[2007] KEHC 1662 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT KERICHO

CIVIL SUIT 61 OF 2007

ESTHER CHEPKIRUI MARITIM..................................PLAINTIFF

VERSUS

SIMEON KIPRUTO RUGUT.................................RESPONDENT

RULING

The plaintiff, Esther Chepkirui Maritim filed suit seeking a declaratory order of this court to nullify the agreement entered between herself and the defendant, Simeon Kipruto Rugut in respect of parcel No. LR. Kericho/Kaptebengwet/7 (herein after referred to as the suit land). Contemporaneous with filing the suit, the plaintiff filed an application under Order XXXIX rules 1, 2, 3 & 9 of the Civil Procedure Rules and Sections 3 & 3 (a) of the Civil Procedure Act seeking to restrain the defendant from dealing with the suit land or interfering with her quiet possession of the said parcel of land pending the hearing and determination of the suit. The plaintiff further prayed for an order to compel the defendant to surrender to her the title deed in respect of the suit land. The application is grounded on the reasons stated on the face of the application and the supporting affidavit of the plaintiff.

The application is opposed. The defendant filed a replying affidavit in opposition to the application. The defendant also filed a defence and counter claim to the plaintiff’s suit. The defendant sought an order of this court for specific performance of the agreement entered between himself and the plaintiff. The defendant deponed that the plaintiff had maliciously refused to conclude the agreement yet he was willing to pay the balance of the purchase consideration. He deponed that the plaintiff had even signed the application for an application for the consent of the Land Control Board. He deponed that he was willing to conclude the agreement by paying the balance of the purchase consideration.

He urged the court to dismiss the application with costs.

At the hearing of the application, Mr. Matwere reiterated the contents of the application and the supporting affidavit. He submitted that the plaintiff and the defendant had entered into an agreement whereby the plaintiff was to sell to the defendant the suit land at an agreed purchase consideration. He submitted that it was a fundamental term of the agreement that the defendant was to pay the said purchase consideration within a certain specific period. Contrary to the said agreement, the defendant failed to pay the purchase consideration within the period stipulated. The plaintiff had therefore made a decision to rescind the contract and had in fact refunded part of the purchase consideration paid by the defendant to the defendant’s advocate. He submitted that the defendant had refused to accept the refund of the said part of the purchase consideration and had instead insisted that part of the suit land equivalent to the value of the amount paid be excised. Mr. Matwere submitted that the plaintiff was apprehensive the defendant would use the conveyancing documents which had been handed over to him by the plaintiff to transfer the suit land to his name. He submitted that the consent of the Land Control Board had not been secured in respect of the said agreement for the purchase of land between the plaintiff and the defendant. He argued that the only remedy available to the defendant was a refund of the purchase consideration which has already been deposited with the advocates of the defendant. He urged the court to allow the application with costs.

Mr. Orina for the defendant opposed the application. He reiterated the contents of the replying affidavit. He submitted that the plaintiff had not demonstrated sufficient cause to warrant the orders sought to be granted. He submitted that the plaintiff was seeking to nullify a validly entered agreement between herself and the defendant. He maintained that the defendant had abided by the terms of the agreement. He argued that if the defendant was in breach of the agreement, it was upon the plaintiff to give notice of default before purporting to rescind the contract. He submitted that the plaintiff was being incited to rescind the agreement by another purchaser who came into the scene and purported to purchase the suit land after the said agreement between the plaintiff and the defendant had been executed. He submitted that the plaintiff had not refunded the defendant the full purchase consideration paid. He maintained that there was a valid application for consent of the Land Control Board which was submitted but had not been granted. He submitted that the defendant was willing to conclude the contract for the purchase of the suit land. He reiterated that the defendant was willing to be given land equivalent to the amount that he has already paid. He submitted that the plaintiff had not established a prima facie case to enable this court grant her the order of injunction sought. He urged the court to dismiss the application with costs.

I have carefully considered the rival submissions made by the parties to this application. I have also read the pleadings filed by the parties in support of their rival positions in this suit. The issue for determination by this court is whether the plaintiff established a case to enable this court grant the order of interlocutory injunction sought. The principles to be considered by this court in determining whether or not to grant the order of injunction sought are well settled. The applicant must establish that he had a prima facie case with a likelihood of success. He must also establish that he would suffer irreparable damage not likely to be compensated by an award of damages if the injunction is refused. In the event of doubt, the court will determine the application on a balance of convenience. (See Giella vs. Cassman Brown [1973] EA. 358)

In the present application, certain facts are not in dispute. It is not disputed that the plaintiff and the defendant entered into an agreement for the purchase of the suit land. The agreed purchase consideration was KShs.1,280,000/=. The defendant paid a sum of KShs.400,000/= on the signing of the agreement. He was required to pay the balance of the purchase consideration by the 30th November 2006. It is apparent that the defendant failed to pay the said balance of the purchase consideration. The plaintiff rescinded the contract and refunded the said sum of KShs.400,000/= to the advocates for the defendant. The plaintiff paid a further sum of KShs.25,000/= being the expenses she assessed as having been expended by the defendant in fencing a portion of the suit land. The defendant did not accept the said refund and instead insisted that the plaintiff transfers to him a portion of the suit land equivalent to the amount already paid as part of the purchase consideration. It is not disputed that the suit land is agricultural land. The consent of the requisite Land Control Board has not been secured. The period in which the said consent of the Land Control Board ought to have been secured has already expired. It is therefore evident that the only remedy available to the defendant is the refund of the purchase consideration, and if he feels aggrieved, he may sue the plaintiff for damages. The defendant seems to have recognized this fact as in his counter claim, he has sought an alternative prayer for damages for breach of contract, if his prayer for specific performance is disallowed.

Having evaluated the facts of this case, as can be gleaned from affidavit evidence and the submissions made, it is clear that the plaintiff has established a prima facie case that the defendant is not entitled to lay any claim on the suit land. The plaintiff has established that she refunded the purchase consideration which was paid to her by the defendant. It is therefore evident that the defendant’s claim on the suit land is tenuous. His chances of success in his counter claim for an order of specific performance is remote, to say the least. On the other hand, the plaintiff would suffer irreparable damage if the defendant prevents her from dealing with the suit land in the manner that she deems fit.

This court therefore grants the prayers sought by the plaintiff in her application. The defendant is restrained by means of an interlocutory injunction from entering, sub-dividing, developing, and remaining or in any manner whatsoever dealing with the suit parcel of land i.e. LR. No. Kericho/Kaptebengwet/7 pending the hearing and determination of this suit. The defendant is ordered to surrender to the plaintiff the title in respect of the suit land within 14 days from the date of the delivery of this ruling. The plaintiff shall have the costs of the application.

DATED at KERICHO this 7th day of NOVEMBER 2007

L. KIMARU

JUDGE