[2012] KEHC 2448 (KLR)
The court found that the plaintiffs failed to establish a prima facie case because their agreement with the 1st defendant pertained to plot 555, not plot 934, and there was a dispute as to whether subdivision and allocation of plot 934 was part of the agreement. The property had already been transferred to the 2nd...
Source-derived case information.
- Citation
- [2012] KEHC 2448 (KLR)
- Parties
- Plaintiff: Ali Abdalla Kawinga; Plaintiff: Mary Salama Deche; Defendant: Mary Nyamvula Mwavita; Defendant: John Mugambi Anampiu
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Case 189 of 2011
- Procedural Posture
- Civil Case / Interlocutory Application (injunction)
- Outcome
- application dismissed
- Judges
- CW Meoli
- Legal Topics
- Injunctive Relief, Specific Performance, Land Sale Disputes, Innocent Purchaser, Breach of Contract
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ali Abdalla Kawinga
Plaintiff
Mary Salama Deche
Plaintiff
Mary Nyamvula Mwavita
Defendant
John Mugambi Anampiu
Defendant
Procedural Posture
Civil Case / Interlocutory Application (injunction)
Legal Issues
- 1 Whether the plaintiffs have established a prima facie case to warrant the grant of an interlocutory injunction restraining the defendants from dealing with land parcel LR KILIFI/KIJIPWA/934.
- 2 Whether damages would be an adequate remedy for the plaintiffs if the injunction is not granted.
- 3 Whether the balance of convenience lies in favour of granting or refusing the injunction.
Ratio Decidendi
The court found that the plaintiffs failed to establish a prima facie case because their agreement with the 1st defendant pertained to plot 555, not plot 934, and there was a dispute as to whether subdivision and allocation of plot 934 was part of the agreement. The property had already been transferred to the 2nd defendant, who appeared to be an innocent purchaser for value. The breach complained of had already occurred, and the plaintiffs delayed in bringing the application. The court held that damages would be an adequate remedy since the value of the plot was quantifiable and the plaintiffs had not taken possession or invested in the property. Consequently, the application for...
Court Disposition
application dismissed
Orders
- The plaintiffs' application for interlocutory injunction is dismissed with costs to the defendants.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA ATMALINDI
CIVIL CASE 189 OF 2011
ALI ABDALLA KAWINGA...................................................................................................................1ST PLAINTIFF
MARY SALAMA DECHE.....................................................................................................................2ND PLAINTIFF
VERSUS
MARY NYAMVULA MWAVITA.........................................................................................................1ST DEFENDANT
JOHN MUGAMBI ANAMPIU.........................................................................................................2ND DEFENDANT
RULING
1. Before me is the Plaintiff`s Notice of Motion filed on 16/12/11 seeking to restrain the Defendants from inter alia, further developing, utilizing or alienating land parcel No. LR KILIFI/KIJIPWA/934 pending the hearing of this suit. The application is supported by the affidavit of the 1st plaintiff.
2. In short the plaintiffs assert that in 2008 they purchased the said land parcel from the 1st Defendant and paid the agreed purchase price of Kshs.200,000/-. That in January 2011 the 1st Defendant purported to rescind the agreement and later transferred the suit property to the 2nd Defendant who is the present registered owner. The 2nd Defendant confirms the latter but asserts through his replying affidavit that he purchased the suit property from one SYLVIA FURAHA KATUNDA and takes issue with the Plaintiff`s agreement which he says was in respect of plot 555 and not number 934.
3. The parties agreed to dispose of the application through written submission, which I have perused alongside the affidavits of the parties applying the principles of Giella VS Cassman Brown & Co. Ltdto the facts of this case.
4. Regarding the issue of a prima facie case, the weakest link in the applicant`s case was that the agreement with the 1st Defendant was in respect of plot 555, which it turns out is a bigger plot out of which plot 934 which the Plaintiffs` lay a claim to was carved out of. There is obvious dispute as to whether subdivision was part of terms of the agreement with the Plaintiff and which portion was to go to them thereafter.
5. Secondly the breach complained of has already happened. Indeed the suit property is now registered in the name of the 2nd Defendant, who on the face of it was an innocent purchaser for value of Plot Number 934 and NOT 555. The Court would not be able to stop from happening, that which has already happened. I note too that over 2 years had lapsed since the original contract between the plaintiff and the 1st Defendant. It is not clear whether the agreement was given the necessary consents or why this delay occurred. Indeed the applicants received the notice of intention foresaid about a year before they came to court.
6. On the question of damages, the value of the plot is certainly quantifiable and damages would be an adequate remedy, there being no evidence that the Plaintiffs ever took possession of the suit property or invested in it.
7. The Plaintiff’s application has come too late and on the material before me cannot be granted. The same is dismissed with costs.
Delivered and signed in the presence of Mr Otara holding brief for Mr Kagwi for 1st and 2nd defendant, Plaintiff absent on 27th July, 2012. Court clerk – Evans
C. W. Meoli
JUDGE