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ELCDismissedNot stated in the judgment· [2016] KEELC 889 (KLR)

Rose Wanjeri Magwi & another v Arthur Magwi Kagema & another [2016] KEELC 889 (KLR)

Environment and Land Court
9 May 2016
LWL. N. Waithaka
2,531 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed land buyers' injunction bid because they sued too late and proved nothing illegal about the sale.

What this practically means

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Executive summary

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The applicants, Rose Wanjeri Magwi and Hable Kagema Magwi, moved the court by notice of motion dated 13th November 2015 seeking to restrain the 2nd respondent from taking possession of, occupying, developing or interfering with parcel Loc.19/Gacharageini/2968, pending hearing of the suit. They additionally sought an order compelling the 2nd respondent to surrender or deposit the original title deed in court and to remove temporary structures allegedly erected in defiance of a court order. The applicants contended that the 1st respondent, said to lack capacity, was misled into secretly selling family land to the 2nd respondent, and that the transaction was illegal for want of Land Control Board consent. The 2nd respondent denied wrongdoing, asserted he bought the land in good faith and took possession, and explained that his Land Control Board application was not processed due to the applicants' interference. Applying the Giella v Cassman Brown tests, the court found no prima facie case: the 1st respondent himself denied the alleged improprieties; the medical reports on capacity were untested; and the alleged lack of Land Control Board consent did not render the agreement void, only voidable, since the Board had not refused consent. The court further held that the 2nd respondent had already taken possession and commenced developments before the applicants came to court, and that an injunction cannot restrain a completed event. As to the title deed, the applicants' caution on the register adequately protected their interests. The motion was dismissed with costs to the respondents.

Key legal issues

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01

Prima facie case

Holding

The applicants failed to demonstrate a prima facie case with a probability of success against the 2nd respondent

Reasoning

The 1st respondent, whose alleged incapacity and misinformation underpinned the claim, denied any wrongdoing by the 2nd respondent and asserted he entered the agreement freely. The medical reports adduced were untested by cross-examination and could not, at interlocutory stage, prove want of capacity. No evidence was led to prove the imputed improprieties.

p. 4
02

Legality of the sale agreement for want of Land Control Board consent

Holding

The agreement was not shown to be illegal or void; at most it is voidable

Reasoning

Under sections 8 and 9 of the Land Control Act, a transaction becomes void when the Board refuses or is deemed to have refused consent. There was no evidence the Board was seized of the application and refused it; the applicants had instead interfered with the application process.

p. 4
03

Injunction against completed acts

Holding

No injunction can issue to restrain an event that has already taken place

Reasoning

The plaint itself showed the 2nd respondent had already taken possession, demarcated, cleared and commenced construction before the applicants moved to court. Relying on Stanley Kirui v Westlands Pride Limited and other authorities, the court held injunctions do not lie against completed acts.

p. 5
04

Alleged contempt of court orders by the 2nd respondent

Holding

The 2nd respondent could not be held to have defied this court's orders

Reasoning

Since possession and development preceded the applicants' motion, and the 2nd respondent was never subject to an injunction issued by the court, there was no disobedience. The court found no orders of injunction had ever been issued against him.

p. 5

Legal principles established

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  • An injunction cannot be granted once the event intended to be injuncted has been overtaken by events
  • The Giella v Cassman Brown conditions for interlocutory injunctions are applied sequentially; the second condition is addressed only if the first is satisfied
  • Where an application for Land Control Board consent was never refused by the Board, the transaction is at most voidable, not void

Court orders

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  1. 1.The notice of motion dated 13th November, 2015 is dismissed with costs to the respondents
Jurisdiction invoked
Original civil jurisdiction of the High Court/Environment and Land Court over the land dispute (inherent jurisdiction to grant interlocutory injunctions under the Civil Procedure Act; not expressly cited 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, "Rose Wanjeri Magwi & another v Arthur Magwi Kagema & another [2016] KEELC 889 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/889/eng@2016-05-09

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