Paul Kinuthia Ruitha v Bernadetta Wambui Wanyoike & another [2020] KEELC 3955 (KLR)
The bottom line
#A land buyer in occupation since 2007 won court protection stopping the seller from dealing with the property until the dispute is fully heard.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff/Applicant established a prima facie case with probability of success
Yes - the sale agreement showed the 1st Defendant was to transfer 5 acres but transferred only 1.75 acres, while the Plaintiff remained in occupation of the whole 5 acres
The court examined the sale agreement, which provided for transfer of 5 acres with a five-year completion date, and noted a letter requiring the Defendant to collect the balance of the purchase price. The Defendant's allegation that the land was needed for road reserves by the County Government was unsupported by evidence. The court held that at the interlocutory stage it need only find a valid, apparently infringed right requiring rebuttal, which the Plaintiff had demonstrated.
Whether the Applicant will suffer irreparable loss not compensable by damages
Yes - the Applicant had been in possession since 2007, had developed and tilled the land, and no amount of money could compensate infringement of that right
Relying on Niaz Mohammed Janmohammed v Commissioner for Lands, the court reasoned that a crystallized right violated cannot be equated to damages. The Applicant had taken possession upon execution of the agreement in 2007 and had lived on, developed and tilled the suit land, so infringement of his rights would cause loss no award of money could adequately compensate.
Where the balance of convenience lies
It tilts in favour of maintaining the status quo existing before the Respondents' allegedly unlawful actions, by directing the Respondents to desist from dealings in the suit property until the suit is determined
The court was not in doubt on the third Giella limb but, if required to decide, held the balance of convenience favoured preserving the status quo that existed before the Respondents' allegedly unlawful actions - i.e. restraining any dealings in the suit property pending hearing and determination of the suit, citing the Agnes Adhiambo Ojwang decision.
Whether special circumstances existed to warrant an interlocutory mandatory injunction (removal of the barbed wire fence, collection of building materials, harvest of crops)
Yes - the Applicant lawfully possessed the land since 2007, planted crops and kept building materials there, and these facts were not controverted
Applying the Kenya Breweries v Okeyo test from Halsbury's Laws, the court found special circumstances: the Applicant obtained possession in 2007 with all rights appertaining to the property, the agreement allowed him 5 acres, and his allegations of developing, tilling and planting crops were uncontroverted by the 1st Defendant. It was therefore fair and just to allow him to collect his building materials and harvest his crops when ready.
Legal principles established
#- A crystallized right over land which is violated cannot be equated to compensation by damages
- Where the balance of convenience is considered, it tilts in favour of maintaining the status quo that existed before the wrongful act
- At the interlocutory stage, the court need only establish whether the applicant has a valid claim and a prima facie case, not go to the merits of the case
- Allegations by a respondent that are not denied or controverted are taken to be the gospel truth
Court orders
#- 1.The Notice of Motion Application dated 5th April 2019 is merited and is allowed entirely in terms of prayers No.3, 5, 6, 8, 9, 11 and 13 of the said Application
- 2.It is so ordered
- Jurisdiction invoked
- Original civil jurisdiction over the suit; interlocutory relief sought under Section 68 of the Land Registration Act No. 3 of 2012 (inhibition order) and the court's inherent power to grant temporary and mandatory injunctions
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Paul Kinuthia Ruitha v Bernadetta Wambui Wanyoike & another [2020] KEELC 3955 (KLR)", Case Analysis (2020). Not stated in the excerpt provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3955/eng@2020-01-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.