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ELCPartially AllowedNot stated in the excerpt· [2017] KEELC 3741 (KLR)

Joyce Ijai Jahava v Geoffrey Kegode Mudavadi & another [2017] KEELC 3741 (KLR)

High Court of Kenya
6 April 2017
1,003 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court protected a land buyer who paid more than the agreed price, freezing all dealings with the property until the case is decided.

What this practically means

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Executive summary

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This was a Notice of Motion dated 22nd December 2016 brought under section 3A of the Civil Procedure Act and Order 40 Rules 1(a) & (b) and 2(1) & (2) of the Civil Procedure Rules 2010, seeking temporary injunctions restraining the Defendants from meddling with, interfering with, selling, leasing, disposing of or alienating parcel N/MARAGOLI/MBALE/1812, as well as orders for deposit of the title deed with the court and execution of transfer documents. The Applicant/Plaintiff contended she was the rightful beneficial owner, having paid in excess of the purchase price of Kshs 500,000 under a sale agreement of 7th January 2009, and that the 1st Defendant threatened to dispose of the land to third parties despite refusing to transfer it. The 1st Defendant countered that the land stood charged to the 2nd Defendant for a loan of Kshs 200,000, that the Applicant knew of the charge, failed to complete the sale within 90 days, and did not pay the balance, warranting rescission. He relied on authorities to the effect that a court cannot rewrite a voluntary written agreement. Applying the Giella v Cassman Brown principles, the court found a prima facie case with probability of success, noting the Applicant paid the deposit and far in excess of the purchase price while the 1st Defendant frustrated completion. The court granted prayer 3 only: a temporary injunction restraining dealings with the suit property pending determination of the suit, with costs in the cause. Delivered at Kakamega on 6th April 2017 by N.A. Matheka, J.

Key legal issues

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01

Whether the Applicant established a prima facie case warranting a temporary injunction over N/MARAGOLI/MBALE/1812

Holding

Yes; the Applicant paid a deposit and further sums in excess of the purchase price, and the 1st Defendant frustrated completion by refusing to transfer

Reasoning

The court found that the parties entered a sale agreement on 7th January 2009 for Kshs 500,000, that the Applicant paid the deposit of half that amount, that she paid sums to the 2nd Defendant to salvage the property after discovering the charge, and that the 1st Defendant frustrated completion by refusing to transfer. This showed a prima facie case with probability of success.

p. 2
02

Whether an injunction should issue pending determination of the suit

Holding

Yes; the court granted prayer 3, restraining dealings with the suit property pending hearing and determination of the suit

Reasoning

Having found a prima facie case and that the Applicant had paid far in excess of the purchase price, the court concluded the application had merit and granted the interlocutory injunction in terms of prayer 3, with costs in the cause.

p. 2

Legal principles established

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  • Applications for interlocutory injunctions are considered against the Giella v Cassman Brown principles: prima facie case with probability of success, inadequacy of damages, and balance of convenience
  • An interlocutory injunction is an equitable relief and may be declined where the applicant's conduct does not meet the approval of a court of equity

Court orders

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  1. 1.A temporary injunction restraining the Defendants, their agents, servants and/or employees from meddling, interfering, selling, leasing, disposing, alienating or in any other manner dealing with all that parcel of land known as N/MARAGOLI/MBALE/1812 pending the hearing and determination of this suit
  2. 2.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure Rules 2010Order 40 Rules 1(a) & (b) and 2(1) & (2)

Cases cited (3)

  • EMO Investments Ltd vs Stephanus Petrus Kruger
    (2010) eKLR
  • National Oil vs Pipeplastic Samkolit (K) Ltd & Prof. Samson K. Ongeri
    CA Nbi 95/1999
  • GIELLA VS CASSMAN BROWN & CO. LTD
    1973 E.A 358
Jurisdiction invoked
Section 3A of the Civil Procedure Act and Order 40 Rules 1(a) & (b) and 2(1) & (2) of the Civil Procedure Rules 2010

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, "Joyce Ijai Jahava v Geoffrey Kegode Mudavadi & another [2017] KEELC 3741 (KLR)", Case Analysis (2017). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3741/eng@2017-04-06

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