[2018] KEELC 4094 (KLR)
The court found that while the defendant had taken possession of the land after execution of the agreement, the agreement itself contained mechanisms for addressing damages in the event of breach. The court determined that the plaintiff would not suffer irreparable harm that could not be compensated by damages if...
Source-derived case information.
- Citation
- [2018] KEELC 4094 (KLR)
- Parties
- Plaintiff: Anne Wambui Wanjiru (suing as the legal representative of the estate of Patrick Maina Kimani); Defendant: Selina Nabangala Malaba
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 155 of 2017
- Procedural Posture
- Land Case / Ruling on Interlocutory Injunction Application
- Outcome
- Application for temporary injunction dismissed in part; limited injunctive relief granted.
- Judges
- FM Njoroge
- Legal Topics
- Sale of Land, Specific Performance, Injunctive Relief, Breach of Contract
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Anne Wambui Wanjiru (suing as the legal representative of the estate of Patrick Maina Kimani)
Plaintiff
Selina Nabangala Malaba
Defendant
Procedural Posture
Land Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiff is entitled to a temporary injunction restraining the defendant from dealing with the suit land pending determination of the suit.
- 2 Whether the defendant's continued occupation and development of the land without full payment of the purchase price warrants interlocutory relief.
- 3 Whether damages would be an adequate remedy for the plaintiff if the injunction is not granted.
Ratio Decidendi
The court found that while the defendant had taken possession of the land after execution of the agreement, the agreement itself contained mechanisms for addressing damages in the event of breach. The court determined that the plaintiff would not suffer irreparable harm that could not be compensated by damages if the injunction was not granted. Granting the orders sought would effectively amount to an eviction at an interlocutory stage, which is improper since eviction is a final remedy sought in the main suit. Therefore, the court declined to grant the temporary injunction as prayed but restrained the defendant from further development or acts of waste on the suit land pending the...
Court Disposition
Application for temporary injunction dismissed in part; limited injunctive relief granted.
Orders
- The defendant shall not conduct any further development on the suit land or perform such acts as may cause waste until the hearing and determination of the suit.
- Costs in the cause.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KITALE
LAND CASE NO. 155 OF 2017
ANNE WAMBUI WANJIRU(suing as the legal
representativeof the estate ofPATRICK
MAINA KIMANI)..........................................PLAINTIFF
VERSUS
SELINA NABANGALA MALABA............DEFENDANT
R U L I N G
1. The application dated 26/9/2017 seeks orders that the defendant and her agents be restrained by a temporary injunction from occupying, constructing, developing, wasting and or further developing or in any other way dealing with the 1 acre of land on Kobos Farm Group A1 belonging to the plaintiff pending the hearing and determination of this suit.
2. The plaintiff’s ground in that application are that she inherited the land from her husband, and in 2016, she entered into a sale agreement with the defendant for sale of one acre and the defendant has failed to honour the agreement despite having been granted possession of the land. The defendant is said to be erecting structures on the suit property and she has prevented the plaintiff from utilizing her land.
3. According to the plaintiff’s supporting affidavit the purchase price was Kshs.950,000/= and the defendant only made a part payment of Kshs.300,000/= and another one of Kshs.40,000/= on separate occasions, leaving a balance of Kshs.610,000/= outstanding.
4. The plaintiff avers that it was a term of the agreement that any party in default of any terms of the agreement would compensate the aggrieved party by paying double the amount. She refers to clause 8 of the agreement exhibited in the supporting affidavit. The plaintiff avers that she has demanded the outstanding amount or vacant possession from the defendant in vain hence the suit. She avers that it is unfair for the defendant to continue occupying the land while withholding payment of the balance of purchase price. She now seeks to recover her land and have the defendant evicted.
5. In reply the defendant swore and filed an affidavit dated 13/12/2017. Her defence to the application is principally that after having agreed in a purchase price of Kshs.800,000/= for the suit land the price was changed to Kshs.950,000/= without her knowledge and that she signed the agreement based on a misrepresentation concerning the purchase price. She also states that she expected succession formalities regarding the deceased former owner’s estate to be completed before formal transfer of the land to her, and the plaintiff breached the undertaking to facilitate the transfer. She therefore acknowledges to having withheld the balance of the purchase price out of fear of losing her hard earned money and the land. Her breach, she says, was in response to the plaintiff’s breach. She avers that the plaintiff has unclean hands and there is no risk of the suit land being wasted or any irreparable injury which cannot be remedied by an award of damages. She states she would be rendered homeless if the orders sought by the plaintiff are granted.
6. On her part the plaintiff counters the “an eye for an eye” statement by the defendant by stating that it is “common law practice that the transfer documents can only be effected upon payment of full purchase price and not as alleged by the respondent”.
7. In my view possession was taken by the defendant after the execution of the agreement by the defendant. There are also mechanisms inbuilt into agreement which address the issue of damages for breach. I do not see any requirement for repossession, though that could well be a remedy, in that agreement. The defendant is said to have her residence on the suit land and in my view she may be disadvantaged by an eviction order at this stage. I am of the view that the plaintiff would not suffer any such damage as would not be compensated for by way of damages if the orders sought do not issue.
Further the orders sought in the application, though couched in another form may constructively lead to eviction of the defendant at an interlocutory stage while that eviction is also a final order sought in the plaint amongst others. I do not find it proper to grant the prayers as prayed in the application. However, I order that the defendant shall not conduct any further development on the suit land or perform such acts as may cause waste until the hearing and determination of the suit herein. Costs in the cause.
Dated, signed and delivered at Kitale on this 27th day of February, 2018.
MWANGI NJOROGE
JUDGE
27/2/2018
Coram:
Before - Mwangi Njoroge, Judge
Court Assistant - Picoty/Collins
Mr. Teti for Ngugi for Plaintiff/Applicant
Ms. Mengich (absent) for Defendant
COURT
Ruling read in open Court in the presence of Counsel for the Plaintiff.
MWANGI NJOROGE
JUDGE
27/2/2018