Sepekaan Koiwasei Kesaika & another v Kaseenche Ole Lepoi [2017] KEELC 1032 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiffs established a prima facie case with a probability of success
Yes - a binding sale agreement dated 12th September 1995 existed and the purchase price was paid in full; specific performance is a triable issue
The court noted the executed Sale Agreement (annexure SKK 1) in which the Defendant received Kshs. 48,000 with a balance of Kshs. 17,000 payable by March 1996, which payment was not controverted. Special conditions required the title to issue in the purchaser's name, and the agreement was witnessed by Sajiloni Group Ranch officials. The court held there was a binding contract under Section 3 of the Law of Contract Act and that limitation and specific performance issues were triable.
Whether the Plaintiffs would suffer irreparable loss not compensable by damages
Yes - the deceased never obtained title, the subdivisions are registered in the Defendant's name, and he did not state he could pay damages
The Plaintiffs hold an equitable interest as the deceased purchased the land but never obtained title. The Defendant did not deny the agreement and admitted failure to adhere to its terms. The subdivisions remain in the Defendant's name and he may dispose of them to third parties; critically, the Defendant never asserted an ability to pay damages. The court therefore found the injury would not be adequately compensated by damages.
Balance of convenience
It tilts in favour of the Plaintiffs because the title must be preserved pending trial
On the evidence, the court found that if the title to the property was not preserved it might be wasted away, making preservation orders appropriate. The court therefore substituted the sought injunction with an inhibition order registered against the two resultant subdivisions.
Legal principles established
#- The Giella v Cassman Brown principles govern the grant of temporary injunctions: prima facie case with probability of success, irreparable injury not compensable by damages, and balance of convenience if in doubt
Court orders
#- 1.An inhibition order registered by the Land Registrar Kajiado as against land parcels KAJIADO/DALALEKUTUK/3891 and KAJIADO/DALALEKUTUK/3892 (resultant subdivisions of KAJIADO/DALALEKUTUK/2952) against any dealings, lease or charge pending the hearing and determination of the suit
- 2.Costs in the cause
- 3.Parties urged to comply with Order 11 and set the suit down for hearing as soon as possible
- Jurisdiction invoked
- Sections 63(c) and (e) of the Civil Procedure Act, Order 40 rules 1 and 4 of the Civil Procedure Rules, Section 68 of the Land Registration Act, 2012 and Sections 13(2)(d) and (7) of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sepekaan Koiwasei Kesaika & another v Kaseenche Ole Lepoi [2017] KEELC 1032 (KLR)", Case Analysis (2017). Notice of Motion dated 8th December 2015 (suit number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1032/eng@2017-11-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.