Jack Mathenge Giturwa & another v Citimark Investment Limited [2017] KEELC 1211 (KLR)
The bottom line
#A Kenyan court blocked a company from interfering with land it had paid only part of the price for, because the registered buyers held a valid title deed.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicants met the Giella v Cassman Brown threshold for a temporary injunction
Yes - the applicants established a prima facie case, having purchased the suitland for valuable consideration, paid the full purchase price and obtained a title deed; damages would not be an adequate remedy.
The court applied the Giella v Cassman Brown principles. The applicants demonstrated purchase for valuable consideration and issuance of a title deed. The respondent, by contrast, only made part payment of the agreed purchase price of Kshs.7,040,000/=, failed to comply with a completion notice, and could not point to any clause making completion contingent on a confirmed grant. A prima facie case being established, the court did not need to consider damages or balance of convenience.
Whether the respondent's incomplete purchase agreement conferred any right to interfere with the suitland
No - the respondent did not complete the purchase, did not comply with the completion notice, and the alleged contingency (confirmed grant) was not in the agreement.
The respondent entered a sale agreement in March 2015, paid Kshs.704,000/= as down payment and a further Kshs.2,000,000/= against an agreed price of Kshs.7,040,000/=. The vendors issued a completion notice which the respondent did not comply with. The respondent's contention that completion depended on the vendors obtaining a confirmed grant was rejected on the face of the agreement itself.
Legal principles established
#- A prima facie case is the cornerstone of the grant of a temporary injunction; once established, the court need not proceed to the other Giella limbs.
- Where an applicant has purchased land for valuable consideration and obtained title, damages are not an adequate remedy against a trespasser who never completed his own purchase.
Court orders
#- 1.Temporary injunction restraining the defendant/respondent, its servants, agents or whomsoever from fencing, sub-dividing, placing new beacons, constructing, trespassing, encroaching, alienating, disposing of or in any way interfering with parcel of land title No. Donyo Sabuk/Komarock Block 1/28136 pending the hearing and determination of the main suit
- 2.The OCS K.B.C Police Station to oversee the enforcement of the court orders
- 3.Costs of the application to the applicants (prayers 3, 4 and 5 of the Notice of Motion allowed)
- Jurisdiction invoked
- Inherent jurisdiction of the Environment and Land Court to grant interim injunctive relief pending hearing of the main suit
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jack Mathenge Giturwa & another v Citimark Investment Limited [2017] KEELC 1211 (KLR)", Case Analysis (2017). Notice of Motion dated 21st October 2016 (main suit, Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1211/eng@2017-10-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.