[2017] KEELC 246 (KLR)

[2017] KEELC 246 (KLR)

The court found that the plaintiff had established a prima facie case with a probability of success, having paid a substantial part of the purchase price and the defendant having failed to effect transfer or refund the money. The plaintiff demonstrated a real risk of irreparable loss if the property were disposed of...

Source-derived case information.

Citation
[2017] KEELC 246 (KLR)
Parties
Plaintiff: M’mbetsa Chikololo Suma; Defendant: Kalume Karisa Mbitha
Court
Environment and Land Court
Court Station
Environment and Land Court at Mombasa
Jurisdiction
Kenya
Judgment Date
27 September 2017
Case Number
Environment & Land Case 201 of 2015
Procedural Posture
Notice of Motion / Ruling on Interlocutory Injunction Application
Outcome
Application allowed. Temporary injunction granted pending hearing and determination of the suit.
Judges
LC Komingoi
Legal Topics
Sale of Land, Specific Performance, Temporary Injunctions, Breach of Contract
Source Language
english
Land and Property Civil Procedure Sale of Land Specific Performance Temporary Injunctions Breach of Contract

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Parties

M’mbetsa Chikololo Suma

Plaintiff

Kalume Karisa Mbitha

Defendant

Procedural Posture

Notice of Motion / Ruling on Interlocutory Injunction Application

Legal Issues

  1. 1 Whether the plaintiff has established a prima facie case with a probability of success for grant of a temporary injunction.
  2. 2 Whether the plaintiff is likely to suffer irreparable loss if the injunction is not granted.
  3. 3 Whether the balance of convenience favours the grant of a temporary injunction.

Ratio Decidendi

The court found that the plaintiff had established a prima facie case with a probability of success, having paid a substantial part of the purchase price and the defendant having failed to effect transfer or refund the money. The plaintiff demonstrated a real risk of irreparable loss if the property were disposed of to a third party, as the defendant had not taken any steps to refund the purchase price or otherwise resolve the dispute. The court held that the balance of convenience favoured the plaintiff, who stood to lose both the land and the money paid. The defendant's willingness to refund was not supported by any concrete action. The court therefore granted the temporary injunction...

Court Disposition

Application allowed. Temporary injunction granted pending hearing and determination of the suit.

Orders

  • A temporary injunction is issued restraining the defendant, his agents, employees, and servants from disposing, alienating, transferring, or dealing with Plot Number 1003 within Mtwapa (original Title Number 284/100, Section III/MN Title Number CR 23981, certificate of Title Number CR 655521, measuring 0.4047...
  • A temporary injunction is issued restraining the Land Registrar Mombasa, his servants, or agents from issuing, registering, transferring, or otherwise dealing in Plot Number 1003 within Mtwapa (original Title Number 284/100, Section III/MN Title Number CR 23981, certificate of Title Number CR 65521, measuring 0.4047...