Anthony Mbugua Njihia & 4 others v Urithi Housing Cooperative Society Ltd & another [2019] KEELC 373 (KLR)
The bottom line
#A Kenyan court blocked a bank from selling land plots because homebuyers had fully paid, taken possession, and were issued ownership certificates.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicants established a prima facie case
Yes - full payment of purchase price, possession and ownership certificates created an interest based on constructive trust, unrebutted by the Respondents
The Applicants exhibited sale agreements, payment receipts, acknowledgments and ownership certificates, and were in possession of the plots. The 1st Respondent did not oppose; the 2nd Respondent claimed to be a stranger to the sales, but the loan restructuring agreement showed repayment was to come from sale of the plots. The court found the Applicants' rights apparently infringed or threatened, calling for rebuttal, which the Respondents did not provide.
Whether the Applicants would suffer irreparable loss not compensable by damages
Yes - land disputes evoke emotion and a party with financial means should not be permitted to infringe rights merely because it can pay damages
Relying on Muiruri v Bank of Baroda and Shiva Carriers v Imperial Bank, the court held that loss in land matters goes beyond monetary compensation and that allowing a financially strong chargee to sell land it knows is fully sold would offend Article 27 of the Constitution. The waiver of statutory notices under para K of the restructuring agreement meant the plots could be sold without any notice, prejudicing the Applicants.
Balance of convenience
It tilts in favour of issuing the injunction preserving the suit land pending trial
Given that the Applicants had paid in full and taken possession, and the 2nd Respondent could recover from the loan account which continues to accrue interest, restraining sale of the land pending hearing of the suit was the convenient course. Whether the Applicants are bona fide purchasers for value without notice was left to the trial court.
Legal principles established
#- A prima facie case in a civil application is a genuine and arguable case in which a right has apparently been infringed so as to call for an explanation or rebuttal
- The principles for granting an interlocutory injunction are those in Giella v Cassman Brown: prima facie case, irreparable injury not compensable by damages, and balance of convenience
- A party should not be allowed to transgress on the rights of another merely because it has the financial ability to pay damages
Court orders
#- 1.An interim injunction restraining the 2nd Defendant/Respondent, whether by itself, servants and/or agents, from offering for sale, selling or dealing with land title L.R No. 11486/6 Panorama Estate in any manner whatsoever pending the hearing and determination of this suit
- 2.Costs of the application to be met by the 2nd Respondent
- Jurisdiction invoked
- Original civil jurisdiction; interim relief under Order 40 Rule 1(a) and (b) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ngatho & another (Both Suing as Administrators of the Estate of Wanjiku Njau - Deceased) v Kigo & another[2023] KEELC 20170 (KLR)28 Sept 2023
Cite this brief
#Cite this brief
Caselaw, "Anthony Mbugua Njihia & 4 others v Urithi Housing Cooperative Society Ltd & another [2019] KEELC 373 (KLR)", Case Analysis (2019). Not stated in the judgment (Notice of Motion dated 16/7/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/373/eng@2019-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.