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Court of AppealDismissedCivil Appeal No. 116 of 2014· [2017] KECA 312 (KLR)

Thomas Ratemo Oira v Andrew Isoe Mingate Ochoki [2017] KECA 312 (KLR)

Court of Appeal of Kenya
27 September 2017
GKG.B.M. KariukiFSF. SichaleSKS. ole Kantai
1,037 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that a land seller whose buyer's cheques bounced can block the buyer from using or interfering with the land until trial.

What this practically means

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Executive summary

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The respondent owned land known as Nakuru/Miti/38 in the Miti Mingi Settlement Scheme. In 2009 the appellant, an advocate of the High Court, agreed to purchase it for Kshs.1,500,000 payable by two cheques plus payments to the Settlement Fund Trustees. The respondent handed over all title documents, but both cheques were returned unpaid with the remark 'confirmation awaited'. In the interim the appellant registered a transfer in his own name and moved onto the land. The respondent sued in the Environment and Land Court at Nakuru seeking a declaration of ownership, an injunction and cancellation of the title, and obtained from Waithaka, J. an interlocutory injunction restraining the appellant from entering or interfering with the land pending trial. The appellant, listing 42 grounds, appealed to the Court of Appeal. The Court found the grounds were not true grounds of appeal but a recitation of evidence for trial. On the merits, the appellant's own replying affidavit admitted the cheques were dishonoured and no reasonable explanation was given for failing to secure bank confirmation; the Court also noted later attempts apparently to replace the cheques when land values may have risen. Holding that the trial Judge was entitled to protect a vendor who had received no consideration, the Court dismissed the appeal with costs to the respondent, leaving the main suit to proceed to trial.

Key legal issues

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01

Whether the interlocutory injunction issued by the trial court should be upheld

Holding

The injunction was properly issued to preserve the suit land pending trial, as the vendor had not received consideration for the sale.

Reasoning

The appellant admitted issuing two cheques totalling Kshs.1,500,000 as the purchase price, both of which were returned unpaid with the remark 'confirmation awaited'. He offered no reasonable explanation for failing to give his bank the requisite confirmation, and there were indications of later attempts to replace the cheques when land values may have escalated. Given the suit had not been heard, the appellate court declined to make definitive findings on those issues, but held the Judge was entitled to protect the vendor by injunction.

p. 2
02

Whether the 42 grounds of appeal were proper grounds of appeal

Holding

They were not; they were a recitation of evidence for the trial, not grounds of appeal under the Court's rules.

Reasoning

The court perused the grounds and found they did not assail the ruling on any recognizable ground of appeal but merely catalogued evidence the appellant wished to produce at the trial of the main suit. Such grounds disclose no arguable appellate issue and could not sustain the appeal.

p. 2

Legal principles established

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  • A trial court may properly grant an injunction to preserve land pending hearing where a vendor has handed over transfer documents in good faith but the cheques given as consideration were dishonoured on presentation and no consideration was received.
  • Grounds of appeal that merely recite evidence a party intends to produce at trial, rather than attacking the decision on law or fact, are not grounds of appeal as envisaged by the rules of the Court.

Court orders

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  1. 1.Appeal dismissed with costs to the respondent
On appeal from
High Court of Kenya at Nakuru (Environment and Land Court)
E.L.C. Case No. 222 of 2013
Jurisdiction invoked
First appellate jurisdiction over appeals from the High Court under the Court of Appeal's statutory appellate powers

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Thomas Ratemo Oira v Andrew Isoe Mingate Ochoki [2017] KECA 312 (KLR)", Case Analysis (2017). Civil Appeal No. 116 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/312/eng@2017-09-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.