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ELCDismissed· [2018] KEELC 929 (KLR)

Hafsa Kassim Sheikh v Esther Gloria Mwihaki Bell & 3 others [2018] KEELC 929 (KLR)

Environment and Land Court
2 November 2018
BEB M Eboso
4,444 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling on the plaintiff's notice of motion dated 13/9/2018 in a suit arising from a sale agreement of 15/1/2016 in which the 1st defendant agreed to sell LR No. 209/7153/29 to the plaintiff for Kshs 201,000,000. The plaintiff paid Kshs 164,000,000 before the agreement was rescinded; Kshs 131,506,100 was refunded in November 2016 and Kshs 20,100,000 retained as liquidated damages. The property was sold to the 3rd defendant on 31/10/2016, transferred to the 4th defendant in November 2017, and nine villas were developed and largely sold to third parties. The plaintiff sued alleging fraud, illegality and breach of contract, and sought interlocutory temporary injunctions and an inhibition against further dealings with the property. The 1st defendant maintained the plaintiff breached the payment terms, justifying rescission; the 2nd defendant (the advocate for both parties) contended she issued a valid completion notice and that the plaintiff had executed a discharge exonerating her; the 3rd and 4th defendants pleaded innocence as purchasers for value and prejudice from halted construction. Eboso J framed a single issue: whether the plaintiff satisfied the Giella v Cassman Brown criteria for an interlocutory injunction. He found no prima facie case with probability of success - the property had been irretrievably developed and sold to third parties, making specific performance unlikely and damages adequate, as the plaintiff's own alternative plea of Kshs 309,000,000 acknowledged. Her 21-month delay after the refund also disentitled her to equitable relief. The application was dismissed with costs to the defendants, the interim orders lapsed, and the matter was set for pre-trial directions.

Key legal issues

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01

Whether the plaintiff established a prima facie case with a probability of success warranting an interlocutory injunction against the 3rd and 4th defendants

Holding

She did not; the property had been sold, transferred and developed into housing units sold to third parties, and specific performance would likely be unavailable, with damages the appropriate remedy

Reasoning

The court held it makes no definitive findings at interlocutory stage, but on the material presented the character of the property had drastically changed between October 2016 and September 2018. The units were nearing completion and had been sold to third parties not before the court. The plaintiff delayed 21 months after receiving her refund, and she herself pleaded an alternative claim for damages of Kshs 309,000,000, indicating damages would be an adequate remedy.

p. 5
02

Whether the plaintiff's delay of 21 months before moving the court disentitled her to equitable relief

Holding

Yes; her indolence weighed decisively against the grant of an interlocutory injunction

Reasoning

The plaintiff received a refund of the purchase price in November 2016 but did not file suit until September 2018, during which period the property was transferred and developed with her knowledge. An applicant seeking the equitable remedy of an injunction must act promptly; allowing the property's character to change irretrievably defeats any claim to injunctive relief.

p. 5

Legal principles established

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  • Interlocutory injunctions are granted on the Giella v Cassman Brown criteria: prima facie case with probability of success, irreparable injury not compensable by damages, and balance of convenience if in doubt
  • A prima facie case is more than an arguable case; the evidence must show an infringement of a right and probability of success at trial (Mrao Ltd v First American Bank of Kenya Ltd)
  • Equity does not aid the indolent: a party seeking an interlocutory injunction must move the court promptly upon learning of the invasion of its rights

Court orders

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  1. 1.The plaintiff's notice of motion dated 13/9/2018 is dismissed
  2. 2.The interim orders which subsisted during the hearing of the application automatically lapse
  3. 3.The defendants shall have costs of the application
  4. 4.The case to be given a mention date for pre-trial before the Deputy Registrar

Authorities

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Legislation

  • Land Registration ActSections 24 and 25

Cases cited (3)

  • Giella v Cassman Brown & Co. Ltd
    (1973) EA 358
  • Mrao Limited vs. First American Bank of Kenya Limited & 2 others
    (2003) KLR 125
  • Nguruman Limited vs. Jan Bonde Nielsen & 2 Others
    [2014] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes; interlocutory notice of motion under the plaint dated 13/9/2018

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, "Hafsa Kassim Sheikh v Esther Gloria Mwihaki Bell & 3 others [2018] KEELC 929 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/929/eng@2018-11-05

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