[2018] KEELC 381 (KLR)
The court found that the plaintiff had established a prima facie case by demonstrating the existence of a sale agreement for the suit property, payment of substantial consideration, and the 1st defendant's failure to transfer the property. The evidence was uncontroverted as the defendants did not respond. The court...
Source-derived case information.
- Citation
- [2018] KEELC 381 (KLR)
- Parties
- Plaintiff: Joseph Mithiga Wainaina; Defendant: Gichuru Kamotho; Defendant: Naivasha District Land Registrar
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 438 of 2018
- Procedural Posture
- Interlocutory Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- Interlocutory injunction granted in favour of the plaintiff; order of inhibition declined; costs to the plaintiff.
- Judges
- DO Ohungo
- Legal Topics
- Sale of Land, Specific Performance, Injunctive Relief, Land Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Mithiga Wainaina
Plaintiff
Gichuru Kamotho
Defendant
Naivasha District Land Registrar
Defendant
Procedural Posture
Interlocutory Injunction Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the plaintiff has established a prima facie case for grant of a temporary injunction restraining the 1st defendant from dealing with the suit property.
- 2 Whether damages would be an adequate remedy for the plaintiff.
- 3 Whether an order of inhibition can be issued in respect of the suit property.
Ratio Decidendi
The court found that the plaintiff had established a prima facie case by demonstrating the existence of a sale agreement for the suit property, payment of substantial consideration, and the 1st defendant's failure to transfer the property. The evidence was uncontroverted as the defendants did not respond. The court held that damages would not be an adequate remedy given the nature of the property interest at stake. However, the court declined to grant an order of inhibition because there was no evidence that the new parcel had been registered, making such an order futile. Consequently, the court granted a temporary injunction restraining the 1st defendant from selling, transferring, or...
Court Disposition
Interlocutory injunction granted in favour of the plaintiff; order of inhibition declined; costs to the plaintiff.
Orders
- An injunction is granted restraining the 1st defendant, his agents and/or servants from selling, transferring or alienating land parcel number Naivasha/Municipality Block 4/169 pending hearing and determination of this suit.
- The 1st defendant shall bear costs of the application.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAKURU
CASE No. 438 OF 2017
JOSEPH MITHIGA WAINAINA.......................................PLAINTIFF
VERSUS
GICHURU KAMOTHO.............................................1ST DEFENDANT
NAIVASHA DISTRICT LAND REGISTRAR.......2ND DEFENDANT
RULING
1. By Notice of Motion dated 20th November 2017, the plaintiff sought the following orders:
a) Spent.
b) Spent.
c) That this honourable court be pleased to issue an order of temporary injunction restraining the 1st respondent either by himself, agents and/or servants howsoever from selling, transferring, alienating, dealing with or otherwise interfering with Land Parcel No. Naivasha/Municipality Block 4/41 formerly LR.1144/1/IX and specifically number 169 pending the hearing and determination of this suit.
d) Spent.
e) That this honourable court be pleased to issue an order of inhibition against Land Parcel No. Naivasha/Municipality Block 4/41 formerly LR.1144/1/IX and/or specifically plot number 169 pending the hearing and determination of this suit.
f) That the costs of this application be borne by the respondents.
2. The application is supported by an affidavit sworn by the plaintiff. The defendants neither responded to the application nor attended its hearing.
3. The plaintiff deposed that on 15th August 2011, the 1st defendant who is his brother in-law sold to him a 50 by 100 to be excised from land parcel number Naivasha/Municipality Block 4/41 at a consideration of Kshs.2, 000, 000. The transaction was reduced to a sale agreement dated 15th August 2011. The plaintiff paid a total of Kshs.1, 874, 086. Plot No. Naivasha/Municipality Block 4/41 has since been subdivided and the property that the plaintiff bought is now known as Naivasha/Municipality Block 4/169. The 1st defendant has not transferred the property to the plaintiff as agreed.
4. I have considered the application. Once again we revisit the law relating to interlocutory injunctions. An applicant seeking such an order must satisfy the test in Giella –vs- Cassman Brown & Co. Ltd [1973] E.A 358. He must establish a prima facie case with a probability of success. Even if a prima facie case is established, an injunction would not to issue if damages can adequately compensate him. Finally, if the court is in doubt as to the answers to the above two tests then the court would determine the matter on a balance of convenience. As was recently held by the Court of Appeal in Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR, all the three Giella conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially and that if prima faciecase is not established, then irreparable injury and balance of convenience need no consideration.
5. From the uncontroverted evidence placed before the court, I am satisfied that a sale agreement dated 15th August 2011 was executed between the plaintiff and the 1st defendant in the presence of an advocate. In the agreement, the plaintiff bought a plot measuring 50 by 100 feet to be excised from Naivasha/Municipality Block 4/41 and that the portion bought by the plaintiff is now known as Naivasha/Municipality Block 4/169. In the circumstances, I am persuaded that the plaintiff has established a prima facie case. Damages will not be an adequate remedy.
6. Regarding the prayer for inhibition, the plaintiff has not availed evidence that the new parcel known as Naivasha/Municipality Block 4/169 has been registered. In the absence of registration, it would be futile to issue an order of inhibition.
7. In the end, I grant an injunction restraining the 1st defendant his agents and/or servants from selling, transferring or alienating land parcel number Naivasha/Municipality Block 4/169 pending hearing and determination of this suit. The 1st defendant shall bear costs of the application.
Dated, signed and delivered in open court at Nakuru this 11th day of December 2018.
D. O. OHUNGO
JUDGE
In the presence of:
Mr Bore holding brief for Mr Kipkoech for the plaintiff/applicant
Ms Amulabu holding brief for Mr Otieno for the 1st defendant/respondent
No appearance for the 2nd defendant/respondent
Court Assistants: Gichaba & Lotkomoi