Francis Amulioto Hosea Sakwa & 4 others v Muktar Abshir & 5 others [2019] KEELC 720 (KLR)
The bottom line
#A Kenyan court ruled that land sold in defiance of a court order is void, so the buyers' title claim failed and construction on the property was stopped.
What this practically means
#Executive summary
#Key legal issues
#Whether the sale of the suit property by Francis Nyaga Njeru to the 2nd defendant in defiance of a subsisting injunction order conferred any valid title
The sale was in contempt of court, illegal, null and void, giving the plaintiffs a prima facie case with a probability of success
It was undisputed that a court order of 6th October 2016 in ELC No. 607 of 2016 restrained Francis Nyaga Njeru from selling the suit property while the sale agreement of 1st December 2017 was entered into. Citing Clarke v Chadburn, an act done in willful disobedience of a court order is contemptuous, illegal and invalid. Applying Scott v Brown, the court cannot lend its aid to enforce an illegal contract, so the agreement was null and void and the plaintiffs established a prima facie case.
Whether the 2nd defendant's claim to be a bona fide purchaser for value without notice defeats the injunction
No - even a bona fide purchaser's title would be subject to the deceased's legal title if Francis Nyaga Njeru held a fraudulent title
The court acknowledged the strength of the innocent purchaser argument but held that if at trial Francis Nyaga Njeru is found to hold a fraudulent and illegal title, the 2nd defendant's title must give way. Relying on Alberta Mae Gacie v Attorney General and the Court of Appeal decision in Arthi Highway Developers Ltd v West End Butchery Ltd, the bona fide purchaser doctrine cannot enable a purchaser to take land free from legal rights.
Whether the 18th June 2018 status quo order should be set aside for misrepresentation and non-disclosure
No - the order was made inter partes, not ex-parte, and would lapse upon determination of the plaintiffs' application
The court found the authorities cited by the 1st and 2nd defendants distinguishable because the order sought to be set aside was made in the presence of both parties, not ex-parte, and the court was not swayed by any misrepresentation. Further, the order was merely for maintenance of status quo pending the hearing of the plaintiffs' application and would be spent once that application was determined; since the court found the plaintiffs entitled to a temporary injunction, the setting-aside application had no merit.
Whether the conditions for a temporary injunction were met
Yes - a prima facie case was established and irreparable harm not compensable by damages was shown
Applying the Giella v Cassman Brown principles, the court was satisfied on uncontroverted evidence that the property was sold in defiance of an express court order, establishing a prima facie case with probability of success. The court was also persuaded that the plaintiffs would suffer irreparable harm which cannot be compensated by an award of damages, satisfying the conditions for a temporary prohibitory injunction. However, mandatory injunction and declaratory relief were premature at the interlocutory stage.
Legal principles established
#- An act done in willful disobedience of an injunction or court order is a contempt of court and is illegal and invalid, effecting no change in the rights and liabilities of others
- No court ought to enforce an illegal contract or allow itself to be made an instrument of enforcing obligations arising out of an illegal transaction
- The doctrine of bona fide purchaser for value without notice cannot enable a purchaser to take land free from legal rights
- A temporary mandatory injunction requires a very strong case and will only be granted in exceptional circumstances
Court orders
#- 1.The plaintiffs' application dated 30th May 2018 allowed in part in terms of prayer 2 (order stopping any construction on the suit property) pending the hearing and determination of the suit
- 2.The limb of the plaintiffs' application seeking police assistance refused
- 3.The 1st and 2nd defendants' application dated 21st September 2018 seeking to set aside the status quo order dismissed
- 4.Costs of the two applications to be in the cause
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes (interlocutory applications in a pending suit); no specific constitutional provision cited
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Francis Amulioto Hosea Sakwa & 4 others v Muktar Abshir & 5 others [2019] KEELC 720 (KLR)", Case Analysis (2019). ELC Case of 2018 (Nairobi) - suit concerning L.R No. 36/VII/157; related suits: Milimani ELC No. 607 of 2016 and Nairobi ELC No. 356 of 2018 (Hibo Group Ltd v Francis Nyaga Njeru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/720/eng@2019-11-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.