M’mbetsa Chikololo Suma v Kalume Karisa Mbitha [2017] KEELC 246 (KLR)

The plaintiff entered into a sale agreement on 18/10/2010 for 0.04047 hectares excised from Plot 1003 Mtwapa, later varied by a deed of variation on 17/4/2011. He paid Kshs.1,100,000 with the balance of Kshs.600,000 payable on successful transfer. The defendant received the money but never effected the transfer. Applying Mrao v First American Bank, the plaintiff demonstrated an apparent infringement of a right calling for rebuttal, hence a prima facie case with probability of success.

The defendant claimed he was willing to refund the purchase price but failed to demonstrate any steps taken since the suit was filed to effect a refund or any proposals made to the plaintiff. The court found the plaintiff's fear of disposal real, holding that he would lose both the land and the purchase price if the orders were not granted, and that the balance of convenience favoured the plaintiff since the defendant admitted the sale agreement and had not refunded the money.

The defendant argued the plaintiff sought a liquidated sum, hence no injunction could issue and no irreparable loss was possible. The court examined the plaint dated 17/7/2015 and found that beyond the claim for Kshs.1,100,000 with interest, the plaintiff sought specific performance directing the defendant to execute transfer documents, and in default, that the Deputy Registrar execute them. The contention that the claim was solely for a liquidated sum was therefore untrue.