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ELCDismissedNot stated in the judgment· [2015] KEELC 748 (KLR)

Caliph properties limited v Barbel Sharma & another [2015] KEELC 748 (KLR)

High Court of Kenya
10 April 2015
MGMARY M. GITUMBI
1,675 words in judgment
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The bottom line

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Kenya's High Court refused to protect a land buyer who sat on transfer documents for two years, showing courts won't help parties who don't fulfil their own contract obligations.

What this practically means

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Executive summary

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The Plaintiff sought a temporary injunction restraining the Defendants from dealing with L.R. No. 1/921 Kasuku Road, Nairobi, an order of inhibition, and leave to amend its plaint to add Leonard Kameiwa Njenga as 2nd Defendant. The Plaintiff relied on a Sale Agreement dated 6th January 2010 with the 1st Defendant for sale of a portion of approximately sixty square metres to be excised from the suit property, and complained that the 1st Defendant sold the whole property to the 2nd Defendant without notice. The 1st Defendant admitted the agreement but contended she had released all completion documents to the Plaintiff, which held them for over two years and returned them unregistered without explanation, whereupon the sale abated and she sold to the 2nd Defendant, an alleged innocent purchaser for value without notice who bought for Kshs. 60 million. Applying Giella v Cassman Brown and Mrao v First American Bank, the court found the Plaintiff had no genuine and arguable case: it failed to perform its own contractual obligation to present the completion documents for registration, and a party in default cannot obtain an injunction (Kenya Breweries Ltd v Okeyo; Kyangaro v KCB). Equitable remedies also require clean hands. The enquiry being sequential (Kenya Commercial Finance Co. Ltd v Afraha Education Society), the court did not consider the other Giella conditions. The application was dismissed with costs to the Defendants.

Key legal issues

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01

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

Holding

No - the Plaintiff claimed under a Sale Agreement but unexplainedly returned the completion documents unregistered after holding them for two years, so it has no genuine and arguable case

Reasoning

The 1st Defendant conceded the Sale Agreement but showed she had released all completion documents to the Plaintiff. The Plaintiff held them for over two years, returned them unregistered without explanation, and then sued claiming the same portion. The court held a party who fails to perform its contractual obligations cannot obtain an injunction, and equity does not aid such a party. The Plaintiff therefore lacked a prima facie case.

p. 3
02

Whether the court should proceed to the other Giella conditions

Holding

No - the enquiry is sequential and failure of the first condition disposes of the application

Reasoning

Relying on Kenya Commercial Finance Co. Ltd v Afraha Education Society, the court held that since the Plaintiff failed to prove a prima facie case, the court need not consider irreparable harm or the balance of convenience. The application therefore failed in its entirety.

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 enquiry into the Giella conditions is sequential; the second condition is addressed only if the first is satisfied
  • A contracting party who fails to perform his part of the contract cannot obtain an injunction to restrain breach by the other party
  • He who comes to equity must come with clean hands and must do equity, fulfilling substantially all outstanding obligations before insisting on rights

Court orders

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  1. 1.The Notice of Motion dated 2nd December 2013 is dismissed
  2. 2.Costs of the application awarded to the Defendants
Jurisdiction invoked
Inherent jurisdiction of the High Court to grant interlocutory relief in an original civil suit

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, "Caliph properties limited v Barbel Sharma & another [2015] KEELC 748 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/748/eng@2015-04-10

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