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ELCAllowedNotice of motion dated 29th September 2015 (suit re Plot No.19/20 Kodiaga Market)· [2016] KEELC 324 (KLR)

William Okiyah Okech v Damaris Kavinza Okeyo & 2 others [2016] KEELC 324 (KLR)

Environment and Land Court
9 November 2016
SKS. M. Kibunja
710 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Siaya court let a plot buyer keep possession and rents, ruling that claims about a seller's mental capacity must wait for full trial.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Environment and Land Court (S.M. Kibunja, Judge) delivered on 9th November 2016 on a notice of motion dated 29th September 2015 by the Applicant, William Okiyah Okech, seeking a temporary injunction restraining the Respondents from trespassing on, collecting rent from, or alienating commercial property on Plot No.19/20 Kodiaga Market, Siaya County, pending the hearing of the suit. The application was opposed by the 2nd and 3rd Respondents, who contended that the 1st Respondent, the administratrix of the estate of the late John Okeyo Muger (the original allottee of the plots), was mentally challenged and lacked capacity to enter into the transactions. The court found that the 1st Respondent sold the plots to the Applicant for Kshs.1,300,000/= by an agreement of 25th April 2015, and had also guaranteed the Applicant a bank loan of Kshs.1,600,000/= secured by a charge over Uasin Cuchu/Ngenyilel Scheme/649; part of the loan proceeds paid the purchase price. The court held that the question of the 1st Respondent's capacity could only be determined after full trial, and that since the purchase price disbursement was unchallenged and the Applicant had to service the loan, it was fair that he remain in possession to protect the charged land. The court allowed the motion in terms of prayer 3, with costs in the cause, on condition that all rent collected be applied first to servicing the guaranteed loan.

Key legal issues

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01

Whether the Applicant established a prima facie case with a probability of success for an interlocutory injunction

Holding

The court found the application had merit, noting undisputed facts that the 1st Respondent sold the plots to the Applicant and guaranteed a bank loan, and that the challenge to her capacity required full trial.

Reasoning

The court observed that the sale agreement of 25th April 2015 and the loan guarantee were not disputed by the Respondents. The claim that the 1st Respondent lacked mental capacity could not be resolved on affidavit evidence alone. Since the Applicant had to service a Kshs.1,600,000 loan secured by a charge over land, it was fair and just that he remain in possession; otherwise the charged land would be at risk of realization upon default.

p. 2

Legal principles established

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  • Capacity of a party to a transaction is a matter to be determined after taking of evidence, not at interlocutory stage.

Court orders

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  1. 1.Notice of motion dated 29th September 2015 allowed in terms of prayer 3
  2. 2.Temporary injunction restraining the 1st to 3rd Respondents from trespassing on, collecting rent from, and alienating the commercial property on Plot No.19/20 Kodiaga Market pending hearing and determination of the suit
  3. 3.Costs in the cause
  4. 4.Condition that all rent collected is first employed at servicing the loan guaranteed by the 1st Respondent
Jurisdiction invoked
Inherent jurisdiction of the Environment and Land Court to grant interlocutory injunctions pending hearing and determination of the 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, "William Okiyah Okech v Damaris Kavinza Okeyo & 2 others [2016] KEELC 324 (KLR)", Case Analysis (2016). Notice of motion dated 29th September 2015 (suit re Plot No.19/20 Kodiaga Market). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/324/eng@2016-11-09

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