Benjamin Imalingat & Anne Wairimu Imalingat v Jolly Eloit Budds & Kyuna Limited (Environment & Land Case 8 of 2018) (Environment and Land) [2018] KEELC 361 (KLR)
The bottom line
#A Kenyan land buyer who paid and moved in got protection for the plot, but the court refused to force transfer before trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiffs established a prima facie case in respect of Plot No. 7158/616
Yes - payment of the purchase price was established on a prima facie basis, giving the plaintiffs an interest deserving protection
The sale agreement and its terms were undisputed; the purchase price was Kshs. 15,500,000 of which Kshs. 14,000,000 was admitted paid. The disputed Kshs. 1,500,000 was supported by an acknowledgment dated 16th October, 2009 whose effect could only be determined at trial. On the face of it the plaintiffs had a right threatened with violation and an interest in the property worth protecting pending trial.
Whether damages would be an adequate remedy
No - the plaintiffs were in possession and risked losing both the property and an investment worth over Kshs. 15,000,000
The plaintiffs were in possession of Plot No. 7158/616. If the injunction were refused they would not only risk dispossession but also the loss of an investment exceeding Kshs. 15,000,000, an injury not compensable by an award of damages. Irreparable harm was therefore demonstrated.
Whether the plaintiffs established a case over Plot No. 7158/617 and the additional one acre
No - no binding agreement for sale over that parcel was established
The court agreed with the defendants that the plaintiffs had not established a binding agreement for sale with the 1st defendant and the deceased in respect of Plot No. 7158/617 or the additional one acre. Absent such an agreement, no prima facie case existed against the defendants in respect of that parcel.
Whether an interlocutory mandatory injunction to compel transfer should issue
No - the case was not unusually strong and clear, nor were special circumstances shown
Applying Locabail and Shepherd Homes, a mandatory injunction at the interlocutory stage requires special circumstances and a high degree of assurance. The claim to compel transfer was the plaintiffs' main relief in the plaint; granting it before the hearing would decide the suit in advance. The plaintiffs failed to meet the higher threshold.
Legal principles established
#- A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances and only in clear cases, on a higher standard than a prohibitory injunction
- A final declaration cannot be granted at the interlocutory stage
Court orders
#- 1.The application dated 22nd December, 2017 is allowed in terms of prayer 3 but limited only to L.R No. 7158/616
- 2.Costs of the application shall be in the cause
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over disputes relating to land
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benjamin Imalingat & Anne Wairimu Imalingat v Jolly Eloit Budds & Kyuna Limited (Environment & Land Case 8 of 2018) (Environment and Land) [2018] KEELC 361 (KLR)", Case Analysis (2018). High Court Constitutional Petition No. 404 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/361/eng@2018-11-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.