[2016] KEELC 826 (KLR)

REPUBLIC OF KENYA

ENVIRONMENT AND LAND COURT AT KISII

CASE NO. 539 OF 2015

OLELIMPASO SAITOTI PETER NKOLOPE …………………………….. PLAINTIFF

VERSUS

EMMANUEL LEKAKENY KAYO …………………………………..…… DEFENDANT

RULING

The plaintiff herein Olelimpaso Saitoti Peter Nkolope filed a suit in this court on 7th December 2015 seeking various remedies against the defendant arising out of a claim that the defendant herein Emmanuel Lekakeny Kayo by a written agreement dated 29th October 2013, sold a portion of LR No. Transmara/Olomismis Group Ranch/769 (hereinafter referred to as the suit land). According to the plaintiff, the suit land was erroneously indicated as LR No. Transmara/Olomismis Group Ranch 491 in the agreement for sale. It is the plaintiff’s contention that upon making partial payment for the suit land, the defendant granted him vacant possession of a portion of the 10 acres that he had purchased whereupon the plaintiff has established his homestead but avers that the defendant has refused to facilitate the transfer of the 10 acres the plaintiff purchased in terms of the agreement of sale.

Simultaneously with the plaint, the plaintiff filed a Notice of Motion application under Order 40 rule 1, 2, 3 and 4 of the Civil Procedure Rules and seeks the following order of injunction:-

Pending the final determination of the suit there be issued an order of injunction restraining the defendant either by himself, agents, employees and/or whosoever claiming through him from alienating, offering for sale advertising for sale, selling, subdividing and in any way dealing with LR No. Transmara/Olomismis Group Ranch/769 measuring approximately 10 acres.

The plaintiff’s application was premised on the grounds set out on the face of the application notably that the plaintiff was the bonafide purchaser for value of a portion measuring approximately 10 acres out of land parcel 769 which the defendant had acknowledged but was now issuing him with a notice to vacate the 1/8 acre portion of the suit land he now occupies through a letter by Kassamani & Company Advocates dated 30th December 2015. Letter annexed and marked “OSPN1”. The plaintiff contends that he paid the bulk of the purchase of Kshs. 750,000/= leaving only a balance of Kshs. 63,170/= which was payable against the processing of the transfer in his favour.

The plaintiff further contends that despite honouring his part of the bargain in regard to the sale transaction the defendant has failed neglected and/or refused to facilitate the completion of the sale transaction by causing the subdivision and transfer of the plaintiff’s portion of land in accordance with the sale agreement. The plaintiff avers that the defendant has instead resorted to threatening and intimidating the plaintiff with violence with a view of getting the plaintiff to vacate the portion he is occupying and that this has led to criminal cases as per proceedings annexed and marked “OSPN-6” being preferred against the defendant at Kilgoris Magistrates Court.

The plaintiff thus avers that unless the court issues a temporary order of injunction restraining the defendant from dealing with the suit property in any manner and from interfering with the plaintiff’s possession, the defendant is likely to unlawfully evict the plaintiff and/or sell the property to third parties which acts would result in the plaintiff being dispossed of his land and the alienation of the subject of the suit to the prejudice of the plaintiff.

The defendant filed a replying affidavit dated 28th December 2015 in opposition to the plaintiff’s application for injunction. The defendant denies he was the registered owner of land parcel Transmara/ Olomismis/491 as at the time of the agreement for sale dated 29th October 2013 and thus asserts the agreement did not relate to land parcel Transmara/Olomismis/769 in respect of which the plaintiff seeks specific performance. The defendant while denying that he was the registered owner of parcel 491 nonetheless avers that the plaintiff did not honour the terms of the agreement as he only paid a sum of kshs. 500,000/= as follows:-

29th October 2013 kshs. 100,000

17th February 2014 kshs. 250,000

19th February 2014 kshs. 150,000

The defendant stated that all the Mpesa payments that the plaintiff paid to the defendant were on account of fodder supplied by the defendant to the plaintiff. The defendant disputes that the plaintiff has occupied any portion of land parcel 769 and avers that the defendant having breached the sale agreement resorted to initiating criminal proceedings in an attempt to coerce the defendant into completing the defective sale agreement.

The parties argued the application by way of written submissions and both the plaintiff and the defendant’s counsel have filed their written submissions. Having reviewed and considered the plaintiff’s application, the affidavit in support and the affidavit in reply and the annexture thereof and the parties submissions the issue that this court needs to determine is whether or not the plaintiff on the material placed before the court deserves an interim order of injunction pending final determination of this suit.

The principles applicable to applications for interlocutory injunction are well settled. As established in the case of Giella –vs- Cassman Brown Company Ltd [1973] E. A 358, an applicant for interlocutory injunction must show that he has a prima facie case with a probability of success against the respondent, that unless the order is granted he will suffer irreparable harm that cannot be compensated in damages and in case the court is in doubt in regard to any of the two preceding conditions the court will determine the application on a balance of convenience.

