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ELCDismissedNot stated in the ruling (Embu ELC, Notice of Motion dated 10th February 2017 arising from Plaint dated 28th December 2016)· [2017] KEELC 2925 (KLR)

Justin Kinyua Macharia & another v Charles Nyaga Nthiiri [2017] KEELC 2925 (KLR)

Environment and Land Court
12 April 2017
1,669 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to stop a landowner from selling already-transferred land, warning buyers to act quickly and verify ownership before going to court.

What this practically means

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Executive summary

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By a Notice of Motion dated 10th February 2017, the Plaintiffs sought interlocutory injunctions restraining the Defendant from entering Title No. KAGAARI/WERU/8621 and from interfering with their farming operations pending the hearing of the application and of the suit. The application rested on a sale agreement dated 21st May 2010; the Plaintiffs asserted they had fully paid the purchase price, while the Defendant contended they had breached the agreement by failing to pay a Kshs 15,000/- balance, had sold the property to a third party, Alice Wanja Kariuki, and had offered a refund. The Defendant also raised a preliminary objection that the Plaintiffs' suit was incompetent because their advocate, J.K.N. Kamunyori, had drawn and witnessed the sale agreement. The court dismissed the objection, holding that the advocate was not a potential witness since the only disputed issue was full payment and no confidential information had been misused. On the injunction, applying the Giella v Cassman Brown principles, the court found no prima facie case with probability of success: the Defendant had transferred the property to a third party on or about 11th October 2016 and could no longer specifically perform, and any orders against him would be futile. The motion was dismissed with costs, though the Plaintiffs were permitted, under section 3A of the Civil Procedure Act, to harvest crops on the land within 30 days without interference by the Defendant. The ruling was delivered at Embu on 12th April 2017 by Y.M. Angima, Judge.

Key legal issues

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01

Whether the suit was incompetent because the Plaintiffs' advocate drew and witnessed the sale agreement in suit

Holding

The objection fails; the suit is prima facie competent because the advocate is not a potential witness on the only disputed issue (full payment of the purchase price) and no misuse of confidential information is alleged.

Reasoning

The court perused the sale agreement dated 21st May 2010 drawn and witnessed by J.K.N. Kamunyori Advocate. The agreement's existence and consideration are undisputed; only full payment is in issue. The purchase price was not payable to or through the advocate's firm, and no allegation was made that he used confidential information against the Defendant, so the advocate-as-witness objection had no merit.

p. 2
02

Whether the Plaintiffs met the Giella v Cassman Brown requirements for an interlocutory injunction

Holding

They did not; having failed to show a prima facie case with probability of success (the Defendant had transferred the suit property to a third party and could not specifically perform), the second and third Giella principles need not be considered.

Reasoning

While acknowledgment notes and a receipt evidencing payment of at least Kshs 115,000/- were undisputed and a Land Control Board consent existed, the property was transferred to Alice Wanja Kariuki on or about 11th October 2016. The Defendant was thus no longer registered owner and could not transfer the property, so orders against him would be futile.

p. 3

Legal principles established

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  • An advocate who drew and witnessed a sale agreement is not necessarily a potential witness precluding him from acting for a party where the only issue in dispute is full payment and no use of confidential information to the detriment of the other party is alleged.
  • A court should not issue an interlocutory injunction that would be futile in effect; where the respondent is no longer the registered owner, orders restraining him may serve no purpose.
  • An order for cancellation of a transfer to a third party requires that the third party first be joined as a party and that the court be satisfied she was not an innocent purchaser for value without notice.

Court orders

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  1. 1.The Defendant's notice of preliminary objection dated 20th February 2017 is dismissed.
  2. 2.The Plaintiffs' Notice of Motion dated 10th February 2017 is dismissed with costs.
  3. 3.The Plaintiffs are at liberty to harvest any crops or other foodstuff on the land, if any, within 30 days from the date of the ruling, and the Defendant shall not interfere with them during that period, pursuant to section 3A of the CPA (Cap 21).

Authorities

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Legislation

  • Civil Procedure RulesOrder 40
  • Civil Procedure Act (Cap 21)section 3A

Cases cited (1)

  • Giella Vs Cassman Brown & Co Ltd
    [1973] EA 358
Jurisdiction invoked
Order 40 of the Civil Procedure Rules; section 3A of the Civil Procedure Act (Cap 21)

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, "Justin Kinyua Macharia & another v Charles Nyaga Nthiiri [2017] KEELC 2925 (KLR)", Case Analysis (2017). Not stated in the ruling (Embu ELC, Notice of Motion dated 10th February 2017 arising from Plaint dated 28th December 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2925/eng@2017-04-12

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