[2018] KEELC 1280 (KLR)
The court found that the applicant failed to demonstrate a prima facie case with a probability of success, as the sale agreement's execution was not disputed and the applicant acknowledged receipt of part payment. The dispute was commercial in nature, and any loss suffered by the applicant could be adequately...
Source-derived case information.
- Citation
- [2018] KEELC 1280 (KLR)
- Parties
- Applicant: Riton Oloputu Ole Ramet; Respondent: Bravin Ashwin Gudka; Respondent: Akash Kiriit Gudka; Respondent: The District Land Registrar, Trans Mara Sub-County; Respondent: The District Land Surveyor, Trans-Mara Sub-County
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 575 of 2017
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- application dismissed with costs
- Judges
- MN Kullow
- Legal Topics
- Injunctive Relief, Land Sale Disputes, Registration of Title, Fraudulent Transfer
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Riton Oloputu Ole Ramet
Applicant
Bravin Ashwin Gudka
Respondent
Akash Kiriit Gudka
Respondent
The District Land Registrar, Trans Mara Sub-County
Respondent
The District Land Surveyor, Trans-Mara Sub-County
Respondent
Procedural Posture
Injunction Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the applicant has established a prima facie case with a probability of success for grant of an injunction.
- 2 Whether damages would be an adequate remedy for the applicant if the injunction is not granted.
- 3 Whether the balance of convenience favors the grant or refusal of the injunction.
Ratio Decidendi
The court found that the applicant failed to demonstrate a prima facie case with a probability of success, as the sale agreement's execution was not disputed and the applicant acknowledged receipt of part payment. The dispute was commercial in nature, and any loss suffered by the applicant could be adequately compensated by damages. Furthermore, the land was already registered in the respondents' names, making the grant of an injunction inappropriate. The balance of convenience favored the respondents, and the applicant did not satisfy the conditions for the grant of an injunction. Accordingly, the application for injunction was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application dated 3rd November, 2017 is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAROK
ELC CAUSE NO. 575 OF 2017
RITON OLOPUTU OLE RAMET.................PLAINTIFF/APPLICANT
-VERSUS-
BRAVIN ASHWIN GUDKA..........................................1ST DEFENDANT
AKASH KIRIIT GUDKA..............................................2ND DEFENDANT
THE DISTRICT LAND REGISTRAR
TRANS MARA SUB-COUNTY....................................3RD DEFENDANT
THE DISTRICT LAND SURVEYOR,
TRANS-MARA SUB-COUNTY...................................4TH DEFENDANT
RULING
The Application before me is the Notice of Motion dated 3rd November, 2017 where the Applicant sought for orders of injunction restraining the Defendants from trespassing on, laying claim and constructing on and from interfering with the Plaintiffs occupation and possession of land parcel No. Trans- Mara/Oloirien/25 which has been sub-divided into land Parcel No. Trans Mara/Oloirien 92 pending the hearing and determination of the suit herein.
The Application was based on the grounds that the 2nd and 3rd Defendants herein have purchased approximately 200 acres of the suit land and that they have sub-divided the said parcel of land and have carried out massive removal of the vegetation of the aforesaid land without the authority of the Applicants.
The Application is further supported by the Affidavit of the Applicant who deponed that he is the registered proprietor of that parcel of land known as Trans Mara/Oloirien/25 measuring 265. 93 hectares and that sometimes in 2014 he approached one Jackson Katai to identify a buyer for approximately 50 acres and he was introduced to the 1st and 2nd Respondents who showed willingness to purchase the land and he was paid the sum of kshs. 400,000/- as down payment but before he could conclude the transaction a caution was placed on the title by his wife.
The Applicant further averred that in February, 2015 he learnt that the Respondents had secured the transfer of the suit in their own names and that the Respondents had used their influential position and that the transfer of the land was carried out fraudulently as he never obtained the consent of the Land Control Board to either sub divide the land and/or transfer to the Respondents.
The Application was opposed by the 1st and 2nd Respondents who filed a Replying Affidavit and they contend that the suit land was sold and transferred to them and that the instruments of transfer were lawfully executed by the Applicants and that prior to the transfer the Applicant executed a lawful Sale Agreement which the Applicant was fully aware of the terms and conditions of sale of the suit land.
The 1st and 2nd Respondents aver that by virtue of the Sale Agreement and subsequent transfer they are entitled to absolute and exclusive possession of the suit land and it is because of the above that they commenced to clear the suit land in preparation for cultivation.
The Respondents further aver that the Applicants had voluntarily signed the Sale Agreement and subsequent transfer instruments in the presence of Advocates and he had known the full tenor and purpose of what was signed. The Respondents lastly aver and contend that the suit land is currently in their names hence no orders of injunction can be granted against them.
I have read the Application before me and the submissions made by counsel for the parties. This being an Application for injunction the principle for the grant of the same have long been established in the case of GEILLA -VERSUS- CASSMAN BROWN which I will not reproduce herein.
The Applicant’s claim against the Respondents is that he sold a parcel of land measuring about 50 acres but later realized that the Respondents have a larger parcel than that was sold. I have seen the Sale Agreement which its execution is not disputed by both the parties and the portion sold was part of LR NO. TRANS MARA/OLORIEN/92 measuring 80. 92 ha for kshs. 13,000,000/- of which the Applicant acknowledged to have received the sum of kshs. 5,000,000/- and it is my finding that the Applicant from the contents of the sale agreement has not demonstrated that he has a prima facie case with probability of success.
On whether damages was an adequate remedy I find that this being a commercial transaction the Applicants claims can easily be quantified and damages will be an adequate compensation.
Lastly since the suit land is already registered in the name of the plaintiff I cannot see how an injunction can be issued in such a scenario as the balance of convenience in such a case tilts in favour of the Respondents.
In view of the above it is my finding that the Applicant has not satisfied the conditions for the grant of an injunction and the application dated 3rd November, 2017 is dismissed with costs.
Dated, Signed and Delivered in open court at NAROK on this 16th day of October, 2018
Mohammed Noor Kullow
Judge
16/10/18
In the presence of:-
Mr Ogutu for the Defendant/Respondent
Ms Adala for Kilele for the Plaintiff/Applicant
CA:Chuma