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ELCAllowedNot stated in reconstructed file (original file lost and reconstructed)· [2018] KEELC 2407 (KLR)

Julie Mukami Kanyoko & 2 others v Samuel Mukua Kamere & another [2018] KEELC 2407 (KLR)

Environment and Land Court
29 June 2018
BEB M Eboso
632 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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Buyers who paid for land and took possession can get court-ordered police protection against sellers who try to reclaim the property before the case ends.

What this practically means

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Executive summary

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This is a first-instance interlocutory ruling in a reconstructed land sale file. The plaintiffs sued in 2011 for, among other reliefs, specific performance of a 2007 agreement under which the defendants agreed to sell them LR Number 27/347 (0.1817 ha) in Ridgeways, Nairobi for Kshs 3,500,000 payable in instalments, the last instalment of Kshs 1,000,000 falling due on registration. The plaintiffs claimed to have paid beyond the agreed instalments, leaving only Kshs 250,000 outstanding. In 2013 Mutungi J set aside an interlocutory judgment but refused the defendants leave to defend out of time, directing formal proof; the Court of Appeal declined the defendants' attempt to appeal out of time. By a Notice of Motion dated 31/1/2018, the plaintiffs sought an injunction restraining the defendants from entering, demolishing or interfering with their possession of the suit property pending determination of the suit, and an order compelling the OCS Muthaiga Police Station to enforce the injunction following a December 2017 trespass in which trees were cut. The application was unopposed. Applying Giella v Cassman Brown, and noting that the specific performance claim was undefended and the plaintiffs had demonstrated performance and possession since 2007, the court found the first and second limbs satisfied. The motion was allowed in terms of prayers 3 and 4 and the suit set down for formal proof forthwith.

Key legal issues

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01

Interim injunction pending formal proof in an undefended land sale suit

Holding

Interim injunction granted in terms of prayers 3 and 4 of the motion, plus an OCS enforcement order, because the claim was undefended and the plaintiffs' evidence showed a sale agreement, performance, and possession since 2007.

Reasoning

The court noted the suit for specific performance and damages was undefended following the setting aside of interlocutory judgment and refusal of leave to defend out of time. The plaintiffs had placed uncontroverted evidence of the 2007 sale agreement, payment beyond the agreed instalments, and possession since 2007, including the December 2017 trespass and tree-cutting. On that background the court found the first and second Giella limbs satisfied and allowed the motion, directing formal proof forthwith.

p. 2

Legal principles established

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  • An unopposed interlocutory application for injunction will be granted where the applicant's uncontroverted evidence establishes a prima facie case and irreparable harm, with the balance of convenience favouring the applicant (Giella v Cassman Brown test).

Court orders

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  1. 1.The Notice of Motion dated 31/1/2018 allowed in terms of prayers 3 and 4
  2. 2.The 1st and 2nd Defendants, jointly and severally, their servants, agents and employees restrained from entering, demolishing or otherwise interfering with the plaintiffs' quiet enjoyment and/or possession of the suit property pending hearing and determination of the suit
  3. 3.The OCS Muthaiga Police Station ordered to ensure compliance with the order of injunction restraining the defendants from acts of trespass, malicious damage and attempts to seize possession of the suit property by force
  4. 4.The suit to be set down for formal proof forthwith

Authorities

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Cases cited (1)

  • Giella v Cassman Brown
    (1973) EA 358
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a land sale/specific performance dispute (statutory provision not cited in the reconstructed file)

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, "Julie Mukami Kanyoko & 2 others v Samuel Mukua Kamere & another [2018] KEELC 2407 (KLR)", Case Analysis (2018). Not stated in reconstructed file (original file lost and reconstructed). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2407/eng@2018-06-29

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