Ruth Cherotich Elijah & another v Esther Cherotich Lang’at & 4 others [2020] KEELC 3944 (KLR)
The bottom line
#A Kericho court refused to stop a bank from selling disputed land because the applicants alleged fraud without giving any specific details or offering compensation.
What this practically means
#Executive summary
#Key legal issues
#Prima facie case
Not established - the applicants' fraud allegations lack particulars and the succession papers availed suggest the 1st respondent possibly obtained a valid grant.
The applicants' case rests on fraud but contains no particulars, contrary to Order 10 Rule 2(a) of the Civil Procedure Rules. The 1st respondent produced succession papers bearing the same cause number showing she possibly lawfully obtained a grant and transmitted the land from her late husband. The prayers on nullification of the subdivision were also internally flawed, indicating weak prospects of success.
Irreparable harm
Not established - the land's value is quantifiable and the applicants can be compensated in damages.
The value of the land can be assessed monetarily; the applicants do not live on the land and cannot claim sentimental attachment. Green cards showed the land had been charged to various banks before, showing eligibility for such sale. Damages are therefore an adequate remedy.
Balance of convenience
It tilts in favour of the 5th respondent, which conducted due diligence and was not implicated in the alleged fraud.
No allegation of fraud is directed at the 5th respondent, yet the restraining order targets only that party, which would bear the brunt of consequences for wrongs not committed by it. The 5th respondent conducted due diligence before advancing the loan and risks losing money advanced.
Undertaking in damages
The applicants gave no undertaking to pay damages, which disqualifies them from an injunction.
The applicants came late to interfere with an existing arrangement between other parties without offering compensation if they fail. Following Gati v Barclays Bank, an injunction cannot issue without an undertaking; given the sums involved the court would insist on proof of the applicants' means to pay damages.
Legal principles established
#- An undertaking to pay damages is a criterion for granting an injunction; where none is given, an injunction cannot issue.
- Fraud must be pleaded with particulars and the registered owner must be shown to be complicit to displace the protections of Section 26(1) of the Land Registration Act.
- Prima facie, an injunction is not granted where damages are an adequate remedy.
- Particulars of fraud are a mandatory requirement in pleading fraud.
Court orders
#- 1.The Notice of Motion dated 29th August 2018 is dismissed with costs
- Jurisdiction invoked
- Section 26 of the Land Registration Act; Order 37 Rule 8 and Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ruth Cherotich Elijah & another v Esther Cherotich Lang’at & 4 others [2020] KEELC 3944 (KLR)", Case Analysis (2020). Not stated in judgment (Notice of Motion dated 29th August 2018, arising from a main suit at Kericho). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3944/eng@2020-01-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.