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ELCPartially AllowedNot stated in the excerpt provided

Mary Njeri Waweru v Joseph Karanja Mbugua & Another (interim injunction pending appeal)

Environment and Land Court (High Court, exercising appellate jurisdiction)
12 July 2024
2,809 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was a ruling by the Environment and Land Court at Nairobi (M.D. Mwangi J) on the Appellant's Notice of Motion dated 24th November 2023 seeking a temporary injunction restraining the Respondents from transferring, selling, charging, leasing or otherwise dealing with Plot No Title LR 12422/749 pending the hearing and determination of her appeal against a lower court ruling of 22nd July 2022 that had dismissed her suit as statute-barred under Section 4(a) of the Limitation of Actions Act. The Appellant, administrator of the estate of John Waweru, contended the deceased co-owned the property and sold it to the Respondents in 2011 for Kshs 1,250,000 payable in instalments, but the full purchase price was never paid, entitling the estate to rescind and recover the land. She feared an imminent sale to Rosewall Management Limited. The 2nd Respondent opposed, citing inordinate delay, lack of locus standi, non-compliance with Order 9 Rule 9, absence of a valid appeal, and a pending Children's Court case in which the property was subject of execution for maintenance arrears. The court framed two issues: whether an interim injunction may be granted pending appeal, and whether the test was satisfied. Relying on Order 42 Rule 6, Giella v Cassman Brown, Nguruman and related authorities, the court found the Applicant had an arguable appeal and a prima facie case, that disposal of the property would render the appeal nugatory, and that the balance of convenience favoured her. The application was allowed; a temporary injunction issued and costs were ordered to abide the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether an order of interim injunction may be granted pending appeal.
  2. 2.Whether the Applicant has satisfied the test for the grant of an order of interim injunction pending appeal.

Key legal issues

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01

Whether an interim injunction can issue pending appeal

Holding

Order 42 Rule 6 empowers the court in its appellate jurisdiction to grant a temporary injunction where the procedure for instituting the appeal has been complied with; the Applicant had filed a Memorandum of Appeal in accordance with Order 42.

Reasoning

The court relied on Order 42 Rule 6 of the Civil Procedure Rules, which confers power on the High Court, exercising appellate jurisdiction, to grant a temporary injunction provided the procedure for instituting the appeal has been complied with. The Applicant had filed a Memorandum of Appeal in accordance with Order 42, so the threshold jurisdictional requirement was met and the court could consider the merits of the injunction.

p. 3
02

Whether the Applicant established a prima facie case with an arguable appeal

Holding

Yes. The Applicant demonstrated a protectable interest in the suit property and an arguable appeal; the limitation issue was left for the hearing of the main appeal.

Reasoning

The Applicant attached a title confirming her interest; the deceased transferred the property to the Respondents through a power of attorney on the strength of a sale agreement payable in instalments, and the Respondents allegedly defaulted. Whether the suit was time-barred was an issue for the main appeal; at this interlocutory stage the court only needed to find the appeal arguable, which it did.

p. 5
03

Irreparable injury and balance of convenience

Holding

Disposing of the suit property would alter the subject matter, convolute the ownership wrangle and render the appeal nugatory; the balance of convenience favoured the Applicant.

Reasoning

The Applicant attached an Agreement for Sale between the Respondents and a third party evidencing an imminent sale. The court reasoned that if the appeal failed, the Respondents could still execute the Children's Court order, but if the appeal succeeded, the property would already have been transferred, complicating matters. Sections 1A and 1B of the Civil Procedure Act and Section 13(7)(a) of the ELC Act supported granting preservation orders.

p. 5
04

Whether misjoinder of the deceased's estate defeats the application

Holding

No. Misjoinder cannot defeat a suit by virtue of Order 1 Rule 9 of the Civil Procedure Rules, and the Applicant, holding a Grant of Letters of Administration, had locus standi.

Reasoning

The 2nd Respondent argued the Applicant had not sued as administrator of the estate. The court applied Order 1 Rule 9, which provides that misjoinder or non-joinder cannot defeat a suit, and noted the Applicant had attached the Grant of Letters of Administration Intestate issued on 29th August 2016, demonstrating her capacity to institute proceedings on behalf of the estate.

p. 6

Legal principles established

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  • The High Court, in exercise of its appellate jurisdiction, may grant a temporary injunction provided the procedure for instituting the appeal has been complied with.
  • An arguable appeal is one that is not necessarily bound to succeed but which ought to be argued fully before the court.

Court orders

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  1. 1.A temporary injunction issued restraining the Defendants/Respondents, whether by themselves, their agents and/or employees or whomsoever acting on their behalf, from transferring, selling, conveying, charging, leasing, attaching or in any way dealing with Plot No Title LR 12422/749 pending the hearing and determination of the appeal.
  2. 2.Costs of the application to abide the appeal.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Subordinate court (Environment and Land Court at first instance)
Not stated
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules; Sections 1A, 1B and 79G of the Civil Procedure Act; Section 13(7)(a) of the Environment and Land Court Act, 2011

Relief refused

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Costs of the application awarded to the Applicant as sought

The court instead ordered costs to abide the appeal rather than awarding them to the Applicant

p. 6

Costs

Costs of the application shall abide the appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

A temporary injunction is hereby issued restraining the Defendants /Respondents whether by themselves, their agents, and/or employees or whomsoever is acting on their behalf from transferring, selling, conveying, charging, leasing, attaching or in any way dealing with Plot No Title LR 12422/749 pending the hearing and determination of this appeal.
p. 6Final orders - interim injunction pending appeal
That costs of this application shall abide the appeal.
p. 6Costs
in an interlocutory injunction application the Applicant has to satisfy the triple requirements to a, establishes his case only at a prima facie level, b, demonstrates irreparable injury if a temporary injunction is not granted and c, ally any doubts as to b, by showing that the balance of convenience is in his favour.
p. 4Test for interim injunction (Nguruman principles)
In view of the foregoing, I find that the Appellant/Applicant has met the criteria for grant of orders of temporary injunction pending appeal.
p. 6Conclusion of the court
She evidently has the locus standi to institute the proceedings on behalf of the estate of the deceased.
p. 6Locus standi of administrator

Issues in the judgment

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minor

The names of the parties (especially the 1st Respondent) and the case number of the appeal do not appear in the provided text; parties are referred to only by role.

minor

The court refers to the Applicant interchangeably as 'Plaintiff' and 'Appellant/Applicant' although the matter is an appeal.

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, "Mary Njeri Waweru v Joseph Karanja Mbugua & Another (interim injunction pending appeal)", Case Analysis (2024). Not stated in the excerpt provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6703/eng@2024-07-12

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