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ELCAllowedNot stated in the judgment as provided· [2021] KEELC 2899 (KLR)

Elphas Kipchumba Bor v Gilbert Emanuel Kibet [2021] KEELC 2899 (KLR)

Environment and Land Court
15 June 2021
901 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court at Eldoret (M. A. Odeny, J) determines a notice of motion dated 3rd December 2020 in which the plaintiff sought a temporary injunction restraining the defendant from entering into, leasing out, selling, constructing, demarcating, developing or otherwise dealing with or interfering with the parcel known as NANDI/KIPKAREN/SALIENT/559 pending the hearing and determination of the suit, plus costs. The applicant case was that he purchased the whole parcel measuring 2.88 Ha for Kshs. 360,000 under a sale agreement dated 24th July 2006, paid the full consideration, and took possession, living on the land for about 14 years; from May 2020 the respondent allegedly trespassed, pulled down fencing, began construction and threatened eviction. The respondent, relying on his replying affidavit, argued the applicant frustrated completion of the sale by defaulting on the contractual agreement, that both parties merely grazed cattle on the land, and that no prima facie case was established, invoking the principle in Kenya Breweries v Okeyo that a party in breach cannot obtain an injunction. The court applied the Giella v Cassman Brown threshold. On the evidence - the sale agreement, green card, official search and proof of full payment and possession - it found a prima facie case with a probability of success and apprehended harm. The application for injunction was allowed. The court also observed the parties could settle or pursue Court Annexed Mediation. No costs order was recorded.

Key legal issues

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01

Whether the applicant established a prima facie case warranting a temporary injunction

Holding

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.

Reasoning

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.

p. 2
02

Whether the applicant's alleged breach of the sale agreement disentitled him from an injunction

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 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. 2.The parties were encouraged to settle or refer the dispute to Court Annexed Mediation

Authorities

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Cases cited (5)

  • Giella v Cassman Brown and Co. Ltd
    (1973) EA 358
  • Giella Casma Brown Case
  • Kenya Breweries Limited & another v Washington O. Okeyo
    [2002] eKLR
  • John Edward Ouko vs National Industrial Credit Bank Ltd
    [2013] Eklr
  • Exclusive Estates Ltd vs Kenya Posts & Telecommunications Corporation & Another
    Civil Appeal No. 62 of 2004
Jurisdiction invoked
Not stated in the judgment; the court determines an interlocutory application for temporary injunction in an original suit

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, "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.