Kenneth Kinoti Muriuki & 4 others v Dinara Developers Limited & Aanother [2020] KEELC 2027 (KLR)
The bottom line
#A Kenyan court blocked a developer from selling five townhouses bought off-plan, confirming buyers can protect their units with an injunction.
What this practically means
#Executive summary
#Key legal issues
#Whether jurisdiction could be raised at submissions stage when not pleaded
The jurisdictional objection failed because it was raised only in submissions and not pleaded; parties are bound by their pleadings.
The Defendants argued that the sale agreements contained arbitration clauses ousting the Court's jurisdiction. The Court held that submissions only support pleadings and cannot introduce unpleaded issues, as the other party would be denied an opportunity to respond. Relying on Arap Moi v Mwangi Stephen Murithi and Joseph Mbutu Nziu v Kenya Orient Insurance, the Court found the issue was not pleaded and could not be entertained at that stage.
Whether the Plaintiffs established a prima facie case with probability of success
All five Plaintiffs established a prima facie case; the 2nd Defendant acknowledged the sale contracts, including with the 3rd and 4th Plaintiffs, and no evidence of rescission was tendered.
The 2nd Defendant acknowledged the 1st, 2nd and 5th Plaintiffs' interests. As to the 3rd and 4th, although the Defendant alleged non-payment and rescission, no Defence or documents showing rescission were filed. Disputed facts can only be determined at trial; on the Airland Tours principle the Court makes no conclusive findings at interlocutory stage. The claim therefore called for rebuttal, establishing a prima facie case.
Irreparable injury not compensable by damages
Land is unique; damages cannot compensate an infringement of the Plaintiffs' crystallized rights over the purchased units.
The Plaintiffs bought the properties off-plan and paid substantial sums. Citing Olympic Sports House v School Equipment Centre and Niaz Mohammed Janmohammed, the Court held land is unique and no amount of money can compensate the infringement of the Plaintiffs' rights, satisfying the second Giella limb.
Balance of convenience
The balance of convenience favours maintaining the status quo pending trial, requiring the Respondents to desist from dealings with the suit properties.
The advertisement did not specify which units were being sold, implying all 19 units were on offer, including those bought by the Plaintiffs. Preservation of the units as they existed before the alleged wrongful act was the appropriate course.
Legal principles established
#- Submissions cannot take the place of evidence or pleadings and cannot be used to raise issues not pleaded.
- A prima facie case is a genuine and arguable case showing an apparently infringed right calling for rebuttal.
- Land is unique and its infringement may not be adequately compensated by damages.
- The purpose of an injunction is to preserve the status quo existing before the wrongful act.
Court orders
#- 1.Temporary injunction granted restraining the Defendants/Respondents from dealing with or transacting on the suit properties, specifically Unit No. 10 (1st Plaintiff), Unit B4 (2nd Plaintiff), Unit A4 (3rd Plaintiff), Unit B8 (4th Plaintiff) and Unit A9 (5th Plaintiff), until hearing and determination of ELC No. 144 of 2019
- 2.Application allowed entirely with costs
- Jurisdiction invoked
- Article 162(2)(b) Constitution / Environment and Land Court Act (ELC jurisdiction); interlocutory relief under Order 40(1)(a) and (b) Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenneth Kinoti Muriuki & 4 others v Dinara Developers Limited & Aanother [2020] KEELC 2027 (KLR)", Case Analysis (2020). ELC Number 144 of 2019 (referred to in the application; exact number of this suit not printed in the excerpt). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2027/eng@2020-06-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.