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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the suit is res judicata given the prior proceedings in Nairobi ELC 544 of 2009 and Nairobi Civil Appeal 218 of 2017
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.
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.
Whether the Plaintiff established a prima facie case with a probability of success
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.
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.
Whether the Applicant would suffer irreparable loss not compensable by damages
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.
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.
Balance of convenience
If required, the balance of convenience tilts towards maintaining the status quo prevailing before the Defendants' alleged unlawful dealings with the property.
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.
Legal principles established
#- 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
#- 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.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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.