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ELCPartially Allowed· [2018] KEELC 3162 (KLR)

Joseph Aswani Imbusi v Joseph Aswani Imbusi [2018] KEELC 3162 (KLR)

Environment and Land Court / High Court of Kenya at Kakamega (as constituted)
31 May 2018
2,386 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The court determined two interlocutory applications arising from a land sale dispute over a ¾ acre portion of Land Parcel No. Butsotso/Ingotse/2003. The plaintiff alleged he purchased the ¾ acre from the defendant, the registered owner, for Kshs.80,000 in June 2005, established his marital home thereon, and filed suit for specific performance after the defendant declined to attend a second Land Control Board meeting. By a Motion dated 3rd February 2014 under Order 40 rule 1 of the Civil Procedure Rules, he sought orders restraining the defendant from disposing of the portion or preventing him from re-constructing a house razed by arson in October 2013. On 6th February 2014 Dulu J granted ex parte orders restraining disposal only. The plaintiff then constructed a semi-permanent house on the land on 22nd February 2014, prompting the defendant's Motion dated 9th June 2014 seeking the plaintiff's committal to prison for six months for contempt, and alleging the plaintiff had purported to sell the portion to one Chetina Indazi for Kshs.400,000. The plaintiff countered that the order did not restrain construction and that Chetina was his aunt looking after the house. Applying the Giella v Cassman Brown principles as elaborated in Mrao Ltd v First American Bank, the court dismissed the contempt application for want of evidence of breach, finding the 6th February 2014 order restrained disposal only. It found the plaintiff had established a prima facie case with probability of success given the undisputed sale agreement, and issued an inhibition order against any dealings with the parcel and directed maintenance of status quo pending hearing and determination of the suit. Costs of both applications were ordered to be in the cause. Delivered at Kakamega on 31st May 2018 by N.A. Matheka J.

Key legal issues

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01

Whether the defendant proved contempt of the ex parte orders of 6th February 2014

Holding

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.

Reasoning

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.

p. 3
02

Whether the plaintiff established a prima facie case for an interlocutory injunction

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Dismissal of the defendant's contempt application dated 9th June 2014
  2. 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. 3.That the status quo be maintained on Land parcel No. BUTSOTSO/INGOTSE/2003 pending the hearing and determination of this case
  4. 4.Costs of both applications to be in the cause

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 40, rules 1(a) & (b), 3(1), 3(3), 9, 10 and 11
  • Civil Procedure Act, Cap 21 Laws of KenyaSections 3, 3A and 63(c)
  • Constitution of Kenya, 2010Right to housing (referred to in submissions)

Cases cited (2)

  • Giella vs. Cassman Brown
    (1973) EA 358
  • Mrao Ltd vs. First American Bank of Kenya Ltd & 2 others
    (2003)
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

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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, "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.