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ELCAllowedNot stated in the judgment (Notice of Motion dated 31st July, 2013 within the main suit)· [2014] KEELC 245 (KLR)

George Kinyanjui Muriithi v Grace Rodah Osome & 4 others [2014] KEELC 245 (KLR)

Environment and Land Court
11 July 2014
LWL N Waithaka
1,470 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court blocked the sale of land charged to a lender because the owner showed his fraud claims might succeed at trial.

What this practically means

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Executive summary

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The plaintiff, registered owner of Njoro/Ngata Block 1/5014 (with an incomplete four-bedroomed house) and Njoro/Ngata Block 1/5105 (vacant), alleged that through a broker he agreed to sell both parcels to the 1st defendant, Grace Rhodah Osome, for Kshs.5,600,000, payable partly on execution and partly on completion. He alleged the 1st defendant paid only a token sum, altered the agreement to show a purchase price of Kshs.5,000,000 already paid in full, fraudulently obtained the original titles, procured registration of the parcels in her name, and then charged the first suit parcel to the 2nd defendant to secure a Kshs.2,000,000 loan she has since defaulted on, prompting an auctioneer's notice. The 1st defendant insisted she paid the full purchase price; the 2nd defendant asserted due diligence and a valid registered charge entitling it to exercise its statutory power of sale. The plaintiff sought a temporary injunction restraining the 2nd defendant from selling or dealing with the first suit parcel. Applying the Giella v Cassman Brown principles and the Mrao definition of a prima facie case, the court held that conflicting affidavit evidence required testing at trial, but that the plaintiff had shown a case that may succeed, and that an auction would cause irreparable loss not compensable in damages. The balance of convenience limb was not reached. The motion dated 31st July, 2013 was allowed with costs to the plaintiff.

Key legal issues

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01

Whether the plaintiff met the Giella v Cassman Brown principles for a temporary injunction

Holding

The plaintiff established a prima facie case with probability of success and irreparable harm; the third limb (balance of convenience) did not need consideration.

Reasoning

The plaintiff produced sale agreements, transfer forms, auctioneer's notification and a charge sheet, while the 1st defendant's alleged full payment and the 2nd defendant's charge required testing by cross-examination at trial. Preservation of the first suit parcel was necessary because an auction would strip the plaintiff of the chance to recover land whose loss damages could not adequately compensate given his claim lies against the 1st defendant.

p. 3
02

Whether irreparable damage would follow if the injunction were withheld

Holding

Yes; the 2nd defendant had admitted intention to auction the first suit parcel, and its sale would extinguish the plaintiff's opportunity to recover the property.

Reasoning

The court noted that if the land was sold by public auction, the applicant would lose the opportunity to recover it, a loss not easily compensable in damages because the plaintiff's substantive claim is against the 1st defendant, not the 2nd. This satisfied the second Giella limb.

p. 3

Legal principles established

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  • A prima facie case is more than an arguable case; the evidence must show an infringement of a right and a probability of success at trial.
  • At the interlocutory stage, the applicant need only demonstrate a case that may succeed, not one that must succeed.

Court orders

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  1. 1.The Notice of Motion dated 31st July, 2013 is allowed, granting the injunction restraining the 2nd defendant, its agents and/or servants from selling, transferring or in any way dealing with Njoro/Ngata Block 1/5014 pending the hearing and determination of the suit
  2. 2.Costs of the application to the plaintiff

Authorities

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Cases cited (2)

  • Giella v Cassman Brown & Co Ltd
    (EA) 358
  • Mrao v First American Bank
    (2003) KLR 125
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over suit land Njoro/Ngata Block 1/5014 and 1/5105; interim relief under the court's inherent/procedural powers (provision not specified in the judgment)

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, "George Kinyanjui Muriithi v Grace Rodah Osome & 4 others [2014] KEELC 245 (KLR)", Case Analysis (2014). Not stated in the judgment (Notice of Motion dated 31st July, 2013 within the main suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/245/eng@2014-07-11

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