Beatrice Njoki Kiguoya v Consolidated Bank & another [2018] KEELC 3095 (KLR)
The bottom line
#Kenya's High Court refused to stop a bank auction because the mother suing her son over a charged property couldn't show an arguable case.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether to grant the prayer for a temporary injunction restraining the Defendants from selling, disposing of or interfering with the suit property pending the hearing and determination of the suit
- 2.Whether the Plaintiff/Applicant has made out a prima facie case with a probability of success
Key legal issues
#Whether the Plaintiff established a prima facie case with a probability of success
She did not; her claim that her son fraudulently acquired the suit property from her late husband's estate was unproven at the interlocutory stage, and the 1st Defendant had conducted a due diligence search showing the 2nd Defendant as registered proprietor
The Plaintiff admitted the property was registered in the 2nd Defendant's name and that she was merely challenging the transmission from the estate. The 1st Defendant carried out a search confirming the 2nd Defendant's proprietorship before advancing the loan, and no issue was raised on the statutory notices. On this material, the court could not conclude that there existed a right apparently infringed so as to call for an explanation or rebuttal.
Whether the remaining Giella conditions (irreparable injury, balance of convenience) fell for consideration
No; the conditions are sequential and failure of the first disposes of the application
Relying on Kenya Commercial Finance Co. Ltd v Afraha Education Society and Nguruman Ltd v Jan Bonde Nielsen, the court held that the second condition is only addressed if the first is satisfied, and where no prima facie case is established, irreparable injury and balance of convenience need no consideration.
Legal principles established
#- The conditions for grant of an interlocutory injunction are: prima facie case with probability of success, irreparable injury not compensable by damages, and balance of convenience if in doubt
- The Giella conditions are sequential; failure to establish a prima facie case is fatal and the remaining conditions need not be addressed
- A prima facie case is a genuine and arguable case showing an apparently infringed right calling for rebuttal
- In interlocutory applications the court makes no conclusive or definitive findings of fact or law
Court orders
#- 1.The Notice of Motion dated 9th August 2016 is dismissed
- 2.Each party shall bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent jurisdiction of the High Court to grant interlocutory relief in a civil suit (the judgment does not cite a specific constitutional or statutory provision)
Relief refused
#Temporary injunction restraining the Defendants from selling, disposing of or interfering with the suit property pending hearing and determination of the suit
The Plaintiff failed to establish a prima facie case with a probability of success, the first and threshold condition in Giella v Cassman Brown; the other conditions need not be considered
Costs
Each party shall bear their own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In light of the foregoing, I hereby dismiss this application. Each party shall bear their costs.
At this stage, the plaintiff applicant has not demonstrated that she has a prima facie case with a probability of success at the trial.
If prima facie case is not established, then irreparable injury and balance of convenience need no consideration.
In an interlocutory application, the court is not required to make any conclusive or definitive findings of fact or law, most certainly not on the basis of contradictory affidavit evidence or disputed provisions of the law.
Issues in the judgment
#The court's name is not expressly stated in the judgment; the coram identifies only 'JUDGE' and 'PRESIDING JUDGE' at Nairobi
Two dates appear: the judgment was signed on 12th April 2018 but delivered on 19th April 2018 by a different judge
The case number and the identity of the 2nd Defendant's name are not stated in the judgment text
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Beatrice Njoki Kiguoya v Consolidated Bank & another [2018] KEELC 3095 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3095/eng@2018-04-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.