[2007] KEHC 2157 (KLR)
The court found that the plaintiff had established a prima facie case by demonstrating that he had entered into a sale agreement, paid a substantial portion of the purchase price, and taken possession of the property. The subsequent presentation of a tenancy agreement and the attempt to evict him raised serious...
Source-derived case information.
- Citation
- [2007] KEHC 2157 (KLR)
- Parties
- Plaintiff: John Kigoi Nduati; Defendant: Charles Muchiri Njitihi; Defendant: Nyaga Kamundi t/a Nyaga Kamundi & Company Advocates; Defendant: Patrick Mwanga
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 2128 of 2007
- Procedural Posture
- Injunction Application / Interlocutory Ruling on Application for Injunction Pending Determination of Main Suit
- Outcome
- Interlocutory injunction granted in favor of the plaintiff pending determination of the suit.
- Legal Topics
- Injunctive Relief, Fraud in Property Transactions, Sale of Land, Possession and Eviction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Kigoi Nduati
Plaintiff
Charles Muchiri Njitihi
Defendant
Nyaga Kamundi t/a Nyaga Kamundi & Company Advocates
Defendant
Patrick Mwanga
Defendant
Procedural Posture
Injunction Application / Interlocutory Ruling on Application for Injunction Pending Determination of Main Suit
Legal Issues
- 1 Whether the plaintiff is entitled to an interlocutory injunction restraining the defendants from evicting him from the suit property pending determination of the suit.
- 2 Whether the plaintiff has established a prima facie case with a probability of success.
- 3 Whether damages would be an adequate remedy for the plaintiff if the injunction is not granted.
Ratio Decidendi
The court found that the plaintiff had established a prima facie case by demonstrating that he had entered into a sale agreement, paid a substantial portion of the purchase price, and taken possession of the property. The subsequent presentation of a tenancy agreement and the attempt to evict him raised serious questions of fraud and proprietary rights. The court held that damages would not be an adequate remedy given the plaintiff's occupation of the property with his family and the risk of eviction. The balance of convenience favored maintaining the status quo to prevent irreparable harm to the plaintiff. Accordingly, the court granted an interlocutory injunction restraining the...
Court Disposition
Interlocutory injunction granted in favor of the plaintiff pending determination of the suit.
Orders
- The defendants are restrained from evicting the plaintiff from the suit property LR13330/559 until the determination of the suit.
- Summons to enter appearance to be filed and served upon the defendants.
Full Case Text
Judgment text and source record
54 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 2128 of 2007
1. Land and Environmental Law Division
2. Subject of main suit - Fraud
i. LR 13330/559
Subdivision No.138 Thome farmers numbers 5 estate Nairobi.
ii) 4 Bedroomed house
iii) Sale agreement been plaintiffs and 1st defendant for a sum of Ksh.11 million
iv) Advocate for both parties M/s Nyaga & Kamundi
v) Sale agreement dated 10. 8.07 paid 7 million and took possession. Balance Ksh. 3 million awaiting transfer
vi) Remit agreement for 2 ½ months signed finally
vii) Surprised he is now tenant and not owner
viii) No defendants to court.
3. In reply:
Application 20 September 2007 injunction
i) No appearance from defendants
ii) Application granted
4. Case law
a) Giella v Cassman Brown & Co. (1973) EA 355
b) Olkiombo v County Council of Narok & Another (1991) KLR 560
c) Waithaka v Industrial & Commercial Development Corporation (2000) KLR 374
5. Advocate
S.K. Bundotish for Kale Maina & Bundotish Co. Advocates for the plaintiff
C. Muchiri for Charles Muchiri Njithi & Co. Advocates for the defendant
JOHN KIGOI NDUATI................................................................PLAINTIFF
VERSUS
CHARLES MUCHIRI NJITIHI..........................................1st DEFENDANT
NYAGA KAMUNDI
T/A NYAGA KAMUNDI & COMPANY ADVOCATES..2nd DEFENDANT
PATRICK MWANGA …………………………………...3RD DEFENDANT
RULING
I: Application for injunction dated 20 September 2007 to restrain the defendants from evicting the plaintiff from the suit properly LR13330/559
A: Back ground to application
1: The plaintiff John Kigoi Nduati, entered into a sale agreement with Charles Muchiri Njitihi the 1st defendant herein. He agreed to purchase a house in Thome Farm Estate No.3 plot 138 being a partial sub division of LR 13330/559 for Ksh. 5 million. This 4 bedromed house was vacant.
2. By a sale agreement dated 6 May 2007 duly signed between the parties and which was being executed by the 2nd defendant herein being the advocate for both parties, the plaintiff paid Ksh.7 million. He took possession of the property on 21 July 2007 and moved in with his family.
3. The said 1st defendants agent one Patrick Mwanga herein the 3rd defendant brought to him blank papers to sign. Those papers returned to him and reflected that they were indeed tenancy agreement and not anything to do with the sale agreement. It showed he would be a tenant for 2 ½ months and required to pay rent. At the end of the two months the defendant came to evict the plaintiff from the premises
4. The plaintiff filed this suit on 19 September 2007 and filed on 20 September 2007 under a certificate of urgency application for injunction.
II: Injunction
5. This court directed that the defendants be reserved with the application as the orders ordered for service was too short. On the day called out for inter parties hearing the said defendants herein were absent.
6. The application sought orders that the defendants be restrained from evicting and or auctioning his grounds. He seeks this courts protection and rules on the case law of :-
Giella v Cassman Brown & Co. (1973) EA 39 Olkiombo & Country Council of Naroko & Another (1991) KLR 560and Waithaka v Industrial and Commercial Development Corporation(2001) KLR 374.
Whereby the principles followed that there must be a prima facie case with a probability of success, - that the complaint would not be adequately compensated by damages and that the court would decide matters on a balance of convenience.
II: Finding
6. The balance of convenience herein is that the plaintiff has established a prima facie case that he is entitled to an injunction to protect himself and his family from unlawful acts if any from the defendants.
7. I accordingly grant the injunction till the determination of this suit.
8. I order that summons to enter appearance be filed and served upon the defendants.
9. The costs will be in the cause.
Dated this 4th day of October 2007 at Nairobi.
M.A. ANG’AWA
JUDGE
S.K. Bundotish for Kale Maina & Bundotish Co. Advocates for the plaintiff
C. Muchiri for Charles Muchiri Njithi & Co. Advocates for the defendant