https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3762

Mwangi v Nyoike (Environment and Planning Appeal E006 of 2024) [2026] KEELC 3762 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEELC 3762 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Planning Appeal E006 of 2024 EK Wabwoto, J June 18, 2026 Between Francis Mwangi Appellant and Samson Nyoike Respondent (Being an appeal from the Ruling and Order of Hon. S.A. Opande, Principal Magistrate, delivered on 13th February 2024 in Milimani Chief Magistrate’s Court MCELC No. E426 of 2023) Judgment Introduction 1.This is an appeal from the Ruling and Order of Hon. S.A. Opande, Principal Magistrate, delivered on 13th February 2024 in Milimani Chief Magistrate’s Court MCELC No. E426 of 2023, Francis Njoroge Mwangi v Samson Nyoike, in which the trial court dismissed the Appellant’s Notice of Motion application dated 9th October 2023 seeking interlocutory injunctive orders, and directed that the costs of the application abide the outcome of the suit. 2.Aggrieved, the Appellant lodged the present appeal vide a Memorandum of Appeal dated 7th March 2024, advancing four grounds, namely that the learned trial Magistrate erred in law and in fact: (a) in dismissing the Appellant’s case and arriving at a decision against the weight of the evidence on record; (b) in failing to grant the injunctive orders sought in the application dated 9th October 2023; (c) in failing to consider the Appellant’s submissions notwithstanding that the Respondent did not file any submissions in the lower court; and (d) in disregarding the evidence adduced by the Appellant, thereby arriving at a wrong decision. Background 3.By a Sale Agreement dated 20th January 2015, the Respondent, then the registered proprietor of the leasehold property known as L.R. No. Nairobi/Block 105/8107 (the mother title), agreed to sell to the Appellant House No. 2, being one of four maisonette units erected on the mother title, at a consideration of Kshs. 4,600,000/=. 4.The purchase price was payable as follows: Kshs. 500,000/= on execution of the Agreement; Kshs. 2,000,000/= within sixty (60) days thereof; and the balance of Kshs. 2,100,000/= within ninety (90) days from the date the first instalment fell due. Clause 8 of the Agreement incorporated the Law Society of Kenya Conditions of Sale (1989 Edition), save to the extent varied by, or inconsistent with, the express terms of the Agreement. 5.It is common ground that the mother title had not, as at the date of the Agreement, been subdivided to create an individual title for House No. 2, and that subdivision and the issuance of individual titles to each of the four units was a process contemplated to attend completion. The Appellant’s case, as pleaded and deposed to in the lower court, is that the Respondent undertook to procure such subdivision, that the Appellant advanced a further sum of Kshs. 100,000/= to the Respondent in or about May 2015 specifically to expedite that process, and that the subdivision and issuance of an individual title for House No. 2 has never been undertaken to date. 6.The Appellant took possession of House No. 2 following execution of the Agreement and has remained in occupation since. It is common ground that, of the agreed purchase price, the Appellant has paid a cumulative sum of Kshs. 3,300,000/=, being approximately 72% of the purchase price, leaving an outstanding balance of Kshs. 1,300,000/=. 7.The record discloses a protracted exchange of correspondence between the parties’ respective advocates between December 2015 and February 2018. By a letter dated 2nd December 2015, advocates then acting for the Respondent demanded payment of the then outstanding balance, together with collection charges, failing which the Respondent threatened to cancel the Agreement, refund the sums paid less rent and a 20% penalty, and recover vacant possession. The Appellant’s advocates replied refuting the suggestion that the delay in completion was attributable to the Appellant, and asserting that the Respondent remained in default of his own obligation to procure subdivision and to avail completion documents, including the original title, executed transfer instruments, the requisite consents, and identification documents, in respect of House No. 2. 8.By a further letter dated 8th February 2018, the Appellant’s advocates reiterated that the Sale Agreement is silent on the precise sequence of events on completion, but maintained, by reference to the incorporated Law Society of Kenya Conditions of Sale, that completion documents fall to be exchanged for the balance of the purchase price, and that the Respondent’s continuing failure to procure subdivision and title for House No. 2 had precluded completion. 9.In or about 2023, the Appellant became aware that the Respondent was engaging prospective third-party purchasers with a view to disposing of House No. 2, notwithstanding that the property remained registered in the Respondent’s name and that the Appellant remained in occupation. This prompted the Appellant to institute the suit giving rise to the present appeal. The Suit, the Application and the Impugned Ruling 10.By a Plaint dated 24th October 2023, the Appellant instituted MCELC No. E426 of 2023 against the Respondent seeking, principally, an order of specific performance compelling the Respondent to avail completion documents in exchange for the balance of the purchase price, a permanent injunction restraining the Respondent from evicting, trespassing upon or selling House No. 2, general damages, and costs. 