BRIEF FACTS
The Applicant filed the instant application dated 4th June, 2024 seeking the following orders:
1. Spent.
2. Spent.
3. THAT pending the hearing and determination of this Appeal, an order of injunction be and is hereby issued restraining the Respondents whether by themselves, their employees, servants and/or assigns and/or any person whatsoever acting on their behalf and/or under their mandate and/or instructions from advertising for sale, offering for sale, selling, auction, alienating, taking possession of, leasing, transferring, charging or otherwise in any manner whatsoever interfering with land parcel number NAKURU MUNICIPALITY BLOCK 25/528.
4. THAT the costs of this application be borne by the Respondents.
The Application was based on grounds set out and supported by the Affidavit of PAULINE NYAMOITA OCHARO the Appellant/Applicant herein sworn on 4th June, 2024. The Applicant stated that she is the legal owner of the suit property parcel number NAKURU MUNICIPALITY BLOCK 25/528. She stated that she has lived on the suit land for over 25 years and that on 16th June, 2023 her daughter was served with a notification for an intended auction sale of the suit land. She further stated that upon investigation, she found that her son, the 3rd Respondent had secured a loan with the 1st Respondent and offered her home as security without her consent. She also stated that the 3rd Respondent had fraudulently and secretly transferred the suit property to himself and obtained the said loan facility from the 1st Respondent. She added that the suit land was scheduled for sale on 10th July, 2023.
The Applicant further stated that on 6th July, 2023 she filed a suit Nakuru CM ELC NO. E136 OF 2023 challenging the intended sale where injunctive orders were issued pending the determination of the application dated 6th July, 2023. She stated that the application was dismissed on 19th December, 2023 and being dissatisfied with the said ruling, filed the instant appeal. The Applicant also stated that the appeal has huge chances of success and that should the orders not issue, she stands to suffer irreparable harm. She further stated that the Respondents have already issued an auction notice and if the illegal sale proceeds, she will end up losing her home. In conclusion, he urged the court to exercise its discretion and allow the application.
Response
The Respondents did not file any response.
Submissions
None of the parties filed their submissions.
Analysis and Determination
This court has carefully considered the application and the main issue for determination is whether a temporary injunction pending appeal should issue.
While considering a similar application in the case of Patricia Njeri & 3 Others V National Museum of Kenya [2004] eKLR, Justice Visram J (as he then was), spelt out the principles to be followed in considering an application for a temporary injunction pending appeal. He stated that the power of the court to grant any order of temporary injunction was discretionary and ought to be exercised judicially.
It is noteworthy that the Magistrate’s Court was yet to pronounce itself on the merits of the Applicant’s case as the main suit was yet to be heard. This court is equally alive to the fact that it is yet to hear and determine the appeal lodged before it. In the instant case, the Applicant has sought to stay the auction of the suit property pending the hearing and determination of the appeal. This court ought to therefore establish whether the Applicant has made out a case for grant of temporary injunction to retrain the 1st Respondents from exercising its statutory power of sale for the amount owed to it.
The three principles to be considered when granting an order of temporary injunction were laid down in the famous case of Giella V Cassman Brown [1973] EA 358. Further, the Court of Appeal in Nguruman Ltd vs Jan Bonde Nielsen & 2 others (2014), while upholding the 3 conditions pronounced in the Giella case stated as follows:
“the 3 conditions and stages are to be applied as separate distinct and logical hurdles which an applicant is expected to surmount sequentially.”
Going to the first principle of whether the Applicant has established a prima facie case, it was the Applicant’s case that she purchased the suit property from one Margaret Wanjiru Njuki. It is not in dispute that the Applicant availed a copy of the Certificate of Lease dated 5th December, 2000. It is this court’s view that with the evidence of the title in the Applicant’s name, the same is sufficient proof that she has established a prima facie case.
The second issue is whether the Applicant would suffer irreparable loss if the orders sought are not granted. The Applicant contends that she will end up losing her home from the pending auction if the temporary orders are not granted The Court of Appeal in the case of Charles Wahome Gethi vs. Angela Wairimu Gethi [2008] eKLR held as follows:
“... it is not enough for the Applicants to say that they live or reside on the suit land and that they will suffer substantial loss. The Applicants must go further and show the substantial loss that the Applicants stand to suffer if the Respondent execute the decree in this suit against them.”
This court has perused the court records and it is not in dispute that the 2nd Defendant already issued a notice for the intended auction touching on the suit property. It is also not in dispute that the same has also been served. In view of the above, it is this court’s opinion that the Applicant indeed stands to suffer substantial loss if the suit property is auctioned.
The upshot of the above is that the application dated 4th June, 2024 is merited. Consequently, the same is allowed as follows:
a) The Respondents are hereby restrained whether by themselves, their employees, servants and/or assigns and/or any person whatsoever acting on their behalf and/or under their mandate and/or instructions from advertising for sale, offering for sale, selling, auction, alienating, taking possession of, leasing, transferring, charging or otherwise in any manner whatsoever interfering with land parcel number NAKURU MUNICIPALITY BLOCK 25/528
b) Each party to bear the costs of the application.
