Joseph Aswani Imbusi v Joseph Aswani Imbusi [2018] KEELC 3162 (KLR)
The bottom line
#A Kakamega court protected a land buyer's rights with an inhibition order, but refused to punish either side for contempt.
What this practically means
#Executive summary
#Key legal issues
#Whether the defendant proved contempt of the ex parte orders of 6th February 2014
The contempt application failed; no breach of the order was proved. The order of 6th February 2014 restrained only disposal of the ¾ acre and did not permit or forbid construction.
The court perused the file and noted that the ex parte order granted on 6th February 2014 restrained the defendant from disposing of the ¾ acre portion only. It did not grant the plaintiff leave to re-construct his house, but equally the defendant failed to adduce evidence of breach of that specific order. Absent proof of disobedience of the actual order, the committal prayer could not succeed and the Motion was dismissed.
Whether the plaintiff established a prima facie case for an interlocutory injunction
Yes. It was not disputed that the defendant, the registered owner, agreed to sell ¾ acre to the plaintiff at Kshs.80,000 in June 2005; the plaintiff showed a prima facie case with probability of success.
Applying the Giella v Cassman Brown principles as elaborated in Mrao Ltd v First American Bank of Kenya Ltd, the court found that the undisputed sale agreement over the ¾ acre portion of the registered parcel demonstrated an apparent infringement of a right. The plaintiff had purchased the land, established his marital home thereon, and faced threatened disposal to a third party, justifying preservation orders pending trial.
Legal principles established
#- The conditions for granting an interlocutory injunction in East Africa are those in Giella v Cassman Brown: prima facie case with probability of success, irreparable injury not adequately compensable in damages, and, in doubt, balance of convenience
- A prima facie case is one in which, on the material presented, a tribunal properly directing itself will conclude that a right has apparently been infringed so as to call for an explanation or rebuttal from the opposite party; it is more than an arguable case
Court orders
#- 1.Dismissal of the defendant's contempt application dated 9th June 2014
- 2.An inhibition order to issue against any dealings with Land parcel No. BUTSOTSO/INGOTSE/2003 pending the hearing and determination of this case
- 3.That the status quo be maintained on Land parcel No. BUTSOTSO/INGOTSE/2003 pending the hearing and determination of this case
- 4.Costs of both applications to be in the cause
- Jurisdiction invoked
- Order 40 rules 1(a) & (b) and 3(1), 3(3), 9, 10 and 11 of the Civil Procedure Rules, 2010; sections 3, 3A and 63(c) of the Civil Procedure Act (Cap 21)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Aswani Imbusi v Joseph Aswani Imbusi [2018] KEELC 3162 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3162/eng@2018-05-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.