Kimaru Kiplagat Bongoi v Christopher Kibet Barno & another [2017] KEELC 3192 (KLR)
The bottom line
#A land buyer who never obtained Land Control Board consent within six months lost his bid to stop the property being sold to someone else.
What this practically means
#Executive summary
#Key legal issues
#Prima facie case for temporary injunction
The plaintiff failed to establish a prima facie case with a probability of success; the property was registered in the 2nd defendant's name after due process, there was no evidence of fraud, the agreement lapsed for want of Land Control Board consent and was rescinded
The court found the suit property registered in the 2nd defendant's name following due process, with no evidence of fraud. The plaintiff paid only part of the price, never sought Land Control Board consent, and the agreement became stale six months after execution. The court also accepted that the 1st defendant had rescinded the contract, leaving the plaintiff without an arguable case.
Irreparable loss
No irreparable loss; the plaintiff's claim is reducible to a refund of the purchase price, which is quantifiable in damages
Since the plaintiff's claim was essentially for a refund of monies paid under a lapsed and rescinded sale agreement, the court held that any loss was capable of being compensated in monetary terms and therefore the second Giella condition failed.
Balance of convenience
The balance of convenience tilts against the injunction because the registered 2nd defendant would lose both land and money without compensation, while the plaintiff can be compensated monetarily
The court weighed the prejudice: the registered 2nd defendant, having paid Kshs.4,200,000 and completed transfer, would be doubly prejudiced by an injunction, whereas the plaintiff's loss is quantifiable. The balance of convenience therefore lay with the 2nd defendant.
Evidential value of undated affidavit
The 1st defendant's undated affidavit sworn on 26.4.2016 has no evidential value because it is undated and the date of commission is unknown
The court discounted the 1st defendant's second affidavit on formal grounds: an affidavit bearing no date and with an unknown date of commission cannot be relied upon as evidence.
Legal principles established
#- A land sale agreement requiring Land Control Board consent becomes stale six months after it is made if the parties fail to obtain the consent
- A plaintiff who takes possession but rests on his laurels and does not seek the Land Control Board consent cannot establish a prima facie case
Court orders
#- 1.The application for temporary injunction is dismissed
- 2.Costs of the application to the defendants
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes (application for temporary injunction pending hearing and determination of the suit)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimaru Kiplagat Bongoi v Christopher Kibet Barno & another [2017] KEELC 3192 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3192/eng@2017-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.