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ELCPartially AllowedNotice of Motion dated 5th August 2020 (within suit filed by Plaint dated 14th December 2016)· [2021] KEELC 3385 (KLR)

Samuel Njiraini Ngabia v Andrew Kigathi Wachiuri & another;Stanley Paul Mbugua Githongo (Interested Party) [2021] KEELC 3385 (KLR)

Environment and Land Court
6 May 2021
1,827 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 Kenyan land buyer who paid in full and developed the property won a court order stopping the seller from selling, harassing, or interfering with his possession.

What this practically means

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Executive summary

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By a Notice of Motion dated 5th August 2020 brought under Order 40 Rules 1, 3 and 4, Order 5 rule 17 and Order 51 of the Civil Procedure Rules and Sections 3A and 63(c) and (e) of the Civil Procedure Act, the 1st Defendant/Applicant, Andrew Kigathi Wachiuri, sought a temporary injunction restraining the Plaintiff/Respondent from harassing, threatening, selling, alienating, wasting or interfering with his occupation, possession and use of LR No. 13537/233 (approximately 0.61 hectares out of LR No. 13537/99 near Thika), plus an order for OCS supervision of enforcement and costs. He averred that he bought the portion from the Plaintiff at full purchase price, took possession, built structures and rented rooms out; that the Plaintiff's advocates by letter dated 10th July 2020 demanded rent arrears from his tenants; and that the Plaintiff was engaging brokers to sell the property. The Interested Party, an adjacent purchaser of LR 13537/232, supported these averments. The Plaintiff did not respond despite service. Applying the Giella v Cassman Brown principles, the Court (L. Gacheru J) found a prima facie case with probability of success, noting the Plaintiff's own Plaint admitted sale upon full payment of the purchase price, and that allegations of attempted sale and rent collection from the Applicant's tenants were uncontroverted. Irreparable harm was found since land already developed cannot be adequately compensated by damages. The balance of convenience favoured maintaining the status quo. The application was allowed entirely in terms of prayers 3 and 5, with costs to the Applicant. Judgment delivered virtually at Thika on 6th May 2021.

Key legal issues

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01

Whether the 1st Defendant/Applicant established a prima facie case with probability of success

Holding

Yes - he bought the portion from the Plaintiff, the claim is supported by the Interested Party and by the Plaintiff's own averment in the Plaint that the full purchase price was paid, and allegations of attempted sale and interference with tenants were uncontroverted

Reasoning

The Applicant averred he purchased LR 13537/233 from the Plaintiff, took possession and developed it. The Interested Party confirmed the sale. The Plaintiff's own Plaint admitted he disposed of one and a half acres to the Applicant upon full payment of purchase price. Allegations that the Plaintiff was attempting to sell the property and demanding rent from the Applicant's tenants were not rebutted, the Plaintiff having not responded to the application.

p. 2
02

Whether the Applicant would suffer irreparable harm not compensable by damages

Holding

Yes - the suit property is land on which the Applicant has developed, and no amount of money can adequately compensate infringement of his right to quiet use and possession

Reasoning

Relying on Olympic Sports House Ltd v School Equipment Centre Ltd, the Court held that a party cannot be condemned to take damages in lieu of a crystallised right protectable by injunction. Since the dispute concerns a parcel of land already developed by the Applicant, any infringement of his possessory rights could not be adequately compensated by an award of damages.

p. 3
03

Where the balance of convenience lies

Holding

Though the Court was not in doubt, if deciding on balance of convenience it would tilt in favour of maintaining the status quo, i.e. the Plaintiff desisting from any dealings on the suit properties until the suit is determined

Reasoning

Following Agnes Adhiambo Ojwang v Wycliffe Odhiambo Ojijo, the purpose of an injunction is to preserve the status quo existing before the wrongful act. Maintaining the Applicant's possession and restraining the Plaintiff from dealings on the property preserves the position that existed prior to the alleged acts of interference and threatened sale.

p. 3

Legal principles established

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  • To justify a temporary injunction there must be evidence of immediate danger to property or sale or other disposition
  • A party cannot be condemned to take damages in lieu of a crystallised right protectable by injunction; uncontroverted allegations of attempted alienation and interference with possession support an interlocutory injunction over land
  • The status quo to be preserved by injunction is the one that existed before the wrongful act

Court orders

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  1. 1.Temporary injunction restraining the Plaintiff/Respondent, his employees, servants, agents or any persons purporting to act on his behalf from harassing, threatening, selling, alienating, dealing, disposing, transferring, wasting or interfering with the 1st Defendant/Applicant's occupation, possession and use of LR No. 13537/233 (approx. 0.61 hectares out of LR No. 13537/99, South West of Thika Municipality) pending the hearing inter partes and final determination of the suit
  2. 2.Direction to the OCS to supervise the enforcement of the orders issued
  3. 3.Costs of the application to the Applicant

Authorities

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Legislation

  • Civil Procedure RulesOrder 5 rule 17
  • Civil Procedure RulesOrder 40 Rules 1, 3 and 4
  • Civil Procedure RulesOrder 51 Rules 1, 3 and 4
  • Civil Procedure RulesOrder 21 rule 1
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 63(c) and (e)

Cases cited (7)

  • Noormohammed Jan Mohammed v Kassam Ali Virji
    (1953) 20 LRK 8
  • Giella v Cassman Brown Co Ltd
    (1973) EA 358
  • Kibutiri v Kenya Shell
    Nairobi High Court Civil Case No. 3398 of 1980 (1981) KLR
  • E.A Industries v Trufoods
    (1972) EA 420
  • Mrao Ltd v First American Bank of Kenya Ltd & Others
    (2003) KLR
  • Olympic Sports House Ltd v School Equipment Centre Ltd
    (2012) eKLR
  • Agnes Adhiambo Ojwang v Wycliffe Odhiambo Ojijo
    Kisumu HCCC No. 205 of 2000
Jurisdiction invoked
Order 5 rule 17, Order 40 Rules 1, 3, 4, Order 51 rules 1, 3 and 4 of the Civil Procedure Rules; Sections 3A and 63(c) and (e) of the Civil Procedure Act

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, "Samuel Njiraini Ngabia v Andrew Kigathi Wachiuri & another;Stanley Paul Mbugua Githongo (Interested Party) [2021] KEELC 3385 (KLR)", Case Analysis (2021). Notice of Motion dated 5th August 2020 (within suit filed by Plaint dated 14th December 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3385/eng@2021-05-06

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