[2018] KEELC 358 (KLR)
The court found that the plaintiff had established a prima facie case based on the sale agreement, which was executed in the presence of an advocate and attested to by the advocate as having been signed by the 1st defendant. The court was not persuaded by the 1st defendant's denial of signing the agreement. Given...
Source-derived case information.
- Citation
- [2018] KEELC 358 (KLR)
- Parties
- Plaintiff: Teresia Gathoni Nderitu; Defendant: Gichuru Kamotho; Defendant: Naivasha District Land Registrar
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 439 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Injunction
- Outcome
- interlocutory injunction granted in favour of the plaintiff; order of inhibition declined; costs to the plaintiff.
- Judges
- DO Ohungo
- Legal Topics
- Interlocutory Injunctions, Sale of Land, Specific Performance, Land Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Teresia Gathoni Nderitu
Plaintiff
Gichuru Kamotho
Defendant
Naivasha District Land Registrar
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the plaintiff has established a prima facie case to warrant the grant of a temporary injunction restraining the 1st defendant from dealing with the suit property pending determination of the suit.
- 2 Whether damages would be an adequate remedy for the plaintiff if the injunction is not granted.
- 3 Whether an order of inhibition can be issued against parcels not yet registered.
Ratio Decidendi
The court found that the plaintiff had established a prima facie case based on the sale agreement, which was executed in the presence of an advocate and attested to by the advocate as having been signed by the 1st defendant. The court was not persuaded by the 1st defendant's denial of signing the agreement. Given the circumstances, the court determined that it was necessary to preserve the suit property and that damages would not be an adequate remedy. However, the court declined to grant an order of inhibition because there was no evidence that the suit parcels existed on the land register, making such an order ineffective. Consequently, the court granted a temporary injunction...
Court Disposition
interlocutory injunction granted in favour of the plaintiff; order of inhibition declined; costs to the plaintiff.
Orders
- An injunction is granted restraining the 1st defendant, his agents and/or servants from selling, transferring or alienating Land Parcel No. Naivasha/Municipality Block 4/170 and 171 pending hearing and determination of this suit.
- Costs of the application shall be borne by the 1st defendant.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAKURU
CASE No. 439 OF 2017
TERESIA GATHONI NDERITU......................................PLAINTIFF
VERSUS
GICHURU KAMOTHO............................................1ST DEFENDANT
NAIVASHA DISTRICT LAND REGISTRAR.......2ND DEFENDANT
RULING
1. By Notice of Motion dated 18th November 2017, the plaintiff sought the following orders:
a) Spent.
b) Spent.
c) That this honourable court be pleased to issue an order of temporary injunction restraining the 1st respondent either by himself, agents and/or servants howsoever from selling, transferring, alienating, dealing with or otherwise interfering with Land parcel No. Naivasha/Municipality 4/41 formerly L.R 1144/1/IX and specifically plots number 170 and 171 pending the hearing and determination of this suit.
d) Spent.
e) That this honourable court be pleased to issue an order of inhibition against land parcel No. Naivasha/Municipality Block 4/41 formerly L.R 1144/1/IX and/or specifically plots number 170 and 171 pending the hearing and determination of this suit.
f) That the costs of this application be borne by the respondents.
2. The application was supported by an affidavit sworn by the plaintiff. The 1st defendant opposed the application through his replying affidavit sworn on 5th December 2017. The 2nd defendant did not respond to the application and did not participate in its hearing.
3. The plaintiff contends that on 8th July 2011 the 1st defendant who is her brother in-law, sold to her two 50 by 100 plots at a total consideration of Kshs.1, 000, 000 pursuant to a sale agreement of that date. The two plots were identified as G and H (the suit properties) in the sale agreement and were excised from Plot No. Naivasha/Municipality Block 4/41 which has since been subdivided and the suit properties are now known as plot 170 and 171. She further contends that despite overpaying the purchase price, the 1st defendant has failed to complete the transaction by ensuring registration of the suit properties in her favour.
4. On her part, the 1st defendant denies ever signing the sale agreement and disputes the plaintiff’s allegations as regards the mode of payment of the purchase price.
5. The law on interlocutory injunctions is settled. An applicant seeking such an order must satisfy the test in Giella –vs- Cassman Brown & Co. Ltd [1973] E.A 358. He must establish a prima facie case with a probability of success. Even if a prima facie case is established, an injunction would not to issue if damages can adequately compensate him. Finally, if the court is in doubt as to the answers to the above two tests then the court would determine the matter on a balance of convenience. As was recently held by the Court of Appeal in Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR, all the three Giella conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially and that if prima faciecase is not established, then irreparable injury and balance of convenience need no consideration.
6. I have perused the sale agreement dated 8th July 2011. It was executed in the presence of an advocate. Although the 1st defendant denies signing it, the advocate attested to signature of the agreement by vendor by the name of Gichuru Kimotho. In the circumstances, I am persuaded that it is necessary to preserve the suit property and that the plaintiff has established a prima facie case. I do not think that damages would be an adequate remedy.
7. The plaintiff has sought an order of inhibition. There is however no evidence that the parcels known as Naivasha/Municipality Block 4/170 and 171 exist on the register. In fact, going by the plaintiff’s version of events, it appears that the two parcels are yet to be registered. An order of inhibition would thus not be efficacious since it cannot be registered against non-existent parcels.
8. In the end, I grant an injunction restraining the 1st defendant whether by himself, his agents and/or servants from selling, transferring or alienating Land Parcel No. Naivasha/Municipality Block 4/170 and 171 pending hearing and determination of this suit. Costs of the application shall be borne by the 1st defendant.
Dated, signed and delivered in open court at Nakuru this 11th day of December 2018.
D. O. OHUNGO
JUDGE
In the presence of:
Mr Bore holding brief for Mr Kipkoech for the plaintiff/applicant
Ms Amulabu holding brief for Mr Otieno for the 1st defendant/respondent
No appearance for the 2nd defendant/respondent
Court Assistants: Gichaba & Lotkomoi