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ELCOtherELC Case (Ngong) – Notice of Motion dated 19th October, 2017· [2018] KEELC 3647 (KLR)

Seuri Legusi Sanoe v Statutory Manager United Insurance Co. Ltd (Under Statutory Management) & 4 others [2018] KEELC 3647 (KLR)

Environment and Land Court
25 April 2018
2,313 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land buyer who paid in full and lived on disputed land won protection through an inhibition order, though the court declined a full injunction.

What this practically means

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Executive summary

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The Plaintiff, Seuri Legusi Sanoye, moved the Environment and Land Court at Ngong by Notice of Motion dated 19th October 2017 seeking an interim injunction over land parcel KAJIADO/KIPETO/558. He contracted to buy the land from the 1st Defendant in 2004 for Kshs. 2,590,000, paid the deposit, took possession, and after the 1st Defendant entered receivership successfully bid in a 2012 tender, receiving a Letter of Offer dated 23rd August 2012 and completing payment in 2013. No transfer was effected. He discovered the 2nd Defendant claiming ownership and interfering with the land, and that the Green Card was missing when he attempted to lodge a caution. The 2nd Defendant, Kapaiko Ngussurr, opposed, asserting he purchased the land from FIDEI HOLDINGS LIMITED on 1st August 2012 for Kshs. 2,330,000 and obtained a title deed in 2015; the 1st Defendant did not oppose the application. Applying the Giella principles and Mrao definition of a prima facie case, the court found the Plaintiff's rights apparently infringed – the land was sold twice, the 1st Defendant's caution predated the sale to the 2nd Defendant, and the same individual received payments under both transactions – and that irreparable injury would follow given the existing title and prospective buyers. However, finding the competing claims best resolved at full trial, the court declined the injunction as sought, instead ordering an inhibition registered against the parcel and maintenance of the status quo, with costs in the cause.

Key legal issues

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01

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

Holding

Yes – the land was sold to both the Plaintiff and the 2nd Defendant, the Plaintiff completed payment and has been in possession since 2004, and the Green Card went missing

Reasoning

The Plaintiff contracted with the 1st Defendant in 2004, took possession, and after a 2012 tender and Letter of Offer completed payment in 2013. Yet a caution by the 1st Defendant existed on the Green Card even before the land was sold to the 2nd Defendant in 2012, and the same director received both purchases' payments. The court found the Plaintiff's rights apparently infringed, though the linkage questions are reserved for trial.

p. 3
02

Whether the Plaintiff would suffer irreparable injury not compensable by damages

Holding

Yes – the injuries are not speculative because the 2nd Defendant already holds title and is bringing potential buyers to the land

Reasoning

The suit land is already registered in the 2nd Defendant's name while the Plaintiff has been in open, actual possession since 2004, a fact uncontroverted by any Defendant. The 2nd Defendant has been bringing potential buyers to view the land, so the Plaintiff's apprehension of waste and alienation is real, not speculative, and monetary compensation would be inadequate.

p. 4
03

Balance of convenience and the appropriate interim relief

Holding

The title should be preserved, but since both parties stake a claim and the 2nd Defendant holds title, an inhibition order and status quo rather than an injunction was granted

Reasoning

The court was not in doubt that failure to preserve the title risked waste of the land. However, contested questions – including the linkage between the 1st Defendant and FIDEI HOLDINGS LIMITED and the validity of competing dispositions – can only be resolved at a full trial, so the court declined the injunction as framed and registered an inhibition instead.

p. 3

Legal principles established

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  • The principles for granting an interlocutory injunction are a prima facie case with probability of success, irreparable injury not compensable by damages, and, if in doubt, the balance of convenience
  • A prima facie case in civil cases is more than an arguable case; evidence must show an infringement of a right and probability of success at trial
  • An injury is irreparable only where it is actual, substantial and demonstrable and cannot adequately be compensated by damages

Court orders

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  1. 1.An inhibition order be registered by the Land Registrar Kajiado North against land parcel number KAJIADO/KIPETO/558 restraining any dealings, lease, subdivision, transfer or charge pending the hearing and determination of the suit
  2. 2.The obtaining status quo be maintained pending the hearing and determination of the suit
  3. 3.Costs in the cause
  4. 4.Parties urged to comply with Order 11 and set the suit down for hearing as soon as possible

Authorities

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Legislation

  • Civil Procedure ActSections 1, 1A, 3, 3A
  • Civil Procedure RulesOrder 40 rule 1; Order 11

Cases cited (5)

  • Giella Vs. Cassman Brown & Co. Ltd
    (1973) EA 358
  • Mrao Vs First American Bank Ltd & 2 Others
    (2003) KLR 125
  • Republic Vs. Rosemary Wairimu Munene; Ex-parte Applicant Vs Ihururu Dairy Farmers Co-operative Society Ltd
  • Mureithi Vs City Council of Nairobi
    Civil Appeal No. 5 of 1979
  • Nguruman Ltd. Vs. Jan Bonde Nielsen
    CA No. 77 of 2012
Jurisdiction invoked
Order 40 rule 1 of the Civil Procedure Rules 2010; Sections 1, 1A, 3, 3A of the Civil Procedure Act

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, "Seuri Legusi Sanoe v Statutory Manager United Insurance Co. Ltd (Under Statutory Management) & 4 others [2018] KEELC 3647 (KLR)", Case Analysis (2018). ELC Case (Ngong) – Notice of Motion dated 19th October, 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3647/eng@2018-04-25

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