[2012] KEHC 2615 (KLR)
The application was dismissed because the applicant failed to demonstrate that the conditions precedent to the sale agreement—acquisition of the allotment letter, consent of the Land Control Board, and payment of the balance of the purchase price—had been fulfilled. The letter of offer did not confer ownership, and...
Source-derived case information.
- Citation
- [2012] KEHC 2615 (KLR)
- Parties
- Plaintiff: Albert Muriuki Karia; Respondent: Said Omar Abdallah
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 84 of 2011
- Procedural Posture
- Civil Appeal / Ruling on Interlocutory Application
- Outcome
- application dismissed
- Judges
- CW Meoli
- Legal Topics
- Interlocutory Injunctions, Temporary Inhibition, Land Title Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Albert Muriuki Karia
Plaintiff
Said Omar Abdallah
Respondent
Procedural Posture
Civil Appeal / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the applicant is entitled to an order restraining the defendant from disposing or interfering with LR LAMU/LAKE KENYATTA 11/599 pending determination of the suit.
- 2 Whether the court can compel the District Land Registrar, Lamu District, to register a temporary inhibition on the suit property.
Ratio Decidendi
The application was dismissed because the applicant failed to demonstrate that the conditions precedent to the sale agreement—acquisition of the allotment letter, consent of the Land Control Board, and payment of the balance of the purchase price—had been fulfilled. The letter of offer did not confer ownership, and there was no evidence of acceptance or delivery of the letter to the applicant. Additionally, the District Land Registrar was not a party to the suit, and therefore, no orders could be issued against him. The absence of these critical elements meant the applicant had not established a prima facie case for the grant of interlocutory relief.
Court Disposition
application dismissed
Orders
- The application dated 1st July, 2011 is dismissed.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA ATMALINDI
CIVIL APPEAL 84 OF 2011
ALBERT MURIUKI KARIA …………….……………….PLAINTIFF
VERSUS
SAID OMAR ABDALLAH ……….………………….RESPONDENT
R U L I N G
1. The application filed on 1st July, 2011 proceeded unopposed as the respondents did not file a replying affidavit or attend the hearing. For purposes of this ruling the court is concerned with the 2nd and 3rd prayers, the former seeking to restrain the defendant from “disposing and/or further interfering in any manner with LR LAMU/LAKE KENYATTA 11/599 until further orders of this suit “Prayer 3 seeks orders to compel the District Land Registrar Lamu District, to register a temporary inhibition in respect of the said land title.
2. The application is expressed to be brought under Order 40 rule 1-4 of the Civil Procedure Rules and Section 28 of the Registered Land Act and is supported by the affidavit of the applicant.
3. Having considered the application as presented, I am of the considered view that it cannot succeed for two reasons:
1. The sale agreement dated 13th October, 2003 looked to future completion, upon acquisition of the allotment letter and the consent of the Land Control Board and payment of the balance of the purchase price. There is no evidence that these events occurred. The letter of offer AMK 2 now attached to the applicant’s affidavit is just that, it does not convey ownership. Besides it is not clear whether the offer was accepted by the defendant and the letter even handed over to the applicant, if at all, in light of the terms of the sale agreement.
2. The District Land Registrar, Lamu is not a party to this suit and no orders can issue against him.
The application is therefore dismissed.
Delivered and signed at Malindi this 26thday of July, 2012 in the presence of: Court clerk - Evans
C. W. Meoli
JUDGE