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ELCDismissedNotice of Motion dated 10th December 2019 (Nakuru ELC suit, suit property Njoro/Ngata Block 1/5749)· [2020] KEELC 2789 (KLR)

Winny Santiyon Sauroki v Isaac Towett & another [2020] KEELC 2789 (KLR)

Environment and Land Court
7 May 2020
DOD. O. Ohungo
1,483 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 refused to block a land buyer because the sale contract itself made any loss easy to calculate in money.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of Njoro/Ngata Block 1/5749, moved the court by Notice of Motion dated 10th December 2019 seeking interlocutory injunctions restraining the 1st defendant from entering upon, alienating, subdividing, selling, transferring, charging or constructing further on the suit property, from evicting her or interfering with its ownership, and orders concerning collection of rent from the premises, alternatively appointment of a rent-collecting agent. She deposed that she sold the property to the 1st defendant for KShs 22,000,000 under a sale agreement dated 9th July 2018; only KShs 15,430,000 was paid, leaving KShs 6,570,000 unpaid, yet the defendant took possession, collected rent of KShs 240,000 monthly, and transferred the property to himself using completion documents she had signed. The 1st defendant countered that he paid the full price, overpaying by KShs 715,000, and took possession and transferred the property in accordance with the agreement. The 2nd defendant did not participate. Applying Giella v Cassman Brown as sequenced in Nguruman Limited v Jan Bonde Nielsen, the court found a prima facie case since the vendor was entitled to question her exposure while payment remained disputed. However, the agreement expressly permitted the purchaser to take possession and collect rent, and contained a 10% default clause, so any injury was measurable in damages. The second Giella limb failed and the motion was dismissed with costs to the 1st defendant.

Key legal issues

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01

Prima facie case

Holding

The applicant, as vendor disputing payment and transfer, established a prima facie case

Reasoning

It was not disputed the applicant was the registered proprietor and sold the property for KShs 22,000,000, that the 1st defendant took possession and is now registered proprietor. The extent of payments was a matter for trial. As vendor, the applicant was entitled to raise questions as to whether she would suffer irreparable damage if the purchaser freely dealt with the property notwithstanding the payment dispute.

p. 2
02

Adequacy of damages

Holding

Damages would be adequate; the second and third Giella limbs failed and no injunction could issue

Reasoning

The applicant conceded almost three quarters of the purchase price was paid. Clause 3 of the sale agreement expressly allowed the 1st defendant to take possession and collect rent immediately upon execution and payment of deposit, and a 10% default clause provided an inbuilt damages mechanism. Injury was therefore quantifiable from the balance of purchase price and rent, so the injunction could not issue.

p. 2

Legal principles established

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  • The Giella test conditions for an interlocutory injunction are to be applied as separate, distinct and sequential hurdles; if a prima facie case is not established, irreparable injury and balance of convenience need no consideration
  • Where a sale agreement expressly allows the purchaser to take possession and collect rent, and contains a default clause, any injury to the vendor is measurable in damages

Court orders

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  1. 1.Notice of Motion dated 10th December 2019 dismissed
  2. 2.Costs of the application awarded to the 1st defendant
  3. 3.Parties directed to expedite the hearing of the main suit

Authorities

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Cases cited (2)

  • Giella –vs- Cassman Brown & Co. Ltd
    [1973] E.A 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes (interlocutory injunction application)

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, "Winny Santiyon Sauroki v Isaac Towett & another [2020] KEELC 2789 (KLR)", Case Analysis (2020). Notice of Motion dated 10th December 2019 (Nakuru ELC suit, suit property Njoro/Ngata Block 1/5749). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2789/eng@2020-05-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.