ELIZABETH NTHENYA WAMBUA V PHILIP WAMBUA MASILA & 3 OTHERS [2012] KEHC 2031 (KLR)
- Court
- High Court of Kenya
- Case number
- 2031
- Citation
- [2012] KEHC 2031 (KLR)
- Decided
- 8 October 2012
The court finds that the plaintiff has not established a strong prima facie case for an interlocutory prohibitive injunction against the 2nd defendant, the interests of the chargee bank, or the Commissioner of Lands.
Facts
The plaintiff, Elizabeth Nthenya Wambua, is the wife of the 1st defendant, Philip Wambua Masila. They jointly purchased a residential house in Nairobi under a mortgage from East African Building Society. The property is a matrimonial home where the plaintiff and her three children live. The 1st defendant claims the property belongs solely to him and denies any fraud or forgery.
Issues
- Whether the plaintiff has a prima facie case for an interlocutory prohibitive injunction against the 2nd defendant to restrain him from interfering with the property.
- Whether the plaintiff's claim has legal foundation.
- Whether the plaintiff's apprehension about the 2nd defendant's actions is justified.
Reasoning
The court considers the principles governing the grant of interlocutory injunctions and finds that the plaintiff's case lacks merit. The property has a determinable value, and the plaintiff can be compensated in damages if she prevails in the declaration for ownership.
Outcome
The plaintiff's application is dismissed.
Orders
- Interlocutory prohibitive injunction against the 2nd defendant is denied.
- Order against the Commissioner of Lands to prohibit any further dealings on the property is denied.
Remedies
- Damages if the plaintiff prevails in the declaration for ownership of a share of the property.
Authorities cited
Legislation (2)
- Registered Land Act (now repealed)
- Marriage Act
Cases cited (3)
- Giella Vs Cassman Brown and Company Limited
- Kenya Hotels Limited Vs Kenya Commercial Bank and another
- Public Trustee Vs Nicholas Kabucho Murimi
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