Elphas Kipchumba Bor v Gilbert Emanuel Kibet [2021] KEELC 2899 (KLR)
The bottom line
#An Eldoret court blocked a landowner from selling or interfering with land a buyer had fully paid for 14 years ago, pending the main case.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant established a prima facie case warranting a temporary injunction
Yes - production of the sale agreement, green card, official search and evidence of full payment and possession established a triable case with a probability of success.
The court applied the Giella v Cassman Brown threshold. The applicant demonstrated a written sale agreement dated 24th July 2006, full payment of the purchase price of Kshs. 360,000, and took possession. He produced a green card, official search and sale agreement evidencing ownership of the suit land. The court found this constituted prima facie evidence of a triable case with probability of success and that the applicant apprehended harm from the respondent's threatened interference.
Whether the applicant's alleged breach of the sale agreement disentitled him from an injunction
No - the court found the applicant had paid the full purchase price and took possession, so the respondent's argument that the applicant frustrated completion did not defeat the application.
The respondent contended, relying on Kenya Breweries Ltd v Okeyo as approved in John Edward Ouko v National Industrial Credit Bank Ltd, that a contracting party in breach cannot obtain an injunction. The court nevertheless found on the evidence that the applicant had paid the full purchase price and taken possession, and had documentation showing ownership. On that footing the prima facie case threshold was satisfied and the injunction was warranted to preserve the substratum of the suit.
Legal principles established
#- A party seeking a temporary injunction must establish a prima facie case with a probability of success and likelihood of substantial loss; if in doubt, the court decides on a balance of convenience (Giella v Cassman Brown).
- A temporary injunction is issued to preserve the property in dispute and the rights of the parties pending the disposal of the suit.
- A contracting party who fails to perform his obligations cannot obtain an injunction to restrain breach by the other party (as urged by the respondent).
Court orders
#- 1.Temporary injunction restraining the Defendant/Respondent, his servants, agents or any other person acting on his behalf from entering into, leasing out, selling, constructing, demarcating, developing or otherwise dealing with or interfering with the parcel NANDI/KIPKAREN/SALIENT/559 pending the hearing and determination of the suit
- 2.The parties were encouraged to settle or refer the dispute to Court Annexed Mediation
- Jurisdiction invoked
- Not stated in the judgment; the court determines an interlocutory application for temporary injunction in an original suit
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Elphas Kipchumba Bor v Gilbert Emanuel Kibet [2021] KEELC 2899 (KLR)", Case Analysis (2021). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2899/eng@2021-06-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.