REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

CIVIL APPEAL  NO. 85 OF 2019

KENYA WOMEN FINANCE MICRO FINANCE PLC....APPELLANT

VERSUS

AGNES THIRINDI SAMMY....................................1ST RESPONDENT

CHARLES MUTUMA..............................................2ND RESPONDENT

JUDGMENT

By an application dated 14^th day of May 2019 the 1^st Respondent/Plaintiff in Maua CMC ELC C.No. 82 of 2019 sought to restrain the Appellant itself, agents, employees or any other person acting  at its behest from entering, auctioning, selling, dealings, trespassing over any other manner interfering with LR No. Amwathi/Maua/3058 pending hearing and determination of this suit.

The application was opposed vide Replying affidavit sworn on 29^th May 2019 by Jeremiah Kanu Muriithi the  Credit Risk Manager for the Appellant in Mount Kenya Region.

The Application was canvassed by way of written submissions which the trial magistrate considered and delivered a ruling on 24^th June 2019 granting an order of temporary injuction which was to lapse 6 months from 24.6.2019.

Being aggrieved by the ruling of the trial magistrate the Appellant filed the appeal herein on  (11) grounds set out in the memorandum of Appeal.

The Appeal herein was canvassed by way written submissions.  The duty of this court is to re-look the evidence on record in the trial court and the independently consider whether the ruling of the trial magistrate should be upheld or set aside.

Having considered the Ruling of the trial Magistrate and the application and submissions in the Lower court as well as the submissions in support and against the appeal herein. This court   is of the view that the trial magistrate did not properly apply the principles of injunction as ennuated in the land Mark case if Giella vs Casman Brown [1973] EA for reasons the Respondent is not the Registered owner of the suit property and that her remedy lay in clause 7 of the agreement for sale of land annextures GTS -1-it was therefore wrong to restrain the Appellant from exercising  statutory power of sale in the circumstances.  The trial  Magistrate issued temporary injuctions orders  to last for 6 months meaning that by 24^th day of January 2020 the orders will have lapsed but didn’t say why that condition was put.

The appeal herein  succeeds.  However, each party will bear their own costs.

HON A. ONG’INJO

JUDGE

RULING  DELIVERED, DATED AND SIGNED IN COURT  ON  16^TH DAY OF JANUARY   2020.

In the presence of :

C/A:  Kinoti

Appellant: Mr Kimaita Advocate

1^st Respondent:  M/s Kimathi & Mutembei Advocate – No appearance

2^nd Respondent:

HON A. ONG’INJO

JUDGE