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ELCDismissedNot stated in the judgment excerpt· [2018] KEELC 3929 (KLR)

Boaz Ogola Abiero v Joan Atieno Dima & 4 others [2018] KEELC 3929 (KLR)

Environment and Land Court of Kenya
20 March 2018
AOA. Omollo
1,255 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court refused to stop a land sale because the buyer only stood to lose a refundable deposit and had waited five years to act.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Mombasa determined the plaintiff's notice of motion dated 1st September 2017 seeking a temporary injunction and inhibition restraining the 1st and 2nd defendants, the registered owners of land Title No. 2445/VI/MN and 2446/VI/MN at Port Reitz, Mombasa, from charging, leasing, transferring or parting with possession of the suit land pending determination of the suit. The applicant claimed a purchaser's interest under a sale agreement dated 28.11.2012, having paid a deposit of Kshs 9,100,000, and feared his interest would be ignored given the defendants' alleged dealings and a threatened compulsory acquisition. The 2nd defendant, Michael Ochok, denied receipt of the full deposit (asserting only Kshs 7 Million was paid), contended the 90-day completion period had expired in February 2013, that negotiations in 2015 had culminated in an understanding the deposit would be refunded, and that the applicant was a sham entity used to further frauds by Taib Abdalla. The applicant filed no further affidavit or submissions. The court, assuming a prima facie case, decided the application on irreparable harm and delay: the applicant's interest was a quantifiable pecuniary sum recoverable as a refund, he did not plead the defendants' inability to refund, and he was guilty of about five years' unexplained laches. Following Abigael Barmao v Mwangi Theuri, the court held that delay defeats equity. The application was dismissed as without merit and an abuse of court process, with costs to the 1st and 2nd defendants. The main suit remains pending, with the plaintiff retaining the right to recover his deposit if his claim succeeds.

Key legal issues

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01

Whether a temporary injunction should issue over land subject to a failed sale agreement

Holding

No - although the applicant may have a prima facie case, his interest is a quantifiable pecuniary one (the deposit of Kshs 7 or 9.1 Million) refundable in damages, and the application was brought after about five years' unexplained delay

Reasoning

The court accepted the applicant might have a prima facie case based on the sale agreement but analysed the application on irreparable harm. The interest claimed was purely pecuniary - the deposit under the sale agreement - and the applicant never pleaded the defendants were incapable of refunding it. Further, the transaction was concluded in 2012 and no demand for specific performance or refund was evidenced; the applicant slept on his rights for about five years. Equitable relief will not aid stale demands. The suit's final orders could still restore the money.

p. 2
02

Whether delay/laches disentitles an applicant to equitable injunctive relief

Holding

Yes - an applicant guilty of about five years' laches without proper explanation is not deserving of injunctive reliefs

Reasoning

Relying on the Abigael Barmao decision quoting Snell's Equity and Smith v Clay, the court held that a court of equity refuses its aid to stale demands where a party has slept on his rights. The sale transaction occurred in 2012, the application was filed in 2017, and no explanation for the delay was offered. Injunction being an equitable remedy, delay defeats it.

p. 2

Legal principles established

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  • Where a purchaser's loss is quantifiable as a refund of the purchase deposit and he does not plead the defendant's inability to refund, damages are an adequate remedy and a temporary injunction will be refused
  • Delay defeats equity; an applicant for injunctive relief who is guilty of unexplained laches is not deserving of the equitable relief of injunction

Court orders

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  1. 1.The notice of motion dated 1st September 2017 is dismissed
  2. 2.Costs of the application to the 1st and 2nd defendants

Authorities

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Legislation

  • Land Registration Actsection 68
  • Civil Procedure Actsection 63
  • Civil Procedure RulesOrder 40 rule 1

Cases cited (1)

  • Abigael Barmao vs Mwangi Theuri
    (2013) eKLR
Jurisdiction invoked
Section 68 of the Land Registration Act, section 63 of the Civil Procedure Act and Order 40 rule 1 of the Civil Procedure Rules

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, "Boaz Ogola Abiero v Joan Atieno Dima & 4 others [2018] KEELC 3929 (KLR)", Case Analysis (2018). Not stated in the judgment excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3929/eng@2018-03-20

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