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ELCAllowed· [2020] KEELC 993 (KLR)

Lucy Wanjiku Muchai t/a Bellavin Investments v Winnie Mukolwe (Sued as the Administrator of the Estate of David Nyambu Jonathan Kituri (Deceased) & 12 others [2020] KEELC 993 (KLR)

Environment and Land Court
15 October 2020
3,890 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan land buyer who paid Kshs 5 million won a court order stopping the sellers from disposing of the property until her case is fully heard.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Thika (L. Gacheru J) on a Notice of Motion dated 18th November 2019 by the Plaintiff, Lucy Wanjiku Muchai, seeking a temporary injunction restraining the Defendants from selling, transferring, charging, alienating or dealing with L.R No. 10090/24 pending trial, plus costs. The Plaintiff bought the property under agreements of 14th February 2008 and 2nd April 2008, paying Kshs. 5,000,000/-. Third-party adverse possession litigation (ELC 544 of 2009, appealed in Civil Appeal 218 of 2017) failed, after which the Plaintiff sought to complete the sale, but the Defendants ignored her and allegedly moved to sell to others; they contended the suit was res judicata, that the agreements were void for lack of Land Control Board consent and non-execution by all beneficiaries, and that no injunction lies against a titleholder. The court framed two issues: res judicata and entitlement to the injunction. Applying Section 7 of the Civil Procedure Act and IEBC v Maina Kiai, it held the suit was not res judicata: the subject matter was the same but the orders sought (specific performance and extension of time for Land Control Board consent) were not decided in ELC 544 of 2009, and the Defendants never disputed the sale agreement, so the Plaintiff could not be faulted for not asserting what was never in contention. Applying Giella v Cassman Brown, the court found a prima facie case from the undisputed existence of the sale agreements, irreparable loss not compensable in damages given the threatened sale, and balance of convenience favouring the status quo. The application was allowed entirely, restraining dealings with the suit property pending trial, with costs to the Plaintiff.

Key legal issues

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01

Whether the suit is res judicata given the prior proceedings in Nairobi ELC 544 of 2009 and Nairobi Civil Appeal 218 of 2017

Holding

The suit is not res judicata. Although the subject matter (the suit property) is the same, the orders sought here (specific performance and extension of time for Land Control Board consent) were neither sought nor decided in ELC 544 of 2009, which was an adverse possession claim by third parties. The Defendants never disputed the sale agreement, so the Plaintiff cannot be faulted for not litigating specific performance then.

Reasoning

Applying Section 7 of the Civil Procedure Act and the conjunctive elements in IEBC v Maina Kiai, the court noted the former suit concerned adverse possession claims by third parties, not the purchaser's contract claim. The doctrine as explained in Henderson v Henderson (via Gurbachan v Yowani Ekori) requires matters that properly belonged to the subject of litigation, but where the vendor Defendants affirmed the sale throughout the trial, there was no issue in contention requiring assertion. Res judicata therefore fails.

p. 4
02

Whether the Plaintiff established a prima facie case with a probability of success

Holding

Yes. The existence of the two sale agreements is not disputed; the Applicant thereby has an interest in the suit property whose validity is a matter for trial.

Reasoning

Applying the Giella v Cassman Brown principles and Mrao Ltd v First American Bank's definition of a prima facie case, the court held that since the Defendants have not disputed the existence of the sale agreements, the Applicant has an apparent right over the property. Whether that interest is merited or sustainable requires probing of evidence at trial, which the interlocutory court cannot undertake.

p. 4
03

Whether the Applicant would suffer irreparable loss not compensable by damages

Holding

Yes. The Applicant has pursued her purchaser's interest since 2009; if the property were sold to third parties her interest would be lost and no damages could compensate.

Reasoning

Relying on Niaz Mohammed Janmohammed and Olympic Sports House, the court found that infringement of the Applicant's crystallized interest in land cannot be atoned by damages, and there is evidence of immediate danger of sale or disposition to third parties, entitling her to injunctive protection.

p. 5
04

Balance of convenience

Holding

If required, the balance of convenience tilts towards maintaining the status quo prevailing before the Defendants' alleged unlawful dealings with the property.

Reasoning

The court invoked Agnes Adhiambo Ojwang v Wycliffe Odhiambo Ojijo for the proposition that the purpose of an injunction is to preserve the status quo existing before the wrongful act, and directed that the Defendants desist from dealings prejudicing the Applicant's interests until the suit is heard and determined.

p. 5

Legal principles established

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  • Res judicata does not arise where, although the subject matter is the same, the orders and issues sought in the subsequent suit were never in contention or decided in the former suit.
  • A party cannot be expected to litigate an issue that the opposing party never disputed; the requirement to bring forward the whole case does not extend to matters never in contention.
  • On an interlocutory application the court makes no conclusive findings of fact or law on disputed matters.
  • Where the court is in doubt, the balance of convenience tilts towards preserving the status quo existing before the alleged wrongful act.

Court orders

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  1. 1.Temporary injunction restraining the Defendants/Respondents, their servants, agents or any person claiming through them, from selling, transferring, charging, alienating, gifting, disposing, subdividing, developing or dealing with the suit property known as L.R No. 10090/24 in any manner whatsoever pending the hearing and determination of the instant suit
  2. 2.Costs of the application to the Plaintiff/Applicant
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the suit property L.R No. 10090/24; interim relief under 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, "Lucy Wanjiku Muchai t/a Bellavin Investments v Winnie Mukolwe (Sued as the Administrator of the Estate of David Nyambu Jonathan Kituri (Deceased) & 12 others [2020] KEELC 993 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/993/eng@2020-10-15

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