Diana Lee Lasoi & another v John Kiptoo Cheruiyot & 2 others [2018] KEELC 2799 (KLR)
The bottom line
#A Nakuru court blocked the sale of disputed land, ruling the agents involved were unregistered and their contract likely illegal in Kenya.
What this practically means
#Executive summary
#Key legal issues
#Mandatory injunction at interlocutory stage
Prayers 5 and 6 refused; they amounted to mandatory injunctions that would determine the suit in a summary manner
The court found the prayers mirrored substantive prayers in the plaint. Relying on Lucy Wangui Gachara v Minudi Okemba Lore, it held mandatory injunctions at interlocutory stage require special circumstances or the clearest of cases, as they summarily determine disputes and deny parties a full hearing with cross-examination. No special circumstances were shown.
Permanent injunction on interlocutory application
Refused; such relief can only be granted after a full hearing of the suit
The court held that granting a permanent injunction on a notice of motion would in effect amount to granting final judgment without trial. The proper remedy at the interlocutory stage is a temporary injunction pending hearing and determination of the suit.
Interlocutory injunction - prima facie case and irreparable harm
Granted; plaintiffs established a prima facie case with probability of success and would suffer irreparable damage if the suit property were sold
Applying Giella as sequenced in Nguruman, the court found the 2nd and 3rd defendants intended to sell the suit property to recover commission under an agency agreement with the 1st defendant. That agreement might be unenforceable for illegality since the agents were unregistered under the Estate Agents Act, giving the plaintiffs a prima facie case; sale before trial would cause irreparable damage.
Illegality of unregistered estate agents' contract
Under sections 7 and 18 of the Estate Agents Act (Cap 533), it would be illegal and a criminal offence for unregistered persons to practise as estate agents
A letter from the Estate Agents Registration Board dated 11th May 2017 confirmed the 2nd and 3rd defendants were unregistered, and they offered no evidence to challenge it. Following Mapis Investment (K) Limited v Kenya Railways Corporation, a contract to perform estate agency services is only legal if made with a registered agent; the agency agreement might therefore be unenforceable for illegality.
Legal principles established
#- All three Giella conditions are separate, distinct and logical hurdles to be surmounted sequentially; if no prima facie case, the other limbs need not be considered
- Mandatory injunctions at the interlocutory stage should not be granted absent special circumstances or in the clearest of cases
- A contract for estate agency services can only be legal if entered into with a registered estate agent
Court orders
#- 1.Prayers 4, 5 and 6 of the Notice of Motion dismissed
- 2.An injunction granted restraining the defendants from advertising or selling the property known as Nakuru/Olenguruone/Cheptuech/269 pending hearing and determination of the suit
- 3.Costs of the application awarded to the plaintiffs
- Jurisdiction invoked
- Original civil jurisdiction over land disputes; notice of motion for interlocutory relief under civil procedure (no specific constitutional provision invoked)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Diana Lee Lasoi & another v John Kiptoo Cheruiyot & 2 others [2018] KEELC 2799 (KLR)", Case Analysis (2018). Notice of Motion dated 3rd November 2016 (suit at Nakuru, Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2799/eng@2018-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.