11.Contemporaneously, the Appellant filed the Notice of Motion application dated 9th October 2023, brought under Order 40 Rules 1 and 2 of the Civil Procedure Rules and Sections 1A and 3A of the Civil Procedure Act, seeking a temporary injunction restraining the Respondent, by himself, his agents, servants and/or representatives, from evicting, trespassing upon or selling House No. 2 pending the hearing and determination of the application, and thereafter pending the hearing and determination of the suit. 12.The application was opposed by way of the Respondent’s Replying Affidavit sworn on 17th October 2023. The Respondent did not deny entering into the Sale Agreement or receipt of Kshs. 3,300,000/=, but contended that the Appellant had defaulted on the agreed ninety-day completion timeline, that the obligation to procure subdivision was never tied to that timeline, that a caveat placed by a third party on the mother title had in any event impeded completion, and that, by reason of the Appellant’s continued occupation without completing payment, the arrangement had been converted into a tenancy under which the Appellant’s deposit had been wholly absorbed by accrued rent of Kshs. 35,000/= per month over a period the Respondent computed at 101 months. The Appellant filed a Further Affidavit sworn on 2nd November 2023 traversing these assertions, denying any tenancy, and reiterating that his obligation to settle the balance was, on the parties’ consistent course of dealing, contingent upon receipt of the completion documents. 13.Only the Appellant filed written submissions in the lower court. By its Ruling delivered on 13th February 2024, the trial court held that, on a plain reading of the Sale Agreement, payment of the purchase price was not expressed to be contingent or conditional upon the Respondent first availing title documents, that the Appellant was accordingly himself in breach of clause 3 of the Agreement, and that an injunction, being an equitable remedy, could not issue in favour of a party who was himself in breach. Applying Giella v Cassman Brown & Co. Ltd [1973] EA 358 and Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR, the trial court found that the Appellant had failed to establish a prima facie case and, on that basis alone, dismissed the application without proceeding to consider irreparable harm or the balance of convenience. The application was dismissed, with costs of the application to be in the cause. The Appeal and the Submissions 14.Dissatisfied, the Appellant filed the Memorandum of Appeal earlier referred to and, subsequently, Appellant’s Submissions dated 5th May 2026 together with a List of Authorities. The Appellant’s case on appeal, in summary, is that the trial court fell into error by conclusively determining, at the interlocutory stage and without the benefit of trial, that the Appellant alone was in breach of the Agreement; that the trial court failed to have regard to clause 8 of the Agreement and the incorporated Law Society of Kenya Conditions of Sale (1989 Edition), in particular Condition 6(1) thereof (Possession before Completion); that the trial court failed to take into account the Respondent’s own continuing failure to procure subdivision of the mother title and to avail an individual title for House No. 2; and that the trial court failed to appreciate that the Respondent’s assertion of a converted tenancy, accompanied by demands for accrued rent and threats of eviction and third-party sale, itself raised serious triable issues which could not properly be resolved against the Appellant at the interlocutory stage. 15.The Appellant relied, among other authorities, on the decision of the Court of Appeal in Westlands Residential Resort Limited v Kawakanja Limited & 2 Others, Civil Appeal No. 165 “A” of 2011 [2013] eKLR, for the proposition that whether an agreement for sale suffers from a defect rendering it unenforceable is ordinarily a matter for determination at trial, and that an applicant who demonstrates a prima facie case with a probability of success is entitled to interlocutory protection of the suit property pending trial, notwithstanding contrary assertions by a respondent. The Appellant further relied on Gladys Wanjiru Kamau v Edwin Njeru Gichovi [2019] eKLR for the proposition that land is a unique commodity which cannot always be equated to money, such that damages may not afford an adequate remedy where a purchaser in possession stands to be deprived of the subject property. 