[2022] KEELC 2244 (KLR)
The court found that the applicant failed to establish a prima facie case with a probability of success, as it admitted to not having paid the full purchase price and failed to provide evidence of payment. The applicant also did not demonstrate that it would suffer irreparable loss that could not be compensated by...
Source-derived case information.
- Citation
- [2022] KEELC 2244 (KLR)
- Parties
- Plaintiff: Dannel Commercial Partners Limited; Defendant: Nancy Peresian; Defendant: Timothy Kores Lemeiruko; Defendant: Kajiado District Land Registrar; Defendant: Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E014 of 2020
- Procedural Posture
- Environment and Land Case / Ruling on Interlocutory Application for Injunction
- Outcome
- Application dismissed save for order compelling production of Green Card.
- Judges
- MN Gicheru
- Legal Topics
- Temporary Injunctions, Land Sale Disputes, Access to Information, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dannel Commercial Partners Limited
Plaintiff
Nancy Peresian
Defendant
Timothy Kores Lemeiruko
Defendant
Kajiado District Land Registrar
Defendant
Attorney General
Defendant
Procedural Posture
Environment and Land Case / Ruling on Interlocutory Application for Injunction
Legal Issues
- 1 Whether the applicant is entitled to a temporary injunction restraining the defendants from dealing with land parcel KJD/Kitengela/42740 pending determination of the suit.
- 2 Whether the applicant has established a prima facie case with a probability of success.
- 3 Whether the applicant stands to suffer irreparable loss not compensable by damages.
Ratio Decidendi
The court found that the applicant failed to establish a prima facie case with a probability of success, as it admitted to not having paid the full purchase price and failed to provide evidence of payment. The applicant also did not demonstrate that it would suffer irreparable loss that could not be compensated by damages, nor did it show that the balance of convenience favored it, as it was not in possession of the land. The application for injunction was brought under the wrong procedural rule (Order 51 instead of Order 40). However, the court held that the applicant was entitled to access information held by the state, specifically the Green Card for the suit land, under Article 35 of...
Court Disposition
Application dismissed save for order compelling production of Green Card.
Orders
- All prayers in the Notice of Motion dated 10/3/2021 are dismissed except prayer number 5.
- The third defendant is ordered to produce the Green Card for land parcel KJD/Kitengela/42740.
Full Case Text
Judgment text and source record
50 paragraphs
Dannel Commercial Partners Limited v Peresian & 3 others (Environment & Land Case E014 & E2 of 2020 (Consolidated)) [2022] KEELC 2244 (KLR) (5 May 2022) (Ruling)
Neutral citation: [2022] KEELC 2244 (KLR)
Republic of Kenya
In the Environment and Land Court at Kajiado
Environment & Land Case E014 & E2 of 2020 (Consolidated)
M N Gicheru, J
May 5, 2022
Between
Dannel Commercial Partners Limited
Plaintiff
and
Nancy Peresian
1st Defendant
Timothy Kores Lemeiruko
2nd Defendant
Kajiado District Land Registrar
3rd Defendant
Attorney General
4th Defendant
As consolidated with
Environment & Land Case E2 of 2020
Between
Dannel Commercial Partners Limited
Plaintiff
and
Nancy Peresian
1st Defendant
Timothy Kores Lemeiruko
2nd Defendant
Kajiado District Land Registrar
3rd Defendant
Attorney General
4th Defendant
Ruling
1. This ruling is on the Notice of Motion dated 10th March, 2021. It seeks a temporary injunction to restrain the first and second Defendants or anybody claiming through them from alienating, grabbing, interfering with, transferring or in any way dealing with land parcel number KJD/Kitengela/42740 pending the hearing and determination of the suit.
2. Other prayers are that the same Defendants give vacant possession of the suit land to the Plaintiff, the third Defendant be ordered to produce the Green Card for the suit parcel and to remove the caution registered against the land and that the OCS Kitengela police station do enforce compliance with the above orders.
3. The motion is brought under Order 51 Rule 1 Civil Procedure Rules, Sections 1A, 1B, 3 and 3A of the Civil Procedure Act and all enabling provisions of the law.
4. The application is supported by an affidavit sworn by Dan Awendo, the of the Plaintiff’s Director in which he says that he bought the suit land by making a part payment of Kshs.14 Million out of the agreed purchase price of Kshs. 31, Million.
5. The balance of Kshs. 17 million was to be paid by 30th May, 2013. When he went to subdivide the land in March, 2013, he was denied entry on the ground that the land had not been sold to him.
6. The application by the Applicant is opposed by the Respondents who have sworn a replying affidavit dated 2/8/2021. In brief, the Respondents deny that the suit land was ever sold to the Applicant. Instead, one Job Kariuki, a son in law to the deceased fraudulently acquired the title documents to the land. He was arrested and prosecuted in a criminal case.
7. Counsel for the parties filed written submissions on 4/3/2022 and 5/4/2022.
8. I have carefully considered the Application in its entirety including the affidavits, the grounds and the submissions and I make the following findings;
9. Firstly, the Applicant has not established a prima facie case with a probability of success. He has on his own admission said that he did not pay the full purchase price. He only paid Kshs. 14 Million instead of Kshs. 31 Million. He has not annexed evidence to show that he paid the 14 million that he says he paid to the late mother of the first and second Defendants.
10. Secondly, the Applicant has not proved that he stands to suffer irreparable loss that cannot be adequately compensated by an award of damages.
11. Finally, he has not proved that the balance of convenience tilts in his favour because he is not in possession of the land. The principles prerequisite to the granting of an injunction as per the case of Giella v Cassman Brown (1973) E A 358 have not been met as far the grant of an injunction is concerned.
12. It is also noteworthy that the application has not been brought under the correct provision of law namely Order 40 Civil Procedure Rules. It has been brought under Order 51 which deals with ordinary applications.
13. The above notwithstanding, I find that one of the prayers in the Notice of Motion dated 10/3/2021 is merited, namely prayer 5.
14. Under Article 35 of the Constitution, every citizen has the right of access to information held by the state. The information that the Plaintiff seeks is crucial to his case and it is its constitutional right to access this information.
15. For the above stated reasons, I dismiss the prayers in the Notice of Motion save for prayer number 5.
DATED SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 5TH DAY OF MAY, 2022. M.N. GICHERUJUDGE