Wanjama Kihara v Zephania Kihara Wanjama & another [2018] KEELC 4301 (KLR)
The bottom line
#The High Court in Bungoma stopped KCB from auctioning a farmer's land because his son allegedly secured a second loan using a forged Land Control Board consent.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant had established a prima facie case with a probability of success regarding consent to the second loan and charge
- 2.Whether the applicant would suffer irreparable injury not compensable by damages if the statutory power of sale were exercised
- 3.Whether a temporary injunction should issue restraining sale of E. Bukusu/S. Kanduyi/9958 pending determination of the suit
Key legal issues
#Whether a prima facie case was established for an interlocutory injunction
The applicant established a prima facie case because the 1st defendant admitted in court that he did not have his father's consent to the second loan and that the Land Control Board consent produced was not given by the applicant
The court noted the dispute over consent to the second loan and charge. The 1st respondent admitted he lacked his father's consent for the second loan, meaning the second charge over agricultural land lacked Land Control Board consent. The applicant had reported the theft of his title to police and the son faced criminal charges for making a false document. These matters raised serious questions to be tried.
Whether damages would be an adequate remedy
The consequences to the applicant were not capable of remedy by damages
The court considered that if the claim were established and the criminal case proved, the consequences would be dire for the applicant as the 1st respondent is his son, and equally dire for the 1st respondent. Loss of the family land through a charge allegedly procured by forgery could not be adequately compensated by an award of damages.
Legal principles established
#- The test for an interlocutory injunction is a prima facie case with probability of success, irreparable injury not compensable by damages, and failing that, the balance of convenience
Court orders
#- 1.Temporary injunction restraining the 2nd defendant, its servants and/or agents from selling by public auction or otherwise alienating, disposing of and/or interfering with the plaintiff's property known as E. Bukusu/S. Kanduyi/9958 pending the hearing and determination of the suit
- 2.Costs of the application to be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 40 Rules 1 and 2 and Order 51 of the Civil Procedure Rules (interlocutory injunction jurisdiction)
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.
The plaintiff applicant in raising that issue has established a prima facie case.
To my mind this consequence to the applicant is not capable of remedy by damages.
I hold that the applicants application has merit I allow the same as prayed. Costs of the application shall be in the cause.
Issues in the judgment
#The 2nd respondent bank is referred to interchangeably as '2nd respondent' and '2nd defendant', and the 1st respondent as '1st respondent' and '1st defendant' throughout the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wanjama Kihara v Zephania Kihara Wanjama & another [2018] KEELC 4301 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4301/eng@2018-02-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.