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ELCDismissedNotice of Motion dated 29th August 2013 (suit over Sub-plot B hived off from L.R. No. 5892/22, Karen)· [2015] KEELC 697 (KLR)

Deborah Achieng Aduda & another v Florence Seyanoi Kibera a.k.a. Dorothy Seyano Moschion [2015] KEELC 697 (KLR)

High Court of Kenya
13 February 2015
MGMARY M. GITUMBI
1,440 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court refused buyers' bid to block dealings in a Karen plot because their sale agreement had apparently been rescinded for missed payments.

What this practically means

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Executive summary

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The Plaintiffs, a husband and wife, applied by Notice of Motion dated 29th August 2013 for a temporary injunction restraining the Defendant from dealing with Sub-plot B, a 1-acre parcel hived off from L.R. No. 5892/22 in Karen, a mandatory injunction compelling her to grant them possession, and an order of inhibition. They relied on a Sale Agreement dated 16th February 2012 under which they purchased the property for Kshs. 28,000,000/-, paid a deposit of Kshs. 10 million, and were to pay the balance in monthly installments of US$1,750. They alleged the Defendant refused to give possession, leased the property to third parties, and was criminally charged with obtaining the deposit by false pretenses. The Defendant denied the claim, asserting that the agreement was rescinded on 2nd August 2012 after the Plaintiffs failed to pay installments, that the suit property was not identifiable, and that the Plaintiffs refused a refund of their deposit. Applying the Giella v Cassman Brown conditions, the court held that the Plaintiffs had not demonstrated a prima facie case with a probability of success, as it was inclined to accept that the Sale Agreement had been rescinded and the Plaintiffs had no claim over the suit property. Following the sequential approach in Kenya Commercial Finance Co. Ltd v Afraha Education Society, the court did not consider irreparable injury or balance of convenience. The mandatory injunction and inhibition were also refused. The application was dismissed with costs in the cause.

Key legal issues

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01

Whether the Plaintiffs established a prima facie case with probability of success

Holding

They did not; the court was inclined to believe the Defendant that the Sale Agreement was rescinded, leaving the Plaintiffs with no apparent claim over the suit property

Reasoning

The suit property is registered in the Defendant's name and was claimed under a Sale Agreement dated 16th February 2012 for Kshs. 28,000,000/-. The Defendant acknowledged receiving a Kshs. 10 million deposit but contended the agreement was rescinded on 2nd August 2012 for non-payment of installments. At the interlocutory stage the court avoided a definitive finding on validity of the claim, but was inclined to accept the rescission, concluding the Plaintiffs had no prima facie case.

p. 3
02

Whether the ancillary reliefs of mandatory injunction and inhibition should issue

Holding

Both refused, following the failure of the first Giella condition

Reasoning

Since the Plaintiffs failed to establish a prima facie case, the court did not proceed to consider irreparable injury or balance of convenience, applying the sequential approach from Kenya Commercial Finance Co. Ltd v Afraha Education Society. Both the mandatory injunction and the inhibition were declined on the same basis.

p. 3

Legal principles established

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  • The conditions for granting an interlocutory injunction are prima facie case with probability of success, irreparable injury not compensable by damages, and balance of convenience if in doubt
  • The Giella conditions are sequential: failure on the first ground obviates consideration of the others

Court orders

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  1. 1.Application dismissed
  2. 2.Costs in the cause

Authorities

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Cases cited (3)

  • GIELLA versus CASSMAN BROWN
    (1973) EA 358
  • MRAO versus FIRST AMERICAN BANK OF KENYA LIMITED & 2 OTHERS
    (2003) KLR 125
  • Kenya Commercial Finance Co. Ltd versus Afraha Education Society
    (2001) 1 EA 86
Jurisdiction invoked
Inherent civil jurisdiction of the High Court over interlocutory applications in a land dispute

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, "Deborah Achieng Aduda & another v Florence Seyanoi Kibera a.k.a. Dorothy Seyano Moschion [2015] KEELC 697 (KLR)", Case Analysis (2015). Notice of Motion dated 29th August 2013 (suit over Sub-plot B hived off from L.R. No. 5892/22, Karen). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/697/eng@2015-02-13

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