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ELCDismissedNot stated in judgment (Notice of Motion dated 24th June 2014)· [2015] KEELC 770 (KLR)

Edward Kinuthia Muchene & another v Simon Macharia Muchene & another [2015] KEELC 770 (KLR)

High Court of Kenya
15 May 2015
1,773 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiffs moved by Notice of Motion dated 24th June 2014 seeking a temporary injunction restraining the defendants from alienating, transferring, selling or interfering with land parcel Dagoretti/Ruthimitu/1282 pending trial. They relied on a sale agreement of 16th May 2011 over a portion to be excised from Dagoretti/Ruthimitu/1039, alleging payment of Kshs.4,130,000 (or 4,180,000) of the purchase price and breach by the defendants of the agreement. In the amended plaint they also sought specific performance, or alternatively a refund with interest at 15% p.a. The defendants admitted the agreement but contended it was vague and incapable of performance, citing variances between the agreed area (0.0180 ha), the plaint claim and the mutation form (0.16 ha), and further argued that the transaction was controlled under section 6 of the Land Control Act and, no Land Control Board consent having been obtained, it became void and unenforceable. Applying Giella v Cassman Brown, the court held the plaintiffs had no prima facie case: the variances in area were unexplained, and no consent application or consent was exhibited, rendering the void transaction unenforceable and specific performance unavailable. Damages would be adequate, as shown by the plaintiffs' own alternative claim for refund and interest. The application was dismissed with costs to the defendants. The suit itself proceeds to trial.

Key legal issues

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01

Whether the plaintiffs demonstrated a prima facie case with a probability of success

Holding

They did not: the sale agreement was vague as to the portion sold, with unexplained variances between the area in the agreement (0.0180 ha), the plaint claim and the mutation form (0.16 ha), and the transaction was controlled and void for want of Land Control Board consent

Reasoning

The agreement of 16th May 2011 described the subject matter as a plot measuring 0.0180 Ha to be excised from Dagoretti/Ruthimitu/1039, yet the plaintiffs claimed parcel 1282 shown in the mutation as 0.16 ha. No sketch plan annexed. Further, being agricultural land, the transaction was controlled under section 6 of the Land Control Act; no consent application or consent was exhibited, so the transaction became void after six months and unenforceable.

p. 3
02

Whether the plaintiffs would suffer irreparable damage not compensable in damages

Holding

They would not; the plaintiffs' own alternative plea for refund of the deposit and interest showed damages would be an adequate remedy

Reasoning

The court noted that in the amended plaint the plaintiffs pleaded in the alternative for refund of the deposit and interest. This acknowledgment demonstrated that damages would adequately compensate them should they succeed at trial, defeating the second Giella condition.

p. 3

Legal principles established

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  • An application for Land Control Board consent in respect of a controlled transaction must be made within six months of the agreement, failing which the transaction becomes void for all purposes and unenforceable
  • A court cannot enforce a void contract; specific performance is unavailable for want of the requisite Land Control Board consent
  • An applicant for an interim injunction must establish a prima facie case with probability of success and irreparable damage not compensable by damages, failing which the balance of convenience may be considered (Giella v Cassman Brown)

Court orders

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  1. 1.Dismissed the plaintiffs' Notice of Motion dated 25th June 2014 with costs to the defendants

Authorities

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Legislation

  • Land Control Act (Cap 302, Laws of Kenya)section 6(1)(a)
  • Land Control Act (Cap 302, Laws of Kenya)section 8(1)

Cases cited (1)

  • GIELLA – VS CASSMAN BROWN & CO. LTD
    (1973) EA 358
Jurisdiction invoked
Original civil jurisdiction over the suit land and the interlocutory application (not expressly invoked in the judgment)

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, "Edward Kinuthia Muchene & another v Simon Macharia Muchene & another [2015] KEELC 770 (KLR)", Case Analysis (2015). Not stated in judgment (Notice of Motion dated 24th June 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/770/eng@2015-05-15

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