The Applicant filed the instant application dated 4th June, 2024 seeking the following orders:
1. Spent.
2. Spent.
3. THAT pending the hearing and determination of this Appeal, an order of injunction be and is hereby issued restraining the Respondents whether by themselves, their employees, servants and/or assigns and/or any person whatsoever acting on their behalf and/or under their mandate and/or instructions from advertising for sale, offering for sale, selling, auction, alienating, taking possession of, leasing, transferring, charging or otherwise in any manner whatsoever interfering with land parcel number NAKURU MUNICIPALITY BLOCK 25/528.
4. THAT the costs of this application be borne by the Respondents.
The Application was based on grounds set out and supported by the Affidavit of PAULINE NYAMOITA OCHARO the Appellant/Applicant herein sworn on 4th June, 2024. The Applicant stated that she is the legal owner of the suit property parcel number NAKURU MUNICIPALITY BLOCK 25/528. She stated that she has lived on the suit land for over 25 years and that on 16th June, 2023 her daughter was served with a notification for an intended auction sale of the suit land. She further stated that upon investigation, she found that her son, the 3rd Respondent had secured a loan with the 1st Respondent and offered her home as security without her consent. She also stated that the 3rd Respondent had fraudulently and secretly transferred the suit property to himself and obtained the said loan facility from the 1st Respondent. She added that the suit land was scheduled for sale on 10th July, 2023.
The Applicant further stated that on 6th July, 2023 she filed a suit Nakuru CM ELC NO. E136 OF 2023 challenging the intended sale where injunctive orders were issued pending the determination of the application dated 6th July, 2023. She stated that the application was dismissed on 19th December, 2023 and being dissatisfied with the said ruling, filed the instant appeal. The Applicant also stated that the appeal has huge chances of success and that should the orders not issue, she stands to suffer irreparable harm. She further stated that the Respondents have already issued an auction notice and if the illegal sale proceeds, she will end up losing her home. In conclusion, he urged the court to exercise its discretion and allow the application.
Response
The Respondents did not file any response.
Submissions
None of the parties filed their submissions.
Analysis and Determination
This court has carefully considered the application and the main issue for determination is whether a temporary injunction pending appeal should issue.
While considering a similar application in the case of Patricia Njeri & 3 Others V National Museum of Kenya [2004] eKLR, Justice Visram J (as he then was), spelt out the principles to be followed in considering an application for a temporary injunction pending appeal. He stated that the power of the court to grant any order of temporary injunction was discretionary and ought to be exercised judicially.
It is noteworthy that the Magistrate’s Court was yet to pronounce itself on the merits of the Applicant’s case as the main suit was yet to be heard. This court is equally alive to the fact that it is yet to hear and determine the appeal lodged before it. In the instant case, the Applicant has sought to stay the auction of the suit property pending the hearing and determination of the appeal. This court ought to therefore establish whether the Applicant has made out a case for grant of temporary injunction to retrain the 1st Respondents from exercising its statutory power of sale for the amount owed to it.
The three principles to be considered when granting an order of temporary injunction were laid down in the famous case of Giella V Cassman Brown [1973] EA 358. Further, the Court of Appeal in Nguruman Ltd vs Jan Bonde Nielsen & 2 others (2014), while upholding the 3 conditions pronounced in the Giella case stated as follows:
“the 3 conditions and stages are to be applied as separate distinct and logical hurdles which an applicant is expected to surmount sequentially.”
Going to the first principle of whether the Applicant has established a prima facie case, it was the Applicant’s case that she purchased the suit property from one Margaret Wanjiru Njuki. It is not in dispute that the Applicant availed a copy of the Certificate of Lease dated 5th December, 2000. It is this court’s view that with the evidence of the title in the Applicant’s name, the same is sufficient proof that she has established a prima facie case.
The second issue is whether the Applicant would suffer irreparable loss if the orders sought are not granted. The Applicant contends that she will end up losing her home from the pending auction if the temporary orders are not granted The Court of Appeal in the case of Charles Wahome Gethi vs. Angela Wairimu Gethi [2008] eKLR held as follows:
“... it is not enough for the Applicants to say that they live or reside on the suit land and that they will suffer substantial loss. The Applicants must go further and show the substantial loss that the Applicants stand to suffer if the Respondent execute the decree in this suit against them.”
This court has perused the court records and it is not in dispute that the 2nd Defendant already issued a notice for the intended auction touching on the suit property. It is also not in dispute that the same has also been served. In view of the above, it is this court’s opinion that the Applicant indeed stands to suffer substantial loss if the suit property is auctioned.
The upshot of the above is that the application dated 4th June, 2024 is merited. Consequently, the same is allowed as follows:
a) The Respondents are hereby restrained whether by themselves, their employees, servants and/or assigns and/or any person whatsoever acting on their behalf and/or under their mandate and/or instructions from advertising for sale, offering for sale, selling, auction, alienating, taking possession of, leasing, transferring, charging or otherwise in any manner whatsoever interfering with land parcel number NAKURU MUNICIPALITY BLOCK 25/528
b) Each party to bear the costs of the application.