Vimit Converters Limited v Aima Enterprises Limited [2020] KEELC 1300 (KLR)
The bottom line
#The Kajiado Environment and Land Court barred a former landowner from interfering with property it had lost through a bank sale, protecting the new owner's rights.
What this practically means
#Executive summary
#Key legal issues
#Prima facie case with probability of success
The Plaintiff, as current registered proprietor following the bank's exercise of statutory power of sale, established a prima facie case; the Defendant's distress of the Plaintiff's tenant over land it no longer owned infringed the Plaintiff's rights
The court noted the Defendant did not deny charging the suit land to ABC Bank, and that the land was registered in the Plaintiff's name in February 2019 with the Plaintiff taking occupation and leasing to a tenant. The Defendant nonetheless distressed the Plaintiff's tenant for rent although the land had ceased to belong to it. The Plaint raised triable issues, and on the facts and authorities the Plaintiff demonstrated a prima facie case with probability of success.
Irreparable harm not compensable by damages
The Plaintiff's alleged injuries were actual, not speculative, given the Defendant's interference with land and distress against the Plaintiff's tenant despite knowing it was no longer the registered proprietor
Applying Nguruman Ltd v Jan Bonde Nielsen, the court held the Plaintiff bore the burden of demonstrating actual, substantial and demonstrable injury incapable of adequate compensation in damages. The Plaintiff had taken occupation, and the Defendant interfered with the land and distressed the Plaintiff's tenant knowing it was not the registered proprietor; therefore the harm was not speculative and the threshold was met.
Balance of convenience
The balance of convenience tilts in favour of the Plaintiff
On the evidence presented by the parties, the court found the balance of convenience favoured the Plaintiff, who had demonstrated how it acquired the suit land and how the Defendant had trespassed thereon, while the Defendant's remedy, if any, lay in a claim against the bank over the exercise of the statutory power of sale.
Legal principles established
#- A party dissatisfied with the manner in which a chargee exercises its statutory power of sale should pursue the chargee, not interfere with the title of a bona fide purchaser from the sale
- The Giella v Cassman Brown principles govern the grant of temporary injunctions: prima facie case, irreparable harm not compensable by damages, and balance of convenience
Court orders
#- 1.Temporary injunction granted against the Defendant in respect of land parcel Kajiado/Kaputiei North/14774 pending the hearing and determination of the suit
- 2.Order that the OCPD Kajiado/OCS Isinya Police Station provide security to the Plaintiff's representative and/or directors to access the property and exercise their right of enjoyment
- 3.Costs of the application awarded to the Plaintiff
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Order 40 Rule 1 and Order 51 Rules 1 & 3 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Vimit Converters Limited v Aima Enterprises Limited [2020] KEELC 1300 (KLR)", Case Analysis (2020). ELC Case (Notice of Motion dated 15th August 2019, Kajiado). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1300/eng@2020-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.