Kobilo Farm Limited & another v Elfam Limited & another [2020] KEELC 1133 (KLR)
The bottom line
#A Kenyan court declined to stop a land sale or jail anyone for contempt because an incomplete buyer hadn't proven its case, showing courts won't rewrite property contracts.
What this practically means
#Executive summary
#Key legal issues
#Prima facie case for temporary injunction
The plaintiff failed to establish a prima facie case; the contract was not fully performed and the court cannot rewrite it
It was not disputed that the parties entered three sale agreements and that the plaintiff had not completed payment for parcel 13/4. The completion date was varied by consent to 9th July 2019 and the plaintiff only completed payment for parcel 13/9. Injunction being an equitable remedy requires clean hands; the parties are bound by their contract and the court cannot rewrite it in the absence of pleaded and proved coercion, fraud or undue influence.
Irreparable harm
Any harm is quantifiable and compensable by damages
Applying Munyao J's formulation in Simon Kipngetich Bett, the court held the subject matter can be maintained in no worse a state at the conclusion of the suit; the loss is quantifiable. The plaintiff was not shown to be in occupation and had paid part of the price, so the alleged harm is capable of compensation by an award of damages.
Balance of convenience
It tilts in favour of the defendant as registered owner
The suit land remains registered in the defendant's name, the plaintiff has not completed payment, and the defendant is the registered proprietor. The court therefore maintained the status quo as at 11th June 2020 and directed the defendant to deposit the monies paid into a joint interest-earning account to secure both parties' interests.
Contempt by both parties' directors
Neither party proved contempt to the required standard; both applications dismissed
Both contempt applications arose from the status quo order, with each party seeking to steal a march over the other. Contempt is quasi-criminal with a high standard of proof requiring a clear order, knowledge, breach and deliberateness. The status quo order lacked clarity as to what the obtaining position was, and the court could not satisfy itself beyond doubt that either side wilfully breached a clear order.
Legal principles established
#- An applicant for interlocutory injunctive relief must satisfy the Giella v Cassman Brown criteria, and the court may also opt for the course carrying the lower risk of injustice
- A court cannot rewrite contracts between parties
- Knowledge of a court order supersedes personal service in contempt proceedings
- The four elements of civil contempt include a clear and unambiguous order, knowledge of it, breach, and deliberateness
- Where a status quo order is vague, parties should not be left to gamble with its interpretation
Court orders
#- 1.The plaintiff's application dated 10th June 2020 resolved by maintaining the status quo obtaining as at 11th June 2020 to preserve the substratum of the case pending hearing and determination of the suit
- 2.The defendant to deposit in a joint interest-earning account of the advocates on record the amount paid by the plaintiff in respect of the disputed parcel within 30 days
- 3.Parties to comply with Order 11 within 30 days
- 4.Both contempt applications dismissed with costs in the cause
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over land disputes (interlocutory applications in a land suit)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kobilo Farm Limited & another v Elfam Limited & another [2020] KEELC 1133 (KLR)", Case Analysis (2020). ELC Case, Eldoret (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1133/eng@2020-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.