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ELCAllowedNot stated in the judgment

Loriak Properties Limited v Susan Wanjiru Gitau & 2 others [2017] KEELC 2733 (KLR)

Environment and Land Court
28 April 2017
4,068 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan court blocked the transfer of land a deceased seller had agreed to sell, protecting a buyer's rights during succession proceedings.

What this practically means

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Executive summary

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The plaintiff sued the defendants, administrators of the estate of the late Gitau Kio, seeking completion and transfer of L.R No. 209/2490/49 under an agreement for sale dated 6th August 2008 at Kshs 10,000,000/-. The deceased died in July 2010 before completion, and the defendants, appointed administrators in Nakuru Succession Cause No. 657 of 2011, listed the suit property among the estate assets without disclosing the sale agreement. Together with the plaint, the plaintiff sought a temporary injunction restraining distribution, transmission, transfer or alienation of the property pending trial. The defendants opposed through a preliminary objection and replying affidavit, contending that the agreement was void for want of the Commissioner of Lands' consent, mistake, uncertainty and illegality; that it had lapsed after its 90-day completion period; that the suit was time barred under section 4(1) of the Limitation of Actions Act; that the application was incompetent for lack of an injunction prayer in the plaint; and that the court lacked jurisdiction to entertain a dispute touching on property in a succession cause. Applying the Giella v Cassman Brown principles, the court found the plaintiff had established a prima facie case with probability of success and irreparable injury not compensable in damages, since confirmation of the grant could occur at any time and distribution would put the property beyond the plaintiff's reach. The court held that the defendants' contested defences could not be resolved on affidavit evidence without conducting a mini trial, and gave preliminary findings that the want of the Commissioner of Lands' consent did not void the agreement. It upheld its jurisdiction, following the approach that a purchaser's claim may be litigated either in the succession cause or in a separate suit, and held that a permanent injunction prayer in the plaint was not a prerequisite. The application dated 27th October 2015 was allowed in terms of prayer 3, with costs to the plaintiff.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the plaintiff established a prima facie case with a probability of success warranting a temporary injunction
  2. 2.Whether the plaintiff would suffer irreparable injury not compensable by damages
  3. 3.Whether the agreement for sale was void or unenforceable for want of the Commissioner of Lands' consent, mistake, uncertainty, lapse of time or illegality
  4. 4.Whether the suit and application were time barred under section 4(1) of the Limitation of Actions Act
  5. 5.Whether the application was incompetent for lack of a prayer for injunction in the plaint
  6. 6.Whether this court has jurisdiction over a purchaser's dispute concerning property in a succession cause

Key legal issues

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01

Prima facie case and irreparable injury for temporary injunction

Holding

The plaintiff established a prima facie case with probability of success and irreparable injury not compensable by damages, since distribution of the suit property would put it beyond the plaintiff's reach.

Reasoning

Applying Giella v Cassman Brown, the court found the plaintiff had entered into and partly performed an agreement for sale with the deceased which bound his legal representatives. The grant of letters of administration could be confirmed at any time, enabling distribution of the property to beneficiaries. Damages were inadequate because the property would be put beyond the plaintiff's reach if it succeeded at trial.

p. 5
02

Whether defences to the agreement (illegality, lapse, limitation, readiness to pay) could be resolved on affidavit evidence

Holding

No - those contested issues could only be determined at the trial, and the court would risk conducting a mini trial if it resolved them at the interlocutory stage.

Reasoning

The court held that questions such as whether the agreement lapsed by effluxion of time, whether the suit was time barred, whether the plaintiff was ready, willing and able to pay, and whether the agreement was void for mistake, uncertainty or want of consent could not be determined on affidavit evidence. It nonetheless gave preliminary findings rejecting some of the defendants' contentions, including that the want of Commissioner of Lands' consent did not void the agreement.

p. 5
03

Jurisdiction over a purchaser's claim where the property is subject of a succession cause

Holding

The ELC had jurisdiction; a purchaser's dispute over estate property may be determined either in the succession proceedings or in a separate suit.

Reasoning

The court distinguished the dispute before it (over the agreement for sale) from the succession dispute before the High Court at Nakuru. Relying on Gikonyo J. in Simon Kamundi v Tabitha Gatiria Maingi, and the Court of Appeal's observation in Rubo Kipngetich Arap Cheruiyot v Peter Kiprop Rotich that third-party claims are better litigated in separate suits, the court found the suit properly before it.

p. 6
04

Whether an injunction application fails for want of a permanent injunction prayer in the plaint

Holding

The application, brought under Order 40 Rules 1 and 2, was competent; a permanent injunction need not be sought in the plaint to entitle the plaintiff to a temporary injunction.

Reasoning

The defendants argued the application was incompetent because the plaint had no prayer for injunction, citing Morris & Co. Ltd v Kenya Commercial Bank and related authorities. The court held that Order 40 Rules 1 and 2 empowered it to grant the temporary injunction sought pending the hearing and determination of the suit, making a plaint prayer for a permanent injunction unnecessary in the circumstances.

p. 6

Legal principles established

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  • A purchaser's claim concerning estate property may be litigated either in the succession proceedings or in a separate suit; there is no absolute prohibition on such claims being raised in a succession cause.
  • An agreement for sale of leasehold land entered into subject to the Commissioner of Lands' consent is not rendered null and void merely because the consent has not yet been obtained where the agreement places the obligation to obtain consent on the vendor.
  • It is not mandatory for a plaintiff to seek a permanent injunction in the plaint in order to be granted a temporary injunction under Order 40 Rules 1 and 2 of the Civil Procedure Rules.

Court orders

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  1. 1.The plaintiff's Notice of Motion dated 27th October 2015 is allowed in terms of prayer 3 thereof (temporary injunction restraining the defendants from distributing, transmitting, transferring, alienating or dealing with the suit property pending the hearing and determination of the suit)
  2. 2.The plaintiff shall have the costs of the application

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act read with Order 40 Rules 1 and 2 of the Civil Procedure Rules; the court held the purchaser's dispute could be litigated in a separate suit notwithstanding parallel succession proceedings

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the final analysis, I am satisfied that that the plaintiff has met the conditions for granting a temporary injunction. The plaintiff's application dated 27th October 2015 is allowed in terms of prayer 3 thereof. The plaintiff shall have the costs of the application.
p. 6Final orders - temporary injunction granted with costs
I am satisfied that the plaintiff has established a prima facie case with a probability of success against the defendants and that unless the injunction sought is granted, it will suffer irreparable injury which cannot be compensated by an award of damages.
p. 5Giella test satisfied
In my view, failure or refusal by the defendants to obtain the said consent does not render the said agreement null and void.
p. 5Commissioner of Lands consent
I am of the view that a dispute of this nature can either be determined in the succession proceedings or in a separate suit like the one before me.
p. 6Jurisdiction over purchaser's claim alongside succession proceedings
I am of the view that in the circumstances of this case, it was not mandatory for the plaintiff to seek a permanent injunction in the plaint to be entitled to the temporary injunction sought.
p. 6No need for permanent injunction prayer in plaint

Issues in the judgment

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minor

The judgment cites the case as 'Nguruman Limited' in one passage but earlier submissions refer to 'Ngorika Farmers Cooperative Society Ltd' as a distinct case; the two names appear close together and may be a typographical duplication, though both are listed as cited.

minor

Typographical errors in the judgment, e.g. 'I find not merit in the defendant's argument' and inconsistent spelling of 'Nguruman'/'Ngorika', but no substantive contradictions.

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, "Loriak Properties Limited v Susan Wanjiru Gitau & 2 others [2017] KEELC 2733 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2733/eng@2017-04-28

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