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ELCAllowedELC Number 144 of 2019 (referred to in the application; exact number of this suit not printed in the excerpt)· [2020] KEELC 2027 (KLR)

Kenneth Kinoti Muriuki & 4 others v Dinara Developers Limited & Aanother [2020] KEELC 2027 (KLR)

Environment and Land Court
11 June 2020
2,616 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is an interlocutory ruling of the Environment and Land Court at Thika (L. Gacheru J) on the Plaintiffs' Notice of Motion dated 21st April 2020 seeking a temporary injunction restraining the Defendants from transacting on the suit properties pending hearing and determination of the main suit, in which the Plaintiffs claim specific performance over town houses/maisonettes bought off-plan. The Plaintiffs complained that the Defendants, who had filed no Defence, advertised the property for sale for Kshs.14,000,000 in disregard of the pending suit. The 2nd Defendant opposed, asserting that only three of nineteen houses were purchased by the Plaintiffs, that the 3rd and 4th Plaintiffs defaulted and their houses were lawfully repossessed, and that the remaining sixteen unsold units belonged to the Defendants. The Defendants also contended in submissions that the sale agreements contained arbitration clauses, ousting the Court's jurisdiction. The Court framed two issues: jurisdiction and the Giella v Cassman Brown thresholds. On jurisdiction, it held the objection was unpleaded and could not be raised through submissions, applying Arap Moi v Mwangi Stephen Murithi and Joseph Mbuta Nziu v Kenya Orient Insurance. On the injunction, the Court found all five Plaintiffs had established a prima facie case with probability of success, since the 2nd Defendant acknowledged the sale contracts and produced no evidence of rescission; that land is unique and damages inadequate; and that the balance of convenience favoured preserving the status quo. The application was allowed entirely with costs, with injunctions issued in respect of Units 10, B4, A4, B8 and A9, each corresponding to a Plaintiff's purchase.

Key legal issues

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01

Whether jurisdiction could be raised at submissions stage when not pleaded

Holding

The jurisdictional objection failed because it was raised only in submissions and not pleaded; parties are bound by their pleadings.

Reasoning

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.

p. 2
02

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

Holding

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.

Reasoning

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.

p. 3
03

Irreparable injury not compensable by damages

Holding

Land is unique; damages cannot compensate an infringement of the Plaintiffs' crystallized rights over the purchased units.

Reasoning

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.

p. 3
04

Balance of convenience

Holding

The balance of convenience favours maintaining the status quo pending trial, requiring the Respondents to desist from dealings with the suit properties.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 2.Application allowed entirely with costs

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 40(1)(a) and (b)
  • Civil Procedure Rules 2010Order 21 rule 1

Cases cited (11)

  • Daniel Toroitich Arap Moi & Another vs Mwangi Stephen Murithi & Another
    (2014) eKLR
  • Joseph Mbuta Nziu vs Kenya Orient Insurance Company Ltd
    [2015] eKLR
  • Adetoun Oladeji (Nig) Ltd vs Nigeria Breweries Plc
    S.C. 91/2002
  • Giella vs Cassman Brown & Co. Ltd
    1973 EA 358
  • Kibutiri vs Kenya Shell
    Nairobi High Court Civil Case No.3398 of 1980 (1981) KLR
  • E.A Industries vs Trufoods
    (1972) EA 420
  • Mrao Ltd vs First American Bank of Kenya
  • Airland Tours and Travel Ltd vs National Industrial Credit Bank
    Milimani HCCC No.1234 of 2003
  • Olympic Sports House Ltd vs School Equipment Centre Ltd
    (2012) eKLR
  • Niaz Mohammed Janmohammed vs Commissioner for Lands & 4 Others
    (1996) eKLR
  • Agnes Adhiambo Ojwang vs Wycliffe Odhiambo Ojijo
    Kisumu HCCC No.205 of 2000
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

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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, "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.