Maureen Wangui Kamande & 4 others v Nicholas Mwaniki Waweru t/a Mambo Moto Media & 2 others [2017] KEELC 2522 (KLR)
The bottom line
#A Kajiado court froze two Kitengela plots and ordered the sellers to bank Kshs. 6.82 million because secret loans on the land blocked the buyers' transfers.
What this practically means
#Executive summary
#Key legal issues
#Frustration of the seven Sale Agreements
The contracts were frustrated by the Defendants' actions, particularly charging the suit properties to financial institutions after executing the sale agreements without informing the Plaintiffs
The parties admitted seven executed Sale Agreements and payment of Kshs. 6,820,000. The 1st Defendant signed as promoter with authority under the preamble to sell and receive payment, so lack of a Power of Attorney was no answer. Charges over the suit parcels were created after the agreements, were not disclosed, and one parent property was sold a day after its charge was lifted. The court held this frustrated contractual performance.
Entitlement to interlocutory injunction
The Plaintiffs established a prima facie case warranting an injunction, as triable issues arise and they face irreparable loss
Applying Giella v Cassman Brown, the court found the existence of undischarged charges over the suit parcels rendered transfers impossible and imperilled the Plaintiffs' payment. The 1st Defendant gave no guarantee the parcels would not be auctioned and no timelines for transfer. The court found a prima facie case with triable issues and irreparable loss, granting prayers 3 and 5 only.
Legal principles established
#- Principles for granting a temporary injunction: prima facie case with probability of success, irreparable injury not adequately compensable in damages, and balance of convenience where the court is in doubt
- An agent authorised under a sale agreement preamble to sell plots and receive payment cannot later plead want of a Power of Attorney to effect transfers
- A party cannot rely on Law Society Conditions of Sale where they were not incorporated into the sale agreement
Court orders
#- 1.Pending the hearing and final determination of the Suit, the Defendants/Respondents to deposit a total sum of Kshs. 6,820,000 to a bank account mutually agreed upon by the parties within 30 days
- 2.Pending the hearing and final determination of the suit, the Defendants/Respondents, their servants, agents and or employees and or anyone else working under their directions are restrained from further alienating, marketing for sale, disposing of or interfering with LR Kajiado/Kitengela/71158 and 71159 or any part thereof
- 3.Costs in the cause
- Jurisdiction invoked
- Sections 1A, 1B, 3A of the Civil Procedure Act, Order 51 of the Civil Procedure Rules, Sections 2 and 3 of the Law of Contract Act, the Registration of Documents Act and the Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maureen Wangui Kamande & 4 others v Nicholas Mwaniki Waweru t/a Mambo Moto Media & 2 others [2017] KEELC 2522 (KLR)", Case Analysis (2017). Notice of Motion dated 7th December, 2016 (suit not otherwise numbered in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2522/eng@2017-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.