Has the plaintiff made out a prima facie case with a probability of success? In the case of Mrao –vs- First American Bank of Kenya & 2 Others [2003] KLR 125, a prima facie case was defined in the following terms:-

“a prima facie case in a civil application includes but is not confined to a genuine and arguable case. It is a case which on the material presented to the court, a tribunal properly directing itself, will conclude that there exists a right which has apparently been infringed by the opposite parties to call for an explanation or rebuttal from the latter”

In the present case the plaintiff places reliance on the agreement of sale dated 29th October 2013. The agreement unequivocally refers to the parcel of land the subject of the sale as Transamara/Olomismis Group Ranch/491. The acknowledgements annexed as “OSPN-3” and “OSPN-4” dated 17th February 2014 and 19th May 2014 respectively refer to the parcel of land the subject of the sale as parcel 491. It is not shown that there was a deed of variation ever done to vary and/or amend the agreement of sale to denote the land the subject of the sale as Transamara/Olomismis/Group Ranch/769.

By the plaint the plaintiff relies on the agreement of sale dated 29th October 2013 but states the land the subject of the sale to be Transmara/Olomismis Group Ranch/769 which he states was erroneously indicated as parcel number Transamara/Olomismis Group Ranch/491 in the agreement. The defendant does not acknowledge the error and one is concerned how such a fundamental error would occur right from inception and be repeated at least on two other occasions when the acknowledgements were done. The agreement that has been exhibited by the plaintiff as “OSPN2” (at least the copy furnished to the court) is incomplete as it does not contain the execution page and the court cannot as it were confirm it was indeed executed. As a document it is worthless if it is not executed. The agreement and the acknowledgements appear to have been prepared at a lawyer’s office and it is unclear what title documents, if any, may have been availed to the lawyer to prepare the agreement for sale. Did the documents relate to title of parcel 491 or 769? Had the plaintiff verified the ownership and particulars of the land he wished to purchase?

From the terms and the conditions of sale that appear at clause 4 of the agreement for sale at page 1, it is clear that the parties envisaged that the consent of the land control board would be required for the transaction that they were entering into. The land being agricultural land within the meaning ascribed to agricultural land under the provisions of the Land Control Act, Cap 302 Laws of Kenya there is no doubt that the provisions of the Act were applicable to the sale transaction. There is no evidence that the consent of the Land Control Board was sought or obtained for the transaction. The plaintiff is clear that the defendant declined or refused to take him to the Land Control Board.

Section 6 (1) (a) of the Land Control Act provides:-

6(1) Each of the following transactions:

The sale, transfer, lease, mortgage, exchange, partition or other disposal of or dealing with any agricultural land which is situated within a land control area;

is void for all purposes unless the land control board for the land control area or division in which the land is situated has given its consent in respect of that transaction in accordance with this Act.

Section 8 (1) of the Act requires that the application be made to the board in a prescribed form and the consent be obtained within six months of the making of the agreement by any of the parties. In the present matter no application has been made to the land control board and neither has any consent been granted as required. The transaction between the plaintiff and the defendant has therefore become void for all purposes in terms of section 6 (1) of the Land Control Act. The court cannot enforce a void contract and in the premises an order of specific performance would in my view not be available to the plaintiff. It does appear that the remedy available to the plaintiff would be to seek recovery of the consideration paid pursuant to the contract that has become void.

In the circumstances of this case, I cannot say that the plaintiff has established a prima facie case with a probability of success to warrant the grant of an interlocutory injunction. To the extent that the plaintiff has not demonstrated that he would be entitled to an order of specific performance at the trial there would be no basis to grant an injunction. If the plaintiff’s remedy would be to recover the consideration paid, then damages would be adequate compensation and no irreparable harm would be suffered.

This is yet another illustration of the casualness that parties approach land transactions when there are stringent legal requirements to be satisfied before a land transaction is concluded successfully particularly where the provisions of the Land Control Act have application. Lawyers advising parties should endeavour to have parties appreciate the legal requirements otherwise the parties risk to fall foul of the law. The court’s duty is to interpret and implement the law that the legislature has enacted notwithstanding the undesired implications at times.

The net result in the matter is that I find the plaintiff’s application dated 7th December 2015 to be without merit and I order the same dismissed. The interim order granted herein is vacated. I order that each party bears their own costs.

Ruling dated, signedand deliveredat Kisii this 13th day of May, 2016.

J. M MUTUNGI

JUDGE

In the presence of:

………………………………………….. for the plaintiff

………………………………….……… for the defendant

………………………………….……… Court assistant

J. M. MUTUNGI

JUDGE