Daniel Tumbes Olonapa v Briton (K) Ltd & 2 others [2018] KEELC 3472 (KLR)
The bottom line
#A Kenyan court blocked further dealings with Kajiado land sold for Sh90 million when the buyer paid only Sh920,000, then transferred it anyway.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff established a prima facie case with a probability of success
Yes - the Plaintiff had not been paid the purchase price while the 1st Defendant transferred the suit land to a third party.
The Sale Agreement and the payment of only Kshs. 920,000 out of Kshs. 90 million were not disputed. The 1st Defendant subdivided and transferred the land to the 2nd Defendant, who used the title to obtain a bank loan, all without the Plaintiff's consent. Applying Mrao Ltd v First American Bank, the evidence showed an apparently infringed right with probability of success at trial, more than an arguable case.
Whether the Plaintiff would suffer irreparable harm not compensable by damages
Yes - the alleged injuries were actual and not speculative.
The Plaintiff had only received a deposit of Kshs. 920,000 against a purchase price of Kshs. 90 million. The suit land had already been transferred to a third party who continued to transact on it, including using the title to secure a bank loan, without regard to the Plaintiff's rights. Relying on Nguruman Ltd v Jan Bonde Nielsen, the harm was actual, substantial and demonstrable rather than speculative.
Where the balance of convenience lies
It tilts in favour of the Plaintiff whose rights were being infringed.
The Defendants continued dealing with the suit land without the Plaintiff's consent while the 1st Defendant remained unpaid beyond the deposit. Preserving the status quo pending trial favoured the Plaintiff, whose contractual and proprietary rights were in issue.
Legal principles established
#- For an interlocutory injunction the applicant must demonstrate a prima facie case with probability of success, irreparable loss not compensable in damages, and if in doubt, the court decides on a balance of convenience (Giella v Cassman Brown).
Court orders
#- 1.The Plaintiff's Notice of Motion dated the 14th November, 2016 is allowed as prayed (temporary injunction orders pending the outcome of the suit)
- Jurisdiction invoked
- Order 40 rule 1 of the Civil Procedure Rules and Sections 1, 1A, 3, 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Daniel Tumbes Olonapa v Briton (K) Ltd & 2 others [2018] KEELC 3472 (KLR)", Case Analysis (2018). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3472/eng@2018-04-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.