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ELCDismissedApplication dated 29/12/2016 (suit concerning L.R. No. 36/III/222, Eastleigh, Nairobi)· [2017] KEELC 2920 (KLR)

Eunice Wairimu Muturi & another v Ruth Nyambura Chuchu & 2 others [2017] KEELC 2920 (KLR)

Environment and Land Court
27 April 2017
KBK. BOR
775 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court refused to hold Kshs. 2.3 million in trust because the buyers never asked for a refund in their case papers.

What this practically means

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Executive summary

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The Plaintiffs, administrators/successors of the late Gerald Muturi Maina, applied by notice of motion dated 29/12/2016 seeking an order that the Defendants deposit in court the sum of Kshs. 2.3 Million pending the hearing and determination of the suit. The sum was a deposit paid on 19/3/2010 pursuant to an agreement for the sale of L.R. No. 36/III/222 in Eastleigh, Nairobi, part of which was released to the Defendants by their advocates, Muchangi Nduati & Co. Advocates, on the Defendants' indemnity, for medical bills. The Plaintiffs learnt the Defendants had spent the entire deposit and had rescinded the sale agreement. The application was prompted by a ruling in Eunice Wairimu Muturi & Another v Muchangi Nduati t/a Muchangi Nduati & Advocates (Nairobi ELC 164 of 2014 (OS)), in which a suit against the advocates was struck out and the Defendants stated on oath that they were willing to refund the deposit. The 2nd Plaintiff deposed that the Plaintiffs were apprehensive of prejudice. The court, however, examined the plaint dated 16/6/2011 and found the prayers were a permanent injunction and specific performance of the sale agreement, with no claim for refund of the deposit. An injunction restraining dealings with the suit property had already been granted on 17/7/12. The court held it was not prudent to grant the orders sought since success at trial would yield only the pleaded reliefs, and dismissed the application with costs in the cause, directing the Plaintiffs to set down the suit for hearing. Judgment was delivered at Nairobi on 27th April 2017 by K. Bor, Judge.

Key legal issues

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Whether the Defendants should be ordered to deposit Kshs. 2.3 Million in court pending determination of the suit

Holding

The application was dismissed; the court held it was not prudent to grant the orders since the Plaintiffs' plaint seeks only a permanent injunction and specific performance, not a refund of the deposit

Reasoning

The court examined the plaint dated 16/6/2011 and noted the prayers were a permanent injunction and specific performance of the sale agreement dated 19/3/2010, with no claim for refund of the deposit. Since success at trial would yield only those reliefs, an interlocutory order securing the deposit in court would serve no purpose. The court also noted an injunction restraining dealings with the suit property was already in place from the ruling of 17/7/12, protecting the Plaintiffs pending trial.

p. 2

Legal principles established

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  • An interlocutory order for deposit of a purchase deposit will not be made where the refund of the deposit is not a relief claimed in the plaint
  • Where specific performance of a sale agreement is claimed, the court's ultimate reliefs on success are those pleaded in the plaint, namely injunction and specific performance

Court orders

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  1. 1.The application dated 29/12/2016 is dismissed
  2. 2.Costs shall be in the cause
  3. 3.Plaintiffs to set down the case for hearing
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit relating to L.R. No. 36/III/222

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, "Eunice Wairimu Muturi & another v Ruth Nyambura Chuchu & 2 others [2017] KEELC 2920 (KLR)", Case Analysis (2017). Application dated 29/12/2016 (suit concerning L.R. No. 36/III/222, Eastleigh, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2920/eng@2017-04-27

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