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ELCDismissedNotice of Motion dated 15th March 2017 (suit number not stated in judgment)· [2017] KEELC 3751 (KLR)

Keneth Njiriri Mwaniki v David Chira Kagiri & 3 others [2017] KEELC 3751 (KLR)

Environment and Land Court
31 May 2017
2,621 words in judgment
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The bottom line

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Kenya's Environment and Land Court refused to stop work on disputed land because the buyer paid late, had no Land Control Board consent, and could be compensated with money.

What this practically means

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Executive summary

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This was a Notice of Motion dated 15th March 2017 by the plaintiff, Kenneth Njiriri Mwaniki, seeking a temporary injunction restraining the defendants from carrying out works or interfering with his quiet possession of 3 acres out of LR No. 289 Munyu Settlement Scheme, and an order directing the OCS Ngoliba Police Station to enforce compliance. The plaintiff alleged he purchased the land from the 1st and 2nd defendants under sale agreements, paid the full purchase price, and took possession, but the defendants had prevailed upon the 3rd and 4th defendants to encroach and harvest building stones. The respondents opposed, asserting the plaintiff breached the sale agreements by failing to pay within the stipulated period, that no Land Control Board consent was obtained rendering the agreements void, that the liquidated damages clause provided adequate compensation, and that the 1st defendant, as registered owner, could contract with third parties to extract stones. Applying the Giella v Cassman Brown principles, the court found the applicant had not established a prima facie case with probability of success, since although he claimed full payment, records showed payments continuing to April 2016 beyond the 30th May 2014 contractual deadline, a question of breach that could only be resolved at trial. The agreements' 20% liquidated damages clause meant damages were adequate. No Land Control Board consent had been obtained, so under section 6 of the Land Control Act the purchaser's remedy was refund of the purchase price. The balance of convenience also favoured refusal, as the exact portion owned by the 1st and 2nd defendants was not evident, a five-acre beneficiary was not a party, and no title certificates were attached. The application was dismissed entirely with costs in the cause.

Key legal issues

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01

Prima facie case

Holding

Applicant failed to establish a prima facie case with probability of success given evidence of late payment of the purchase price

Reasoning

The sale agreements required payment by 30th May 2014 in monthly instalments, yet the plaintiff was still paying as late as 18th April 2016, with no evidence of a reviewed extension. Whether this constituted breach could not be decided on affidavit evidence, so the prima facie case threshold failed.

p. 4
02

Adequacy of damages

Holding

Damages would suffice because the sale agreements contained a default/liquidated damages clause of 20% of the purchase price

Reasoning

The agreements provided that a breaching party would be liable at 20% of the purchase price plus costs. With a liquidated damages provision, the applicant could not contend that damages would be an inadequate remedy for any breach.

p. 5
03

Land Control Board consent

Holding

No LCB consent was obtained and the purchaser is entitled only to a refund of the purchase price

Reasoning

The respondents alleged no Land Control Board consent was obtained; the applicant did not dispute this and no consent was availed. Under section 6 of the Land Control Act, the purchaser's remedy is refund of the purchase price, not specific enforcement.

p. 5
04

Balance of convenience

Holding

Balance of convenience favoured refusing the injunction because the exact portion owned by the 1st and 2nd defendants was not evident

Reasoning

The suit land was owned by a third party entitled to 5 acres who was not joined, and no certificates of title were attached to show which portion belonged to the 1st and 2nd defendants. It would be unfair to enjoin dealings over 3 acres without such evidence.

p. 5

Legal principles established

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  • Where no Land Control Board consent is obtained, the purchaser is only entitled to refund of the purchase price
  • Breach of contract cannot be determined on affidavit evidence but must be determined at trial

Court orders

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  1. 1.The Plaintiff's Notice of Motion dated 15th March 2017 is dismissed entirely
  2. 2.Costs in the cause

Authorities

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Legislation

  • Civil Procedure Actsections 1A, 1B and 3A
  • Civil Procedure RulesOrder 40 Rule 1(a) and Rule 4(1)(a); Order 50 Rule 1
  • Land Control Board Actsection 6

Cases cited (6)

  • Films Rover International Ltd Vs Cannon Films Sale Ltd
    (1986) 3 ALL ER 772
  • Nguruma Ltd Vs Jan Bonde Nieleson & others
    (2014) KLR
  • David Kamau Gakuru Vs National Industrial Credti Bank Ltd
    Civil Appeal No 84 of 2001
  • Giella Vs Cassman Brown Co. Ltd
  • Airland Tours and Travel ltd Vs National Industrial Credit Bank
    Nairobi HCCC No. 1234 of 2002
  • Wairimu Mureithi Vs City Council of Nairobi
    Civil Appeal no. 5 of 1979
Jurisdiction invoked
Order 40 Rule 1(a), Order 50 Rule 1 of the Civil Procedure Rules and sections 1A, 1B and 3A of the Civil Procedure Act

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, "Keneth Njiriri Mwaniki v David Chira Kagiri & 3 others [2017] KEELC 3751 (KLR)", Case Analysis (2017). Notice of Motion dated 15th March 2017 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3751/eng@2017-05-31

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