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ELCAllowedApplication dated 1st September, 2016· [2017] KEELC 2346 (KLR)

Flora Itumbi v William Kivai Ndaisi [2017] KEELC 2346 (KLR)

Environment and Land Court
16 June 2017
OAO.A. Angote
771 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court stopped a land seller from evicting a buyer, ruling he could not keep land he had already sold.

What this practically means

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Executive summary

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This was a ruling on the Plaintiff's application dated 1st September 2016 seeking a temporary injunction restraining the Defendant from blocking the Plaintiff's access to 11.8 acres said to have been purchased from the Defendant's land, now contained in parcel Mitaboni/Mitaboni/2596, pending hearing of the main suit. The Plaintiff deponed that between 1986 and 1989 he entered into written sale agreements with the Defendant, bought 11.8 acres of unsurveyed land, settled on it in 1989, and constructed permanent buildings, but that the Defendant misrepresented himself during adjudication and registered himself as owner of the entire parcel, later threatening eviction. The Defendant denied transacting with the Plaintiff, asserting that the purchaser was one Alice Muya, that the agreements did not indicate acreage or the Plaintiff as purchaser, and that he is the registered proprietor with his family in residence. The court observed that although the Defendant asserted the sold land was demarcated in 1989, he produced no evidence showing that the Plaintiff's purchased land was distinct from parcel 2596 (approximately 25.2 acres). Absent such evidence, the court found a prima facie case with chances of success and held that, whether the purchaser was the Plaintiff or Alice Muya, the Defendant could not retain land already sold without unjust enrichment. The application dated 1st September 2016 was allowed as prayed, with costs in the cause. Judgment delivered at Machakos on 16th June 2017 by O.A. Angote, Judge.

Key legal issues

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01

Prima facie case for temporary injunction

Holding

In the absence of evidence showing that the land the Plaintiff purchased is distinct from parcel 2596, the Plaintiff established a prima facie case with chances of success, justifying a temporary injunction.

Reasoning

The Defendant admitted selling portions of the land but contended the purchaser was Alice Muya, not the Plaintiff. The court noted the Defendant failed to produce evidence showing the Plaintiff's purchased land was not consumed within parcel 2596. On that evidentiary gap, a prima facie case was established and the injunction application was allowed as prayed.

p. 2
02

Unjust enrichment

Holding

The Defendant could not retain land he had already sold, whether the purchaser was the Plaintiff or Alice Muya.

Reasoning

The court reasoned that irrespective of the identity of the purchaser under the sale agreements, the Defendant had admittedly sold portions of the land. Allowing him to retain what he had sold would amount to unjust enrichment, supporting the grant of interlocutory relief pending determination of the main suit.

p. 2

Legal principles established

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  • A vendor cannot be allowed to retain land he has already sold, as that would amount to unjust enrichment.

Court orders

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  1. 1.The Plaintiff's Application dated 1st September, 2016 allowed as prayed
Jurisdiction invoked
Original civil jurisdiction over land disputes; interlocutory application for temporary injunction

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, "Flora Itumbi v William Kivai Ndaisi [2017] KEELC 2346 (KLR)", Case Analysis (2017). Application dated 1st September, 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2346/eng@2017-06-16

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