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ELCDismissedNot stated in the judgment (plaint dated 31st July, 2017)· [2020] KEELC 3333 (KLR)

Eliud Karanja Wanyoike v Hillary Tanui alias christopher tanui & another [2020] KEELC 3333 (KLR)

Environment and Land Court
6 February 2020
1,813 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A land buyer lost his case because he sued the wrong people and never sued the man he actually paid for the land.

What this practically means

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Executive summary

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By a plaint dated 31st July 2017, the plaintiff sued the two defendants jointly and severally seeking a temporary injunction restraining them from interfering with or adversely dealing with Plot No. 24/503 Kipkenyo, and the lifting of a caution lodged by the 2nd defendant. The plaintiff testified that he entered a sale agreement with Joseph Kiprotich for 1/8 of an acre for Kshs 90,000, paid partly in cash and partly through a cow valued at Kshs 20,000, and alleged that Joseph Kiprotich was acting as agent of the 1st defendant. Joseph Kiprotich (PW2) confirmed the sale, while PW3, the caretaker, reported the encroachment. The defendants denied selling to the plaintiff; the 2nd defendant testified she had been in occupation since 2010 of the resultant parcel Eldoret Municipality Block 24 (Kipkenyo) 880. In submissions, the plaintiff's counsel argued the claim was proved on a balance of probability, while the defendants contended the plaintiff failed to prove payment to the 1st defendant and had not enjoined the person he transacted with. The court framed the issue as whether the plaintiff proved his case and was entitled to the reliefs. It restated Order 40 of the Civil Procedure Rules 2010 on temporary injunctions, noting they are interlocutory preservation measures that lapse after 12 months and cannot be granted as final prayers. It found the alleged agency was neither pleaded nor proved, that the plaintiff chose not to sue Joseph Kiprotich, and that parties are bound by their pleadings. The court dismissed the suit with costs to the defendants.

Key legal issues

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01

Whether the plaintiff proved his claim on a balance of probability so as to be entitled to a temporary injunction and lifting of the caution

Holding

The plaintiff did not prove his claim; the suit was dismissed with costs to the defendants

Reasoning

The court held that the plaintiff's claim that he bought the land from Joseph Kiprotich as agent of the 1st defendant rested on agency neither pleaded nor proved. The plaintiff elected not to sue Joseph Kiprotich, the very person with whom he transacted. Since the plaintiff failed to discharge the burden of proof on a balance of probability, the temporary injunction and lifting of caution could not issue.

p. 3
02

Effect of non-joinder of the party with whom the plaintiff transacted

Holding

Non-joinder of Joseph Kiprotich, whom the plaintiff called as a witness, was fatal to the claim

Reasoning

The plaintiff's own evidence was that he entered the sale agreement with Joseph Kiprotich and paid him Kshs 90,000. The alleged agency of Kiprotich for the 1st defendant was neither pleaded nor proved. The court emphasised that parties are bound by their pleadings and that the plaintiff's choice not to enjoin the person he transacted with undermined the claim against the defendants.

p. 3
03

Nature and duration of a temporary injunction under Order 40 of the Civil Procedure Rules

Holding

A temporary injunction is an interlocutory preservation measure with an expiry date and cannot be granted as a final prayer

Reasoning

The court set out Order 40(1)(a) and (b) of the Civil Procedure Rules 2010 and observed that a temporary injunction only preserves property in dispute until rights are established. Order 40 rule 6 provides that an injunction lapses after 12 months unless the court orders otherwise. The plaintiff's prayers, being interlocutory, could not serve as final relief in a fully heard suit.

p. 3

Legal principles established

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  • A temporary injunction preserves property in dispute until legal rights and conflicting claims are established and cannot be granted as a final prayer
  • Parties are bound by their pleadings, and unpleaded agency cannot sustain a claim

Court orders

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  1. 1.The plaintiff's suit is dismissed with costs to the defendants

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 40(1)(a) and (b)
  • Civil Procedure Rules, 2010Order 40 rule 6
Jurisdiction invoked
Not stated in the judgment; suit instituted by plaint seeking interlocutory injunctive relief under Order 40 of the 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, "Eliud Karanja Wanyoike v Hillary Tanui alias christopher tanui & another [2020] KEELC 3333 (KLR)", Case Analysis (2020). Not stated in the judgment (plaint dated 31st July, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3333/eng@2020-02-06

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