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ELCAllowednot stated in the provided judgment text· [2017] KEELC 2643 (KLR)

Patrick Gathitu Kariuki v H W H [2017] KEELC 2643 (KLR)

Environment and Land Court
27 June 2017
1,334 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A Nairobi court blocked a landowner from selling or mortgaging disputed land during a case, confirming buyers get no rights over property tied up in litigation.

What this practically means

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Executive summary

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The Plaintiff sued the Defendant over land known as L.R. No. 2951/[particulars withheld], alleging a written joint venture agreement dated 28th May 2013 for construction of twenty-two houses, under which he paid a Kshs.1,000,000 deposit and spent Kshs.25,085,232.64 on design and architectural work. He sought specific performance or, alternatively, Kshs.26,085,232.64 and damages. Before the court was his Notice of Motion dated 14th March 2016 seeking an injunction restraining dealings with the suit property and its seven sub-divisions, after the Defendant allegedly removed his caveat without notice and sub-divided the property for sale. The Defendant opposed, contending she signed the agreement while recovering from a stroke and could not read or appreciate its implications, that the caveat was lawfully removed by the land registrar on 22nd July 2014, and that the sub-divisions were lawful. Applying the Giella v Cassman Brown principles, S. Okong'o J found a prima facie case: the Defendant admitted the agreement, receipt of payments, and unwillingness to complete, but adduced no credible evidence of mental incapacity. The court also found irreparable harm since the Defendant had sub-divided the property and might not be able to pay the alternative sum. Independently, the court would have granted the orders under the doctrine of lis pendens, citing Mawji v U.S International University and the Court of Appeal decision in Naftali Ruthi Kinyua v Patrick Thuita Gachure. The application was allowed; a temporary injunction was issued restraining the Defendant from dealing with the property pending hearing and determination of the suit, with costs in the cause.

Key legal issues

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01

Whether the Plaintiff met the Giella v Cassman Brown conditions for an interlocutory injunction

Holding

Yes. The Defendant admitted entering the joint venture agreement and receiving payments and admitted unwillingness to complete, while providing no credible proof of mental incapacity; hence a prima facie case and irreparable harm were established.

Reasoning

The Defendant admitted execution of the joint venture agreement and receipt of payments but claimed she signed while recovering from a stroke and could not read. The court found no credible evidence of mental incapacity on 28th May 2013. Since the Defendant had sub-divided the property for sale and could not be shown able to pay Kshs.26,085,232.64, damages would not adequately compensate the Plaintiff.

p. 2
02

Whether the doctrine of lis pendens independently supports the injunction

Holding

Yes. Even absent satisfaction of the Giella conditions, the court would grant the orders on the basis of lis pendens, citing Mawji v U.S International University and Naftali Ruthi Kinyua v Patrick Thuita Gachure.

Reasoning

The court invoked section 52 of the (former) Transfer of Property Act doctrine as substantive law preventing parties from disposing of property in dispute pending litigation. The Court of Appeal authority confirmed lis pendens survives repeal of the Indian Transfer of Property Act, 1882, so sub-divisions and sales during the suit could not prejudice the Plaintiff.

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03

Whether the Defendant's defence of mental incapacity defeated the application

Holding

No. The Defendant produced no credible evidence of incapacity on the date of execution of the agreement.

Reasoning

The Defendant alleged she was recovering from stroke when her sister took her to sign the agreement, that she could not read and did not understand its implications. The court held this assertion was unsubstantiated by any credible evidence, and her admissions of execution and receipt of funds weighed against her.

p. 2

Legal principles established

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  • An applicant for a temporary injunction must establish a prima facie case with a probability of success, irreparable harm not compensable in damages, failing which the balance of convenience applies (Giella v Cassman Brown).
  • The doctrine of lis pendens remains applicable in Kenya despite the repeal of the Indian Transfer of Property Act, 1882, prohibiting parties from creating pending-litigation rights over disputed property.

Court orders

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  1. 1.Pending the hearing and final determination of the suit or further orders, a temporary injunction restraining the Defendant, her servants, agents or otherwise, from in any manner constructing, disposing, charging, mortgaging or creating any lien, charge, caveat or other encumbrance on Plot No. 2951[particulars withheld]
  2. 2.Costs of the application to be in the cause

Authorities

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Legislation

  • Indian Transfer of Property Act, 1882section 52 (referred to as 'section 52 of T.P.A')

Cases cited (3)

  • Giella vs. Cassman Brown & Co. Ltd.
    (1973) E.A 358
  • Mawji Vs. U.S International University & Another
    (1976) KLR 185
  • Naftali Ruthi Kinyua vs. Patrick Thuita Gachure & Nairobi City Council
    (2015) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land (interlocutory application within a pending suit); no specific provision cited in the judgment

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, "Patrick Gathitu Kariuki v H W H [2017] KEELC 2643 (KLR)", Case Analysis (2017). not stated in the provided judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2643/eng@2017-06-27

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