[2014] KEHC 6898 (KLR)

COPY

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL CASE NO. 422 OF 2010

FEISAL AWADH IDAH .............................................................. PLAINTIFF

- V E R S U S -

WILLIAM KAMITI GATHINJI ................................................ DEFENDANT

RULING

[1] The applicant herein applies for an injunction against the respondent his agents, servants from transferring, disposing, alienating and or in any manner dealing with subdivision number 532 Section III Mainland North pending the hearing and determination of this case. He supports his application by his affidavit sworn on 19th November, 2012.

The basis of his application is that on 6th May, 2008 he sold land parcel subdivision number 352 section 111 mainland north to the defendant for Kshs 4. 5. million that the respondent paid a deposit and did not pay the balance within 30 days of 6th May, 2008 and that the plaintiff rescinded the contract pursuant to the agreement for sale entered into by both parties.

[2] He further depones that he went and agreed with the advocates for the purchaser to have the sale of the purchaser rescinded and the property be transferred to a limited liability company called Milfan Developers Ltd and to have the suit land subdivided into several plots which were to be sold for Khs. 550,000 each. The transfer was done to the defendant herein on 8th September, 2008. Thereafter a transfer was also done to Milfan Developers on 12th November 2009. That a report was made to the police on these transactions by M/s. Omondi Waweru & Co. Advocates who thereafter cancelled the Registration to M/s. Milfan Developers Co. Limited. Copies of the title with those entries are attached to the application.

The applicant avers that he has been told by Marko Mulinge and Maneno Jule that surveyors and buyers have been seen on the said parcel of land conducting survey and physical search without his knowledge.

[3] Messrs. Aboubakar, Mwanakitina & Co. filed submissions to support their clients claim. They basically relied on the Agreement for sale and argued that the defendant was in actual breach thereof, and that the loss could not be compensated by money and that the balance of convenience favoured the applicants. They relied on various authorities cited by them therein.

Maranga Maosa & Associates for the respondents opposed the application. They argued that the applicants illegally and wrongfully held himself out as the true owner of the suit premises. They argued that the applicant became the true owner on 7th August 2008. That he could not have entered in to a sale agreement with the plaintiff as vendor on 16th May, 2008 and that he was guilty of misrepresentation.

[4] Further that the sale agreement entered therein, was legally incapable of completion as contemplated for the reason of the applicant not being the owner of the suit property thereof. The respondent through his counsel aforesaid alleges that the applicant was guilty of fraud and conspiracy with the defendants advocates M/s. Omondi Waweru & Co. in transferring the suit property to M/s. Milfan Developers thereof without the plaintiff having executed a transfer. That the cancellation of such transfer to Milfan Developers was done through the intervention of the police. That the said transfer to Milfan Developers was with the consent of the applicant, the subdivision agreed with Omondi Waweru & Co. was done with the consent of the applicant and that therefore, the applicants hands are unclean and not deserving of equitable remedy of injunction orders.

That this suit has no merit as the plaintiffs advocates acknowledged the purchase price without reservations on 24th November, 2009 and original documents were released to the defendants. The respondent argues that the case falls short of the standards required in the celebrated case of Geilla v Cassman Brown.

[5] I have considered the arguments as set out by the applicant and the respondents. It is quite obvious that there are several triable issues here. Indeed these issues were set out by Nzioka J in her ruling of 1st December, 2011 namely whether;

i) There is a valid sale agreement between the parties.

ii) Whether the contract between the parties has or was rescinded and/or cancelled.

iii) whether consideration passed to the vendor

iv) whether transfer of title to purchaser was lawfully done.

v) whether there was breach of contract by non- performance or otherwise.

All these issues would have to be canvassed at the trial. The only order that I find applicable here is an Order of status quo. The status quo pertaining at the ruling hereof, must be maintained,until this suit is heard in Court.

Dated and delivered in open Court at Mombasa this 21st day of February, 2014.

S.N. MUKUNYA

JUDGE

21. 4.2014

In the presence of:

Mr. Mwanakitina Advocate for the plaintiff

Mr. Maranga Maosa Advocate for the defendant

Mr. Wafula holding brief.