opposed, admitting the marriage but asserting that the plaintiff lived elsewhere and collected rent from another family property, and contending the suit was an abuse of process since the parties were still married. In submissions he alleged the agreement was signed under duress. Applying the Giella v Cassman Brown principles and the definition of a prima facie case in Mrao v First American Bank, the court found the respondent had not denied executing the 2007 agreement and had tendered no evidence of duress. The plaintiff therefore established a prima facie case with probability of success. Since the subject matter was land, damages would not be an adequate remedy, and the balance of convenience tilted in her favour. The court granted the injunction restraining the respondent from collecting rent or interfering with the plaintiff's use of half the premises, allowed her to collect rent from two premises as agreed, directed a restriction on the suit property, and directed compliance with Order 11 and taking a pretrial date within 90 days.

Key legal issues

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01

Whether the plaintiff established a prima facie case based on the agreement dated 4th August 2007

Holding

Yes. The respondent did not deny executing the agreement and his allegation of duress was unsupported, so the plaintiff met the Mrao threshold.

Reasoning

The court found the agreement of 4th August 2007, sharing rental proceeds from the two plots, was admitted by the respondent. His only challenge was that he signed under duress, but no evidence was tendered to support that allegation. The admitted agreement showed an infringement of a right and a probability of success, satisfying the Mrao standard.

p. 2
02

Adequacy of damages and balance of convenience

Holding

Damages would not be adequate since the subject matter is land, and the balance of convenience tilts in favour of the plaintiff.

Reasoning

The court held that because the subject matter of the suit is land, damages may not be an adequate remedy. It further found, based on the agreement executed between the parties, that the balance of convenience favoured the plaintiff. On these findings, the injunction orders sought pending hearing and determination of the suit were granted.

p. 2

Legal principles established

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  • An applicant for an injunction must show a prima facie case with probability of success, irreparable injury not compensable by damages, and failing which the court decides on a balance of convenience (Giella v Cassman Brown).
  • A prima facie case is more than an arguable case; the evidence must show an infringement of a right and probability of success upon trial.

Court orders

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  1. 1.Injunction restraining the respondent, his servants and/or agents from collecting rent and interfering with the plaintiff's use of half of the premises on the suit property pending hearing and determination of the suit
  2. 2.Plaintiff permitted to collect rent from two of the premises as agreed by the parties
  3. 3.Restriction to be placed on the suit property
  4. 4.Parties directed to comply fully with Order 11 of the Civil Procedure Rules and take a date for pretrial within 90 days

Authorities

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Legislation

  • Civil Procedure RulesOrder 11

Cases cited (2)

  • Giella v Cassman Brown & Company Limited
    [1973] E.A 358
  • Mrao Limited Vs First American Bank Kenya Ltd & 2 others
    [2003] KLR 125
Jurisdiction invoked
Inherent jurisdiction of the court to grant interlocutory injunctive relief pending hearing of the suit ( Notice of Motion under the Civil Procedure Rules, Order 11 compliance directed)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Agnes Wanjiru Kairu v Gerald Kairu Gicheru [2016] KEELC 42 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/42/eng@2016-12-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.