Daniel Kipchirchir Komen v Isaac Kipkemei Terer& another [2017] KEELC 2457 (KLR)
The bottom line
#The High Court in Eldoret refused to freeze a land seller's bank accounts, ruling that a buyer who paid Kshs.12 million can recover his money through damages instead.
What this practically means
#Executive summary
#Key legal issues
#Prima facie case for injunction
Although the plaintiff's claim was not frivolous - he paid Kshs.12,000,000/= and is named as purchaser in the sale agreement - the alleged oral joint venture would have to be proved at the main hearing, so the plaintiff had not established the threshold for the orders sought
The court accepted the plaintiff paid the purchase price and appears as purchaser in the sale agreement. The 1st defendant's defence of an oral joint venture to speculate in real property is unwritten and must be proved at trial. Yet even this finding on a prima facie case could not save an application whose specific orders were misconceived and against a property already transferred to third parties.
Irreparable harm not compensable by damages
The plaintiff's loss was quantifiable - he claimed the Kshs.12,000,000/= purchase price and Kshs.150,000,000/= loss of income - and he could adequately be compensated by damages
The court held the value of the properties could be ascertained and the plaintiff had paid that value. Since the claim was for ascertainable sums, the second Giella criterion failed, removing any basis for a mandatory or prohibitory injunction in respect of money claims.
Balance of convenience and propriety of freezing orders
The balance of convenience tilted towards the 1st defendant because freezing a bank account is drastic and the property had already been transferred to third parties
The court characterized the order freezing the 1st defendant's accounts as very drastic and lacking foundation, and noted the suit properties had been sub-divided and sold to non-parties. An injunction over property no longer in the defendant's hands would be futile, and no evidence showed the defendant intended to dispose of property to obstruct execution of any decree.
Order for security under Order 39
The plaintiff failed to satisfy Order 39, which requires evidence that the defendant intends to delay the plaintiff or avoid execution of a decree by absconding or removing property from the court's jurisdiction
The court set out Order 39 rules 1 and 2 and found no evidence that the defendant had absconded, was about to abscond, or had disposed of or removed property from the local limits of the court's jurisdiction with intent to delay the plaintiff. The alternative prayer for security therefore collapsed.
Legal principles established
#- A temporary injunction cannot issue where the suit property has already been alienated to third parties, as such an order would be made in vain
- A prima facie case is one in which, on the material presented, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed so as to call for an explanation or rebuttal from the opposite party
Court orders
#- 1.The Notice of Motion seeking to freeze the defendants' accounts or, in the alternative, an order for deposit of Kshs.12,000,000/= as security is dismissed
- 2.Costs in the cause
- Jurisdiction invoked
- Original civil jurisdiction; application under Order 40 and Order 39 of the Civil Procedure Rules, Cap. 21
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Daniel Kipchirchir Komen v Isaac Kipkemei Terer& another [2017] KEELC 2457 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2457/eng@2017-06-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.