[2023] KEELC 22218 (KLR)

Mbeca v Thuo & another (T/a Humuka Investment Selling Agent) (Environment & Land Case E008 of 2023) [2023] KEELC 22218 (KLR) (6 December 2023) (Ruling)

Neutral citation: [2023] KEELC 22218 (KLR)

Republic of Kenya

In the Environment and Land Court at Thika

Environment & Land Case E008 of 2023

BM Eboso, J

December 6, 2023

Between

Joyce Mwihaki Mbeca

Plaintiff

and

Vincent Nguraiya Thuo

1st Defendant

Bernard Mungai Nganga

2nd Defendant

T/a Humuka Investment Selling Agent

Ruling

1. Falling for determination in this ruling is the notice of motion dated 17/7/2023, brought by the plaintiff, Joyce Mwihaki Mbeca [the applicant]. Through the motion, the applicant seeks, inter alia, an interlocutory order of injunction restraining the defendants by themselves, their agents and or servants from subdividing, selling, constructing on, or in any other manner whatsoever dealing with land parcel number Thika Municipality Block 9/1296 [hereinafter referred to as “the suit property”], pending the hearing and determination of this suit. The application is premised on the grounds outlined in the motion and in the applicant’s supporting affidavit sworn on 11/7/2023. The application was canvassed through brief oral submissions tendered in the virtual court on 4/10/2023.

2. The case of the applicant is that, at all material times, the 2nd respondent was a land selling agent of the 1st respondent. On 12/4/2018, she entered into a sale agreement with the 2nd respondent pursuant to which the 2nd respondent, acting as an agent of the 1st respondent, sold to her four plots that were to be surveyed out of the suit property. The four plots were identified in the sale agreement as Nos 8, 9, 14 and 15. The agreed purchase price for the four plots was Kes 8,800,000 payable as follows: (i) Kes was payable on execution of the agreement and the said execution constituted an acknowledgement of receipt of the money; (ii) Kes 4,400,000 was to be paid after registration of the title deed at the Lands Registry; and (iii) Kes 2,200,000 was to be paid in exchange with the title deeds of the said plots.

3. The applicant contends that the 1st respondent signed an agency agreement dated 24/4/2018, authorizing the 2nd respondent to subdivide the suit property into 1/4 acre, 1/8 acres plots and sell them to members of the public on his behalf. The applicant adds that despite making a total payment of Kes 6,800,000 to the respondents, the respondents have neither provided her with completion documents nor made steps to convey the four (4) plots to her.

4. The 1st respondent opposes the application through his replying affidavit sworn on 3/10/2023. The 1st respondent contends that the applicant cannot rely on the agency agreement dated 24/4/2018 because at the time of signing of the sale agreement dated 12/4/2018, the 1st defendant had not signed the agency agreement with the 2nd respondent. He adds that he has not ratified the purported agreement between the applicant and the 2nd respondent. The 1st respondent argues that there is no privity of contract between him and the applicant, hence the only remedy available to the applicant is to sue the 2nd respondent for recovery of the sums paid. The 1st respondent urges the court to dismiss the application.

5. Despite service of both the summons and the application on the 2nd respondent, he neither filed a response nor attended the hearing of the application.

6. I have considered the application; the response to the application; and the parties’ oral submissions. The single question to be determined in the application is whether the applicant has satisfied the criteria upon which trial courts exercise jurisdiction to grant interlocutory injunctive reliefs. The relevant criteria was outlined by the East African Court of Appeal in Giella v Cassman Brown (1973) EA 358. First, the applicant is required to demonstrate a prima facie case with a probability of success. Second, the applicant is required to demonstrate that if the injunction is denied, she would stand to suffer injury that may not be indemnifiable through an award of damages. Third, should the court have doubt on both or either of the above two limbs, the application is to be decided based on the balance of convenience. At the stage of disposing the plea for interlocutory injunctive relief, the court does not make conclusive or definitive findings on the key issues in the suit. Definitive and conclusive findings are reserved for judgment after trial.

7. Has the applicant demonstrated a prima facie case with the probability of success? The applicant has at this interlocutory stage demonstrated that at all material times the 2nd respondent was a land selling agent of the 1st respondent. He has exhibited an agency agreement dated 24/4/2018 between the two respondents pursuant to which the agency was formalized and the original title relating to the suit land was handed to the 2nd respondent by the 1st respondent. Under the formal agency agreement, the 1st respondent expressly appointed the 2nd respondent to subdivide the suit land into 1/4 acre and 1/8 acre plots and sell them on behalf of the 1st respondent. The applicant has also demonstrated that out of the agreed purchase price of Kes 8,800,000, she paid to the respondent a total of Kes 6,800,000, leaving a balance of Kes 2,000,000. There is also evidence on record showing that in September 2019, the respondents’ lawyers, M/s Milimo, Muthomi & Co Advocates asked the applicant to make a further payment of Kes 1,000,000 to enable them process the certificates of lease in favour of the applicant. Further, as late as 2021, the said advocates asked the applicant to avail Kes 200,000 to enable the respondents complete the process. All these were happening post April 2018.

8. The 1st respondent opposes the application principally on the ground that his formal agency agreement with the 2nd respondent was dated 24/4/2018 whereas the sale agreement is dated 12/4/2018. It is however observed from the agency agreement that, the 1st respondent acknowledged that as at 24/4/2018, the 2nd respondent had spent Kes 1,600,000 in order to obtain certificate of lease relating to the land in favour of the 1st respondent. The 1st respondent has at this stage not explained to the court what relationship existed between them that enabled the 2nd respondent to spend Kes 1,600,000 and “obtain the certificate of lease” for the suit land on his behalf.

9. Given the above circumstances there are areas of doubt in the respective cases that have been presented by the parties at this interlocutory stage. The 1st defendant who would have told the court the circumstances under which he sold the plots and received purchase price from the plaintiff elected to keep away. It is not clear if he is acting in conspiracy with the 1st defendant to defraud the plaintiff.

10. On the adequacy of damages, land is an emotive resource. The applicant entered into the sale agreement because she wanted the four plots.

11. Consequently, the court takes the view that the application dated 17/7/2023 is one to be disposed on the basis of the balance of convenience. The balance of convenience favours preserving the four plots pending the hearing and determination of this suit. The court will, in the circumstances, preserve the plots in terms of the sizes that were agreed in the agreement dated 12/4/2018. Further, the applicant will be expected to deposit the balance of the purchase price in court as a condition for the preservatory order.

12. In the end, the notice of motion dated 17/7/2023 is disposed in the following terms:

a.Pending hearing and determination of this suit, a preservatory order is hereby issued restraining the two defendants against subdividing, selling, or constructing on the following plots within land parcel number Thika Municipality Block 9/1296:i.Plot Number 8 measuring 100 feet by 100 feet.ii.Plot Number 9 measuring 100 feet by 100 feet.iii.Plot Number 14 measuring 50 feet by 100 feet.iv.Plot Number 15 measuring 50 feet by 100 feet.b.The plaintiff shall deposit in court the balance of the purchase price in the sum of Kes 2,000,000 within 30 days. In default, the above preservatory order shall stand automatically vacated.c.Costs of the application shall be in the cause.

DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA ON THIS 6TH DECEMBER 2023B M EBOSOJUDGEIn the presence of: -Ms Jin for the plaintiffMs Mugo holding brief for Karanja Kang’iri for the 1st DefendantCourt Assistant: DominicTHIKA ELC CASE NO E008 OF 2023 (RULING) Page 7