16.The Respondent did not file any submissions or other response to the appeal as at the time this court retired to prepare this judgment notwithstanding service of the same, nor did he respond to two interlocutory applications earlier filed by the Appellant before this Court, both of which were allowed. The appeal accordingly proceeds substantially unopposed on the merits, though this Court remains bound to satisfy itself independently that the appeal has merit before granting the orders sought. Issues for Determination 17.Having considered the record of appeal, the grounds of appeal and the submissions on file, this Court is of the view that the following issues fall for determination:i)Whether the learned trial Magistrate erred in finding that the Appellant had not established a prima facie case with a probability of success, and in declining, on that basis, to grant the temporary injunction sought;ii)Whether, on a proper application of the principles governing the grant of interlocutory injunctions, the Appellant is entitled to the orders sought in the Notice of Motion application dated 9th October 2023; andiii)What orders, including as to costs, should follow. Analysis and Determination The applicable standard on appeal 18.The grant or refusal of an interlocutory injunction is a matter of judicial discretion. An appellate court will accordingly not lightly interfere with the exercise of that discretion by a trial court, save where it is demonstrated that the trial court misdirected itself in some matter and, as a result, arrived at a wrong decision, or where it is manifest from the case as a whole that the trial court was clearly wrong in the exercise of its discretion and that, as a result, there has been an injustice: Mbogo & Another v Shah [1968] EA 93. 19.It is against this standard that the present appeal falls to be assessed. Whether a prima facie case was established 20.The conditions for the grant of an interlocutory injunction are settled. As stated in Giella v Cassman Brown & Co. Ltd [1973] EA 358, an applicant must first show a prima facie case with a probability of success; secondly, that he stands to suffer irreparable injury which would not be adequately compensated by an award of damages, unless restrained; and thirdly, that if the court remains in doubt, it will resolve the application on a consideration of the balance of convenience. 21.The trial court, having found that the Appellant was himself in breach of clause 3 of the Sale Agreement by reason of his admitted non-payment of the balance of the purchase price within ninety days, concluded that the Appellant could not, as a matter of equity, be entitled to an injunction, and dismissed the application on that ground alone, without proceeding to consider the second and third Giella conditions. 22.With respect, this Court is unable to agree that the question of default was, on the material before the trial court, as one-sided as the Ruling suggests. Clause 3 of the Agreement fixed timelines for payment of the purchase price calculated from the date of the Agreement, without express reference to the Respondent’s parallel and undisputed obligation to procure subdivision of the mother title and to avail individual completion documents for House No. 2. The correspondence on record, spanning December 2015 to February 2018, consistently records the Appellant’s position that he stood ready and willing to settle the balance upon receipt of those completion documents, and nothing in the Respondent’s own contemporaneous correspondence disputes that subdivision remained outstanding; indeed, the Respondent himself avers, in his own Replying Affidavit, that the title to House No. 2 had yet to be processed. 23.Clause 8 of the Agreement incorporates the Law Society of Kenya Conditions of Sale (1989 Edition) save as varied by, or inconsistent with, the express terms of the Agreement. Condition 6(1) of those Conditions, headed “Possession before Completion”, provides that where a purchaser takes possession of property before completion otherwise than under a lease or tenancy entered into before the contract, the purchaser occupies as licensee of the vendor and not as tenant, and that the taking of possession is not an acceptance of the vendor’s title or a waiver of the purchaser’s right to make requisitions or objections to title. On the material before the trial court, the Appellant took possession of House No. 2 pursuant to, and following, the Agreement, and there is no evidence of any separate lease or tenancy agreement preceding the contract. The Respondent’s contention, raised for the first time in his Replying Affidavit, that the parties’ relationship had been converted into a tenancy under which rent had accrued and extinguished the Appellant’s deposit, appears, prima facie, inconsistent with Condition 6(1) as incorporated, and with clause 6 of the Agreement, which disclaims any variation of the Agreement save in writing by the parties. That contention, in this Court’s view, raised a serious triable issue going to the root of the dispute, rather than a basis upon which the Appellant’s claim could summarily be defeated at the interlocutory stage. 24.The question where, as between the parties, default in fact lay is ultimately a matter for the trial court upon hearing of the suit on its merits, including any necessary oral evidence and cross-examination. It is not a matter to be conclusively determined on affidavit evidence at the interlocutory stage, particularly where the documentary record discloses a genuine and longstanding dispute as to the sequencing of each party’s obligations under the Agreement. This approach finds support in the Court of Appeal’s observations in Westlands Residential Resort Limited v Kawakanja Limited & 2 Others (supra), where the Court, considering a similar contention that an agreement for sale was unenforceable, held that the question whether an agreement which on its face appears valid and enforceable suffers from some defect rendering it invalid or unenforceable “is a matter for the trial court”, and proceeded to find that the appellant in that case had, prima facie, made out a case with some probability of success notwithstanding the respondents’ contrary assertions. 