Kipkirui L. Tanui Binot v Ezekiel Kipkulei C. Komen [2014] KEELC 328 (KLR)
The bottom line
#A Nairobi flat buyer who paid in full won a court order freezing the property and the seller's money until the dispute is resolved.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant established a prima facie case for an interlocutory injunction
Yes - the applicant tendered uncontroverted evidence of a sale agreement for Kshs.5,300,000 and full payment of the purchase price, and the respondent did not enter appearance.
The court reviewed the material placed before it and counsel's submissions, and was persuaded that the applicant demonstrated a prima facie case with a probability of success. The applicant exhibited the sale agreement, proof of payment of the full purchase price, and an addendum. The evidence was uncontroverted because the respondent, though served, neither entered appearance nor filed a response. It would be unfair to allow the respondent to retain the applicant's money while also enjoying rental income from the flat.
Whether the balance of convenience favoured the grant of the injunction
Yes - discretion had to favour the applicant, given the tenant paying rent and the risk of the respondent benefiting from the property while withholding transfer.
Having found a prima facie case, the court found that the balance of convenience favoured the applicant. The suit property had a tenant paying Kshs.40,000 monthly rent, and the respondent had demanded an additional Kshs.1,500,000 beyond the agreed price despite receiving full payment. It would be inequitable to allow the respondent to continue collecting rent and dealing with the property pending trial.
Whether the second application for deposit of completion documents was properly on file for hearing
No - the court declined to consider it because the respondent was not personally served and no substituted service order had been obtained.
The process server deponed that the respondent avoided personal service, and service was effected instead on the firm of Kiplenge and Kurgat Advocates on 3rd February 2014. However, no application for substituted service was made, and the respondent had not retained that firm to act in the suit. Service on that firm was therefore of no effect, and the court deemed it inappropriate to consider the second application.
Legal principles established
#- The conditions for grant of an interlocutory injunction are as set out in Giella v Cassman Brown: prima facie case with probability of success; irreparable loss not adequately compensable in damages; and if in doubt, the balance of convenience.
- The Giella principles are to be applied sequentially - the court need not consider the second and third principles if it finds a prima facie case.
Court orders
#- 1.A temporary injunction issued restraining the respondent, his agents, servants, employees and or proxies from wasting, damaging, alienating, disposing off, selling and or transferring all that flat situate in Nairobi District known as Madaraka MF14-L Flat pending the hearing and determination of the suit
- 2.The respondent ordered to deposit the amount of Kshs.5,300,000 received from the applicant in an interest earning account in joint names with the applicant within 14 days from the date of the order
- 3.The respondent ordered to deposit rent collected from the suit property effective 1st July, 2014 in the same account until the final determination of the case, with execution to follow on failure to deposit
- 4.Costs of the application awarded to the applicant
- 5.The second application dated 19th December, 2013 not considered/declined for improper service
- Jurisdiction invoked
- Order 51 Rule 1, Order 40 Rules 1, 2, 4 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act (inherent jurisdiction); original civil jurisdiction of the High Court/ELC over land disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kipkirui L. Tanui Binot v Ezekiel Kipkulei C. Komen [2014] KEELC 328 (KLR)", Case Analysis (2014). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/328/eng@2014-06-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.