[2018] KEELC 3653 (KLR)
The court found that the plaintiff failed to establish a prima facie case with a probability of success, as the evidence indicated that the defendant had made substantial payments towards the purchase price and that the plaintiff had received the greater portion of the consideration. The agreement for sale provided...
Source-derived case information.
- Citation
- [2018] KEELC 3653 (KLR)
- Parties
- Plaintiff: Joseph Pkerker Ngolepus; Defendant: Wilson Lonapa
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Land Case 176 of 2017
- Procedural Posture
- Land Case / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed with costs to the defendant
- Judges
- FM Njoroge
- Legal Topics
- Temporary Injunctions, Sale of Land, Breach of Contract, Remedies for Breach, Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Pkerker Ngolepus
Plaintiff
Wilson Lonapa
Defendant
Procedural Posture
Land Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiff has established a prima facie case with a probability of success to warrant a temporary injunction.
- 2 Whether the plaintiff would suffer irreparable injury if the injunction is not granted.
- 3 Whether damages would be an adequate remedy for the alleged breach.
Ratio Decidendi
The court found that the plaintiff failed to establish a prima facie case with a probability of success, as the evidence indicated that the defendant had made substantial payments towards the purchase price and that the plaintiff had received the greater portion of the consideration. The agreement for sale provided for damages as a remedy for breach, and the court held that any injury suffered by the plaintiff could be adequately compensated by damages. The court also noted that the plaintiff, having decided to sell the property, would not suffer irreparable harm if the injunction was not granted. Consequently, the application for a temporary injunction was dismissed with costs to the...
Court Disposition
application dismissed with costs to the defendant
Orders
- The application dated 9/11/2017 is dismissed.
- Costs awarded to the defendant.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KITALE
LAND CASE NO. 176 OF 2017
JOSEPH PKERKER NGOLEPUS...............PLAINTIFF
VERSUS
WILSON LONAPA.......................................DEFENDANT
R U L I N G
1. The plaintiff filed the application dated 9/11/2017 seeking an order of temporary injunction to restrain the defendant from taking over and collecting rent or in any other way interfering with the plaintiff’s tenants at Plot No. D3 Makutano Town within West Pokot County pending the hearing and determination of this suit. He claims to own the suit land which comprises of business rental houses which land he intended to sell to the defendant, who has now refused to pay the entire agreed consideration despite the lapse of time within which he should have paid it.
2. It is alleged that the defendant was to take possession upon completion of the consideration but he has now asked the tenants to be paying rent to him without the plaintiff having permitted him to do so. This is said to be in contravention of the agreement. It is also alleged that the defendant has fraudulently changed the ownership records and so the plaintiff stands to lose the suit property.
3. The defendant has opposed the application. He filed his sworn affidavit dated 9/1/2018 on 12/1/2018. He avers that he has no debt outstanding in respect of the sale of the suit property. He gives an outline of how he has effected payments in his affidavit. He also attaches evidence of payment.
4. I have looked at the agreement for sale of the suit land. It provides for damages for breach while the plaint seeks rescission of the contract. Rescission may well be a remedy for any contract of sale where appropriate, but in this case the first stop is the remedy of damages provided for. It appears that the plaintiff is unhappy with the taking of possession but I cannot take lightly the averments in the replying affidavit with regard to the additional payments made on 27/4/2017, and 8/5/2017. I also cannot fail to notice that the plaintiff has taken the greater portion of the purchase price in respect of the suit land.
5. Further if the defendant has taken over the plot in breach, which may be proved at the hearing, I do not find that the plaintiff would suffer any irreparable injury that cannot be compensated for by way of damages if the orders sought herein do not issue for the sole reason that he had decided to sell the plot in the first place anyway. It may be more of a mathematical issue between the two parties.
6. Consequently, I find that the plaintiff has failed to prove that he has a prima facie case with probability of success or that he would suffer irreparable injury if the orders do not issue. I therefore dismiss the application dated 9/11/2017 with costs to the defendant.
Dated, signed and delivered at Kitale on this 26th day of March, 2018.
MWANGI NJOROGE
JUDGE
26/3/2017
Coram:
Before - Mwangi Njoroge, Judge
Court Assistant – Picoty
N/A for the parties
COURT
Ruling read in open court.
MWANGI NJOROGE
JUDGE
26/3/2018