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ELCOtherNot stated in the judgment excerpt· [2019] KEELC 1088 (KLR)

Nicholas Thuo Kabaiku v Serah Njeri Mbatia [2019] KEELC 1088 (KLR)

Environment and Land Court
31 October 2019
2,740 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan land buyer failed to get an injunction but secured an inhibition protecting the property, after the court threw out the seller's brother's affidavit.

What this practically means

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Executive summary

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The plaintiff and defendant entered an agreement for sale dated 8th September, 2017 over L.R No. 15003/30 (I.R 90348) for Kshs. 30,000,000/=, with a deposit of Kshs. 2,800,000/= and completion date of 8th December, 2017. Both parties were represented by the same firm, Righa & Mburu Advocates. The plaintiff's financier's advocates, Kale Maina & Bundotich Advocates, gave a professional undertaking on 17th November, 2017 to pay the balance of Kshs. 27,200,000/= within 15 days of simultaneous registration of the transfer and charge. Instead of releasing completion documents to the bank's advocates, Righa & Mburu Advocates lodged the transfer for registration, indicating a purchase price of Kshs. 5,000,000/=, prompting the defendant to block the registration. The defendant then served a three-day rescission notice dated 9th February, 2018, prompting this suit filed on 10th May, 2018 together with a Notice of Motion seeking a temporary injunction. The defendant's replying affidavit was sworn by her brother, William Ngugi Mbatia, purportedly under her authority. The court held that Order 4 Rule 1(4) of the Civil Procedure Rules applies only to corporations, that the deponent was a stranger to the proceedings with no evidential basis, and rejected the affidavit as incompetent. Treating the application as undefended, the court nevertheless required the plaintiff to meet the Giella v Cassman Brown threshold. Finding the contested issues unresolvable on affidavit evidence, the court declined the injunction, extended the existing order of inhibition until hearing and determination of the suit, and made costs of the application costs in the cause.

Key legal issues

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01

Competency of the defendant's replying affidavit sworn by an agent

Holding

The affidavit of William Ngugi Mbatia sworn on 5th June, 2018 is incompetent and was rejected; the court treated the application as undefended.

Reasoning

Order 4 Rule 1(4) of the Civil Procedure Rules permitting an authorised officer to swear a verifying affidavit applies only to corporations. The deponent is a stranger to the transaction, did not state his depositions were within his own knowledge, and his being the defendant's brother gives him no standing. The attachments also indicated the affidavit was sworn by Serah Njeri, which was not the case.

p. 2
02

Whether the plaintiff established a prima facie case for a temporary injunction

Holding

No prima facie case with probability of success or irreparable harm was demonstrated on the affidavit material.

Reasoning

The parties give conflicting accounts of the instructions given to Righa & Mburu Advocates after receipt of the bank's professional undertaking, and the firm has not explained its actions. Whether the plaintiff or defendant caused the non-completion of the agreement turns on contested facts that cannot be determined without oral evidence.

p. 3
03

Appropriate interim protection pending trial

Holding

An existing order of inhibition was extended until hearing and determination of the suit, preserving the suit property.

Reasoning

Applying Giella v Cassman Brown and Nguruman Limited v Jan Bonde Nielsen, the court found the balance of convenience favoured preservation of the suit property. That preservation had already been achieved by the inhibition order made on 10th May, 2018, which the court extended.

p. 3

Legal principles established

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  • A natural person cannot authorise an agent (including a sibling) to swear a replying affidavit on their behalf in their own suit; only corporations may do so under Order 4 Rule 1(4) of the Civil Procedure Rules, and an affidavit deponed by a stranger to the transaction has no evidential value.
  • Even where an application is undefended, the applicant must still satisfy the Giella v Cassman Brown test for a temporary injunction.
  • Where fault for non-completion of a sale agreement cannot be determined on affidavit evidence, the balance of convenience favours preservation orders (inhibition) pending trial rather than an injunction.

Court orders

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  1. 1.The interim injunction sought by the plaintiff was not granted; instead the order of inhibition made on 10th May, 2018 was extended until the hearing and final determination of the suit or further orders of the court
  2. 2.Costs of the application were made costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 4 Rule 1(4)

Cases cited (3)

  • Giella v. Cassman Brown & Co. Ltd
    (1973) E.A 358
  • Nguruman Limited v. Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • Mrao Limited v. First American Bank of Kenya Limited & 2 Others
    [2003] KLR 125
Jurisdiction invoked
Original civil jurisdiction over a land sale dispute (statutory basis not stated in the judgment)

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, "Nicholas Thuo Kabaiku v Serah Njeri Mbatia [2019] KEELC 1088 (KLR)", Case Analysis (2019). Not stated in the judgment excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1088/eng@2019-10-31

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