[2018] KEELC 2407 (KLR)
The court found that the plaintiffs had established a prima facie case for injunctive relief by demonstrating that they entered into a valid sale agreement, substantially performed their contractual obligations, and have been in possession of the property since 2007. The defendants did not oppose the application,...
Source-derived case information.
- Citation
- [2018] KEELC 2407 (KLR)
- Parties
- Plaintiff: Julie Mukami Kanyoko; Plaintiff: Simon Ngeta Kanyoko; Plaintiff: Perpetua Wanjiru Kanyoko; Defendant: Samuel Mukua Kamere; Defendant: Anne Wambui Kamere
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 229 of 2011
- Procedural Posture
- Civil Suit / Interlocutory Application (injunction) Ruling
- Outcome
- Notice of Motion allowed; interlocutory injunction granted; suit set for formal proof.
- Judges
- BM Eboso
- Legal Topics
- Specific Performance, Injunctive Relief, Sale of Land, Possession, Formal Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Julie Mukami Kanyoko
Plaintiff
Simon Ngeta Kanyoko
Plaintiff
Perpetua Wanjiru Kanyoko
Plaintiff
Samuel Mukua Kamere
Defendant
Anne Wambui Kamere
Defendant
Procedural Posture
Civil Suit / Interlocutory Application (injunction) Ruling
Legal Issues
- 1 Whether the plaintiffs are entitled to an interlocutory injunction restraining the defendants from interfering with their possession of the suit property pending determination of the suit.
- 2 Whether the plaintiffs have demonstrated a prima facie case for the grant of injunctive relief under the principles in Giella v Cassman Brown.
- 3 Whether the plaintiffs are entitled to police assistance to enforce the injunction.
Ratio Decidendi
The court found that the plaintiffs had established a prima facie case for injunctive relief by demonstrating that they entered into a valid sale agreement, substantially performed their contractual obligations, and have been in possession of the property since 2007. The defendants did not oppose the application, and the evidence of trespass and damage by the defendants was uncontroverted. Applying the principles in Giella v Cassman Brown, the court held that the plaintiffs satisfied the requirements for an interlocutory injunction. The court further found it appropriate to grant police assistance to ensure compliance with the injunction, given the history of interference by the...
Court Disposition
Notice of Motion allowed; interlocutory injunction granted; suit set for formal proof.
Orders
- The 1st and 2nd Defendants, their servants, agents, employees or otherwise are restrained from entering, demolishing or interfering with the plaintiffs' quiet enjoyment and/or possession of the suit property pending hearing and determination of the suit.
- The Officer Commanding Station (OCS) Muthaiga Police Station is ordered to ensure compliance with the order of injunction restraining the defendants from acts of trespass, malicious damage, and unlawful attempts to seize possession of the suit property by force.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
ELC CIVIL SUIT NO. 229 OF 2011
JULIE MUKAMI KANYOKO ......................................... 1ST PLAINTIFF
SIMON NGETA KANYOKO ......................................... 2ND PLAINTIFF
PERPETUA WANJIRU KANYOKO ............................... 3RD PLAINTIFF
=VERSUS=
SAMUEL MUKUA KAMERE ....................................... 1ST DEFENDANT
ANNE WAMBUI KAMERE .......................................... 2ND DEFENDANT
RULING
1. Before me is a reconstructed court file. The original file went missing, prompting the Presiding Judge of the Court (Okongo J) to order a reconstruction of the File on 31/1/2018.
2. A perusal of the reconstructed file reveals that the plaintiffs brought this suit in 2011 seeking among other prayers, an order of specific performance against the defendants. They contended that on 15/1/2007, they entered into a land sale agreement with the defendants, pursuant to which the defendants agreed to sell to them a piece of land designated as Land Reference Number 27/347 measuring 0. 1817 of a hectare and situated in Ridgeways, Nairobi. The agreed purchase price was Kshs 3,500,000. Under the agreement, the last instalment of the purchase price (Kshs 1,000,000) was to be paid upon registration of the property in the name of the purchasers. The plaintiffs contend that they discharged their contractual obligations and paid beyond the agreed instalments, leaving a balance of only Kshs 250,000 which they are ready and willing to pay.
3. On 3/7/2013 this court (Mutungi J) set aside the order of interlocutory judgment which had been entered by the Deputy Registrar but disallowed the defendant’s plea for leave to file a defence out of time. The court ordered that the plaintiff’s suit be set down for formal proof. Attempts to overturn that decision were declined by the Court of Appeal when the Court of Appeal (Warsame J) declined the defendants’ application for leave to file a record of appeal out of time.
4. On 31/1/2018, the plaintiffs brought a Notice of Motion seeking the following interim prayers:
a) Spent
b) Spent
c) That the 1st and 2nd Defendants jointly and severally their servants, agents, employees and or otherwise be restrained from entering, demolishing or any other way whatsoever interfering with the applicants’ quiet enjoyment and/or possession of the suit property pending hearing and determination of this suit.
d) That the Officer Commanding Station (OCS) Muthaiga Police Station be ordered to ensure compliance with the Order of Injunction restraining the defendants jointly and severally from continuing with their acts of trespass, malicious damage to the applicants property and the respondents’ unlawful and illegal attempts to seize the possession of the suit property by force.
5. The plaintiff contended that they have been in possession of the suit property, having been put in possession pursuant to the sale agreement. They further contended that in December 2017, the defendants together with their agents, servants and employees, trespassed upon the suit property and started cutting down trees. The above act prompted the filing of the present application. The application is supported by the affidavit of Julie Mukami Kanyoko sworn on 31/1/2018. No response was filed against the application. The application is therefore unopposed.
6. The court has considered the application and taken into account the contextual background to the application. As things stand now, the plaintiff’s claim for an order of specific performance and for damages is undefended. Secondly, the plaintiffs have placed evidence before the court to demonstrate that they entered into a sale agreement and discharged contractual obligations under the agreement. They have also demonstrated that they have had possession of the suit property since 2007. In light of the above background and evidence, the court is satisfied that the plaintiffs have satisfied the first and second limbs of Giella v Cassman Brown (1973) EA 358.
7. Consequently, the Notice of Motion dated 30/7/2018 is allowed in terms of prayers 3 and 4. This suit shall be set down for formal proof forthwith.
DATED SIGNED AND DELIVERED AT NAIROBI ON THIS 29TH DAY OF JUNE 2018.
……………………….
B M EBOSO
JUDGE
In the presence of:-
Mr Kaka holding brief for MS Nyabuti for the Plaintiff
No appearance for the Defendant
Ms Halima Abdi - Court clerk