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ELCAllowedNot stated in judgment· [2019] KEELC 3168 (KLR)

Florence Ndunge Mulwa v Jeremiah Mutavi Simba & 3 others [2019] KEELC 3168 (KLR)

Environment and Land Court
24 May 2019
OAO.A. Angote
2,153 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court in Machakos stopped the sale of disputed Konza land, ruling the owner proved her case and money couldn't fix a wrongful resale.

What this practically means

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Executive summary

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The Plaintiff applied by Notice of Motion dated 29th August 2018 for an interlocutory injunction restraining the Defendants from selling, alienating, transferring or interfering with 61 parcels of land derived from Konza North/Konza North Block 2 (Malili)/237 pending determination of the suit. She claimed she bought Plot No. 1674 of Malili Ranch from the 1st Defendant for Kshs. 6,000,000, paid the full price plus transfer fees, and obtained registration, only for the 1st Defendant to resell the land to the 2nd-4th Defendants, who subdivided it. The 1st Defendant asserted the price was Kshs. 9,000,000, that only Kshs. 6,000,000 was paid, and that the Plaintiff consented to the resale by an Agreement of 4th November 2017 and an affidavit. The 2nd-4th Defendants claimed they purchased in good faith for a self-help group and had invested in the land. The court applied the Nguruman and Mrao tests. It found the two versions of the sale agreement irreconcilable and evidently one a forgery; noted the 1st Defendant transferred the land to the Plaintiff before full payment, supporting the Kshs. 6,000,000 price; and found no evidence the Plaintiff signed any agreement or transfer to the 2nd-4th Defendants. A prima facie case and irreparable injury having been established, the court allowed the application as prayed and awarded the Plaintiff costs.

Key legal issues

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01

Prima facie case

Holding

Plaintiff established a prima facie case with chances of success

Reasoning

The land was registered in the Plaintiff's name in 2017 and later transferred to the 2nd-4th Defendants. There was no evidence that the Plaintiff entered into any sale agreement with the 2nd-4th Defendants or signed transfer documents. The two conflicting sale agreements (Kshs. 6,000,000 vs Kshs. 9,000,000) indicated a forgery, and the transfer to the Plaintiff before full payment supported her version of the price.

p. 3
02

Irreparable injury

Holding

Injunction justified because damages would be inadequate

Reasoning

The suit land had passed to the 2nd-4th Defendants who had already subdivided it, so the Plaintiff could not adequately be compensated by damages if the injunction were withheld.

p. 3

Legal principles established

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  • An applicant for an interlocutory injunction must establish a prima facie case with chances of success, irreparable injury, and that the balance of convenience is in his favour
  • If no prima facie case is established, the other two conditions need no consideration

Court orders

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  1. 1.The Plaintiff's Notice of Motion dated 29th August 2018 allowed as prayed
  2. 2.The Defendants restrained from selling, advertising for sale, making offers, alienating, transferring, disposing or interfering with the suit parcels pending hearing and determination of the suit
  3. 3.Costs of the application to the Plaintiff
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land parcels Konza North/Konza North Block 2 (Malili)

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, "Florence Ndunge Mulwa v Jeremiah Mutavi Simba & 3 others [2019] KEELC 3168 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3168/eng@2019-05-24

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