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ELCDismissedLand Case No. 37 of 2015· [2015] KEELC 351 (KLR)

Martin Ngomat v Dinah Jepkemboi Bartilol [2015] KEELC 351 (KLR)

Environment and Land Court
22 June 2015
EOE. Obaga
1,100 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land buyer lost his bid for a court injunction because a chief-brokered agreement couldn't override a deal made with a deceased estate's administrators.

What this practically means

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Executive summary

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The plaintiff moved the Environment and Land Court at Kitale by notice of motion dated 16th March 2015 seeking a temporary injunction restraining the defendant from interfering with 61 acres out of plot No.5 at Ndalala Settlement Scheme. The defendant, a widow and administratrix of the estate of the late John Kiptum Bartilol (owner of the 100-acre plot), had under a sale agreement dated 27.12.2005 agreed to sell 50 acres to the plaintiff for Kshs.4,000,000/=, of which the plaintiff paid Kshs.800,000/= at signing and took possession in 2006. Following family disputes over the sale (a second wife of the deceased having been excluded from the succession cause), a meeting before the local chief on 7.3.2015 resolved that the plaintiff would keep 25 acres and utilise a further 36 acres for five years to recover Kshs.925,000/= he had paid. The defendant's son then ploughed 25 acres, uprooting the plaintiff's sugarcane, prompting the application. The defendant opposed, contending only Kshs.2,010,000/= of the purchase price had been paid, that the whole land had been leased to a third party, that the 7.3.2015 agreement was not binding as it was not entered into by the administrators, and that the estate's grant was unconfirmed. Applying the settled principles for temporary injunctions, the court found no prima facie case: the chief was not the estate's administrator and had no authority to vary the agreement, and any variation had to involve those who sold the land. The applicant had also conceded non-payment of the balance, and damages would be an adequate remedy since he had already lost 25 acres. The application was dismissed with costs to the respondent.

Key legal issues

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01

Prima facie case for temporary injunction

Holding

The applicant had no prima facie case based on the agreement of 7.3.2015 reached before the chief, as the chief and the family members were not administrators of the estate and had no authority to vary the sale agreement.

Reasoning

The court held that the original sale agreement was entered into by one of the administratrixes of the estate. Any variation of that agreement had to involve the persons with authority, namely the administrators. The 7.3.2015 agreement before the local chief did not involve the administrators and the chief had no authority to vary contractual terms. Chiefs may resolve disputes, but only within the confines of the law.

p. 2
02

Irreparable loss and adequacy of damages

Holding

The applicant would not suffer irreparable loss not compensable in damages; damages would be an adequate remedy if he ultimately succeeded.

Reasoning

The applicant had already been dispossessed of 25 acres which had been ploughed by the respondent's son. Since the event the injunction sought to prevent had already happened, and the claim was capable of quantification in money, the court found damages to be an adequate remedy and declined to grant the injunction.

p. 2

Legal principles established

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  • The principles for grant of a temporary injunction are: prima facie case with probability of success; irreparable loss not compensable in damages; and balance of convenience if in doubt.
  • An agreement affecting an estate can only be varied by persons with authority, i.e. the administrators of the estate; an agreement cannot be changed by strangers to it.
  • An injunction cannot be granted where the event it is intended to prevent has already occurred, and the purpose of a temporary injunction is to preserve the subject matter.

Court orders

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  1. 1.The applicant's notice of motion dated 16th March, 2015 seeking a temporary injunction is dismissed
  2. 2.Costs of the application awarded to the respondent
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land

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, "Martin Ngomat v Dinah Jepkemboi Bartilol [2015] KEELC 351 (KLR)", Case Analysis (2015). Land Case No. 37 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/351/eng@2015-06-22

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