25.Applying the same approach here, this Court finds that the Appellant has, prima facie, demonstrated a case with a probability of success: there exists a valid and signed Sale Agreement; the Appellant has paid approximately 72% of the agreed purchase price; the Appellant has been in long, undisturbed and apparently licensed occupation of House No. 2 consistent with Condition 6(1) of the incorporated Conditions of Sale; and there is a real and triable dispute as to whether the Respondent’s own default in procuring subdivision and completion documents precluded the Appellant from being placed in default. The trial court, in this Court’s view, misdirected itself in treating the question of the Appellant’s default as conclusively resolved against him at the interlocutory stage, and in declining, on that footing alone, to consider whether a prima facie case had otherwise been made out. Irreparable harm and the balance of convenience 26.Having found that a prima facie case has been demonstrated, fairness requires this Court to also consider the second and third Giella conditions, which the trial court did not reach. 27.As to irreparable harm, the subject matter of the dispute is a specific house in which the Appellant has resided for over a decade, having invested a substantial proportion of the agreed purchase price. Land, and improvements upon it, are by their nature a unique commodity which cannot always be equated to money: Gladys Wanjiru Kamau v Edwin Njeru Gichovi (supra). Were the Respondent permitted, pending hearing of the suit, to evict the Appellant or to sell House No. 2 to a third party, as the record suggests he was actively contemplating, the substratum of the suit would be destroyed and any eventual judgment in the Appellant’s favour rendered nugatory. The Appellant would be left to pursue a claim for damages of uncertain recovery, which this Court does not consider would adequately compensate him for the loss of a specific property in which he has resided for so long and invested so substantially. 28.As to the balance of convenience, it tilts decidedly in the Appellant’s favour. The grant of a temporary injunction maintaining the status quo, namely the Appellant’s continued occupation of House No. 2 pending hearing of the suit, occasions no comparable prejudice to the Respondent, who remains at liberty to prosecute his defence at trial and, should he succeed, to recover any balance found due to him together with such other relief as the trial court may consider just. A refusal of the injunction, by contrast, would expose the Appellant to the real risk of irreversible dispossession and disposal of the property before the merits of the parties’ competing claims can be determined. Conclusion on the issues 29.For the foregoing reasons, this Court finds that the Appellant met the threshold for the grant of a temporary injunction under the principles in Giella v Cassman Brown & Co. Ltd (supra), and that the learned trial Magistrate, by resolving the question of default conclusively against the Appellant at the interlocutory stage and declining, on that basis, to proceed to consider irreparable harm and the balance of convenience, misdirected the trial court and arrived at a wrong decision occasioning an injustice to the Appellant within the meaning of Mbogo & Another v Shah (supra). The appeal accordingly succeeds. 30.This Court notes, for completeness, that pending the hearing of this appeal, the Appellant successfully moved this Court for interim relief vide an application dated 7th March 2024, which, upon review, was allowed by Angote, J. on 30th September 2024, resulting in temporary injunctive orders pending determination of this appeal. This Judgment, for the avoidance of doubt, confirms and subsumes those interim orders, which shall continue in force in the terms set out below pending the hearing and final determination of the substantive suit, MCELC No. E426 of 2023, or until further orders of the trial court. Disposition 31.Arising from the foregoing, this Court makes the following orders:i)The appeal be and is hereby allowed.ii)The Ruling and Order of the Honourable S.A. Opande, Principal Magistrate, delivered on 13th February 2024 in Milimani Chief Magistrate’s Court MCELC No. E426 of 2023, be and is hereby set aside in its entirety.iii)In substitution thereof, the Notice of Motion application dated 9th October 2023 be and is hereby allowed; a temporary injunction shall, and does hereby, issue restraining the Respondent, whether by himself, his agents, servants and/or representatives, from evicting, trespassing upon, selling, transferring, charging, leasing or in any other manner dealing with House No. 2 erected on L.R. No. Nairobi/Block 105/8107, pending the hearing and final determination of MCELC No. E426 of 2023, or until further orders of the trial court.iv)The case file be and is hereby remitted to the Chief Magistrate’s Court at Milimani for expeditious hearing and determination of MCELC No. E426 of 2023 on its merits.v)Each party to bear own costs of the appeal.It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 18TH DAY OF JUNE, 2026.E.K. WABWOTOJUDGEIn the presence of:Ms. Mwagi Christine h/b for Mr. Nyakundi for the Appellant.N/A for the Respondent.Court Assistants: Mary Ngoira and David Ngoosa.