[2001] KEHC 812 (KLR)

[2001] KEHC 812 (KLR)

The court found that the plaintiff had demonstrated an arguable case that, but for the defendant's refusal to release the title documents upon a professional undertaking, the sale could have been completed within the contractual period. The defendant's insistence on payment before release of documents, despite knowing the plaintiff was being financed, was contrary to established conveyancing practice. However, the court also recognized that the defendant's argument that the plaintiff's request constituted a counter-offer was a plausible legal issue to be determined at trial. The court was in doubt as to the existence of a prima facie case with a probability of success but found that the...

Citation
[2001] KEHC 812 (KLR)
Parties
Plaintiff: Waithaka; Defendant: Industrial and Commercial Development Corporation (ICDC)
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
7 May 2001
Case Number
Civil Case 321 of 2001
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Outcome
Interlocutory injunction granted in favour of the plaintiff, conditional on undertaking as to damages.
Legal Topics
Auction Sale, Specific Performance, Injunctive Relief, Professional Undertaking, Breach of Contract
Source Language
English
Land and Property Civil Procedure Auction Sale Specific Performance Injunctive Relief Professional Undertaking Breach of Contract

Case Brief

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Parties

Waithaka

Plaintiff

Industrial and Commercial Development Corporation (ICDC)

Defendant

Procedural Posture

Civil Case / Ruling on Interlocutory Injunction Application

Legal Issues

  1. 1 Whether the defendant's refusal to release title documents upon the plaintiff's advocate's professional undertaking constituted a breach of the auction sale agreement.
  2. 2 Whether the plaintiff is entitled to an interlocutory injunction restraining the defendant from dealing with the property pending determination of the suit.
  3. 3 Whether the plaintiff's request for release of title documents on undertaking amounted to a counter-offer terminating the original contract.

Ratio Decidendi

The court found that the plaintiff had demonstrated an arguable case that, but for the defendant's refusal to release the title documents upon a professional undertaking, the sale could have been completed within the contractual period. The defendant's insistence on payment before release of documents, despite knowing the plaintiff was being financed, was contrary to established conveyancing practice. However, the court also recognized that the defendant's argument that the plaintiff's request constituted a counter-offer was a plausible legal issue to be determined at trial. The court was in doubt as to the existence of a prima facie case with a probability of success but found that the...

Court Disposition

Interlocutory injunction granted in favour of the plaintiff, conditional on undertaking as to damages.

Orders

  • A temporary injunction is issued restraining the defendant from terminating the sale agreement dated 6.12.2000 or dealing with the property known as LR 209/1459/11 in any manner prejudicial to the plaintiff's rights as auction purchaser pending hearing and determination of the suit.
  • The injunction is conditional on the plaintiff filing an undertaking on oath to pay damages to the defendant if it is found at trial that the injunction ought not to have been issued, such undertaking to be filed within 7 days.