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ELCAllowedNot stated in judgment (Notice of Motion dated 7th December 2016)· [2018] KEELC 2850 (KLR)

Pius Mutune v John Kaingu Kenga & 2 others [2018] KEELC 2850 (KLR)

Environment and Land Court
28 June 2018
JOJ. O. Olola
1,041 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court blocked a buyer from building on land that had already been sold to someone else first, confirming the first rightful purchaser wins.

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 7th December 2016 seeking a temporary injunction restraining the Defendants from interfering with or developing an unsurveyed, unregistered parcel of land at Takaye within Plot M1, pending hearing of the main suit. The Plaintiff, a donee of a power of attorney from Pauline Ngori, averred that the donor purchased the 80ft by 90ft parcel from the 3rd Defendant on 5th December 2014, only to learn that the 2nd Defendant claimed the same land from the 1st Defendant and had commenced construction. The 2nd Defendant, Josephat Kenga Chipanga, swore he bought the land (92 x 82 ft) from the 1st Defendant on 16th July 2013; the 3rd Defendant, Jackson Kazungu, countered that he bought it earlier, on 16th July 2012, and later sold it to the Plaintiff. Applying the Giella v Cassman Brown principles and the Mrao definition of a prima facie case, the court found the 1st Defendant had sold the parcel twice, first to the 3rd Defendant, so that when he purported to sell to the 2nd Defendant he had no interest capable of transfer. The court noted the dispute had earlier gone to the Area Chief, and that the 2nd Defendant began construction fully aware of the Plaintiff's claim. Holding that this infringed the Plaintiff's property rights, the court found the application meritorious and allowed it with costs, granting the injunction pending trial.

Key legal issues

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01

Whether the Plaintiff established a prima facie case with probability of success

Holding

Yes - the land had first been sold to the 3rd Defendant who transferred it to the Plaintiff, so the 2nd Defendant's construction infringed the Plaintiff's property rights

Reasoning

The court found on the material that the 1st Defendant sold the parcel to the 3rd Defendant on 16th July 2012, then sold the same parcel to the 2nd Defendant in 2013 when he no longer had any transferable interest. The 2nd Defendant built while fully aware of the Plaintiff's claim, an infringement of the Plaintiff's rights entitling her to the court's protection.

p. 2
02

Whether an interlocutory injunction should issue

Holding

Yes - the application was found meritorious and allowed

Reasoning

Having satisfied itself on the first Giella principle (prima facie case), and given that the 2nd Defendant was knowingly constructing on land claimed by the Plaintiff, the court found the balance favoured preserving the status quo pending trial and allowed the application with costs.

p. 2

Legal principles established

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  • The principles for grant of an interlocutory injunction are a prima facie case with probability of success, irreparable injury not compensable by damages, and balance of convenience
  • A seller without an interest in land cannot pass title; the first purchaser who rightfully acquired takes priority over a subsequent purported purchaser

Court orders

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  1. 1.Temporary injunction restraining the Defendants from interfering with the suit premises or carrying out any development therein pending the hearing and determination of the main suit
  2. 2.Costs of the application awarded to the Plaintiff

Authorities

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Cases cited (2)

  • Giella –vs- Cassman Brown & Company Ltd
    (1973) 1EA 358
  • Mrao Ltd –vs- First American Bank of Kenya Ltd & 2 Others
    (2003) eKLR
Jurisdiction invoked
Not expressly stated; interlocutory application in a pending land suit

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, "Pius Mutune v John Kaingu Kenga & 2 others [2018] KEELC 2850 (KLR)", Case Analysis (2018). Not stated in judgment (Notice of Motion dated 7th December 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2850/eng@2018-06-28

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