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ELCAllowedNotice of motion dated 9th April 2014· [2014] KEELC 290 (KLR)

Edgar Erick Omoto & Seven (7) Others v Samuel Kisorio Moiben [2014] KEELC 290 (KLR)

High Court of Kenya
31 July 2014
EOE. OBAGA
1,007 words in judgment
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The bottom line

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A landowner who sold plots, handed buyers possession, and let them build cannot later call them trespassers—the Kitale High Court barred him from selling the land.

What this practically means

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Executive summary

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Eight applicants who between 2002 and 2012 purchased portions of LR No. 18894 (Grant No. 77488), Kitale Municipality, from the respondent sought an interlocutory injunction by notice of motion dated 9 April 2014 restraining the respondent from selling, alienating, disposing of, subdividing, transferring or otherwise dealing with the land pending hearing of the main suit. The applicants paid the full purchase price, were put in possession, built homes, and relied on the respondent's written undertaking of 16 July 2013 to surrender the original title for subdivision and issuance of individual titles, which he breached. The respondent opposed via grounds of opposition, arguing the applicants were trespassers because the transactions lacked land control board consent, rendering the contracts void and incapable of specific performance. Justice E. Obaga restated the settled principles for granting injunctions: prima facie case with probability of success, irreparable injury not compensable in damages, and balance of convenience. Finding the sale agreements undisputed and the applicants in possession with extensive developments at the respondent's instance, the court held the respondent could not characterize the purchasers as trespassers. Applying Steadman v Steadman and the Court of Appeal's decision in Macharia Mwangi Maina & 87 others v Davidson Mwangi Kagiri on transactions lacking land control board consent, the court found the applicants had an arguable case whose rights would likely be infringed without an injunction. The court allowed the application and granted an injunction in terms of prayers (c) and (d) of the notice of motion. Judgment delivered at Kitale on 31 July 2014.

Key legal issues

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Prima facie case for interlocutory injunction

Holding

Applicants who bought land, were put in possession and developed it established an arguable case notwithstanding want of land control board consent, warranting an injunction.

Reasoning

The court applied the settled Giella-type principles: prima facie case, irreparable injury, balance of convenience. Sale agreements annexed and the respondent's own admission of the sales established an arguable case. The respondent's attempt to rely on want of land control board consent failed because he put the purchasers in possession and they built homes in reliance on the agreement, invoking the principle in Steadman v Steadman that a party cannot resile from an agreement on which the other party incurred expense. The court found the applicants' rights likely to be infringed absent an injunction and granted prayers (c) and (d).

p. 2

Legal principles established

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  • A vendor who puts a purchaser in possession cannot later allege the purchaser is a trespasser, even where land control board consent was not obtained.

Court orders

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  1. 1.Injunction granted in terms of prayer (c) of the notice of motion dated 9/4/2014
  2. 2.Injunction granted in terms of prayer (d) of the notice of motion dated 9/4/2014, restraining the respondent from selling, alienating, disposing of, subdividing, transferring or otherwise dealing with LR No. 18894 (Grant No. 77488) other than with the applicants pending hearing of the main suit

Authorities

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Cases cited (2)

  • Steadman -Vs – Steadman
    (1976) AC 536 at 540
  • Macharia Mwangi Maina & 87 others and Davidson Mwangi Kagiri
    [2014] eKLR, Civil Appeal No. 6 of 2011 consolidated with Civil Appeal No. 26 and 27 of 2011
Jurisdiction invoked
Inherent jurisdiction of the High Court over land disputes; notice of motion in a pending main suit

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Edgar Erick Omoto & Seven (7) Others v Samuel Kisorio Moiben [2014] KEELC 290 (KLR)", Case Analysis (2014). Notice of motion dated 9th April 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/290/eng@2014-07-31

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