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ELCDismissedNot stated in judgment· [2015] KEELC 728 (KLR)

Joseph Ngunjiri Gachimu v Josephine Wairimu Kagunda & 2 others [2015] KEELC 728 (KLR)

Environment and Land Court
20 March 2015
MGMARY M. GITUMBI
2,263 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a land buyer's injunction because paying slowly without registering a transfer gave him no legally protected interest in the property.

What this practically means

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Executive summary

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The Plaintiff, Joseph Ngunjiri Gachimu, moved the court by Notice of Motion dated 4th April 2014 seeking a temporary injunction restraining the Defendants from entering land known as Kikuyu/Kikuyu Block 2/(Ondiri 24), and a prohibitory order restraining its sale, charging or disposal pending trial. He relied on a sale agreement dated 10th October 2011 with the 1st Defendant at Kshs. 600,000/-, later increased to Kshs. 950,000/-, all of which he said he paid, yet the 1st Defendant declined to furnish completion documents and instead sold the property to the 2nd and 3rd Defendants. The 1st Defendant, Josephine Wairimu Kagunda, conceded the agreement but contended the Plaintiff repeatedly defaulted on payments, that she gave him an ultimatum to accept a refund or a price increase, and that she ultimately gave notice of repossession and offered a refund which he declined. Applying Giella v Cassman Brown and Mrao v First American Bank, the court examined whether the Plaintiff had a prima facie case. Relying on sections 36 and 37 of the Land Registration Act, it held that no transfer having been registered, the Plaintiff had no interest in the land; the unregistered sale agreement operated only as a contract. Specific performance was doubtful at this stage given the Plaintiff's own delay of about two years in paying and the hardship an order would impose on the 2nd and 3rd Defendants, now registered proprietors. The Plaintiff therefore failed to establish a genuine and arguable case or a prima facie case with high chances of success, and following Kenya Commercial Finance Co. Ltd v Afraha Education Society the court did not consider the remaining Giella conditions. The application was dismissed with costs in the cause.

Key legal issues

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01

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

Holding

He did not; his claimed interest arises only from an unregistered sale agreement which operated merely as a contract, and specific performance was doubtful at the interlocutory stage given his own delay in payment and the subsequent registration of the property in the 2nd and 3rd Defendants' names

Reasoning

The court held that under sections 36 and 37 of the Land Registration Act, no transfer having been registered, the Plaintiff acquired no registrable interest; the sale agreement operated only as a contract. Specific performance, being discretionary and equitable, would likely be refused given the Plaintiff's two-year delay in paying the purchase price and the hardship to the 2nd and 3rd Defendants. Hence no genuine and arguable case was shown.

p. 4
02

Whether the temporary injunction and prohibitory order should issue

Holding

Dismissed because the first Giella condition failed and the enquiry is sequential

Reasoning

Having found no prima facie case, the court declined to consider irreparable injury or balance of convenience, relying on Kenya Commercial Finance Co. Ltd v Afraha Education Society on the sequential nature of the Giella test. The application was dismissed with costs in the cause.

p. 4

Legal principles established

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  • Conditions for grant of an interlocutory injunction: prima facie case with probability of success, irreparable injury not compensable by damages, and balance of convenience if in doubt
  • The Giella inquiry is sequential; failure of the first condition disposes of the application
  • An unregistered instrument disposing of land cannot transfer any right or interest, but may operate as a contract

Court orders

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  1. 1.The Notice of Motion dated 4th April 2014 is dismissed
  2. 2.Costs shall be in the cause

Authorities

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Legislation

  • Land Registration ActSection 36(1)
  • Land Registration ActSection 36(2)
  • Land Registration ActSection 37

Cases cited (5)

  • Giella v Cassman Brown
    (1973) EA 358
  • Mrao v First American Bank of Kenya Limited & 2 Others
    (2003) KLR 125
  • Reliable Electrical Engineers (K) Ltd v Mantrac Kenya Limited
    (2006) eKLR
  • Lammers v Kamunge
    Civil Appeal No.125 of 1990
  • Kenya Commercial Finance Co. Ltd v Afraha Education Society
    (2001) 1 EA 86
Jurisdiction invoked
Inherent jurisdiction to grant interlocutory injunctions (Giella v Cassman Brown principles); Land Registration Act

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, "Joseph Ngunjiri Gachimu v Josephine Wairimu Kagunda & 2 others [2015] KEELC 728 (KLR)", Case Analysis (2015). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/728/eng@2015-03-20

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