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ELCAllowedNotice of Motion dated 17th March 2020 (suit property KILIFI/MADETENI/390)· [2022] KEELC 1317 (KLR)

Ambiance Holdings Limited v Jacob Kenga Iha & 3 others [2022] KEELC 1317 (KLR)

Environment and Land Court
15 February 2022
1,102 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land buyer who paid in full but found a second title issued to someone else won a court order freezing the property until the dispute is resolved.

What this practically means

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Executive summary

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The Plaintiff/Applicant company moved the Court by Notice of Motion dated 17th March 2020 seeking temporary injunctions restraining the 1st Respondent from accessing, selling, constructing on or disposing of the suit property, and restraining the 3rd Respondent from registering any transfer or instrument over it, pending hearing and determination of the application and the suit. Through its director Khalid Gulmuh'd Khamis Shapi, the Plaintiff deponed that Jaideep Singh Vohra purchased the suit property from the 2nd Defendant, the then registered proprietor, under an agreement dated 22nd December 2009 for Kshs. 12,500,000/-, paid in full, with the property transferred to the Plaintiff as his nominee. The Applicant feared alienation after discovering at the Land Registry a second discharge of charge from the Settlement Fund Trustee dated 19th September 2016 and a second title issued in the 1st Defendant's name dated 18th April 2018, and alleged the Defendant was a man of straw. The 1st Defendant opposed, contending the sale agreement was unlawful and void for want of capacity, and that the Giella threshold was unmet. The court set out the classic prima facie case, irreparable harm and balance of convenience test, applied Robert Mugo Wa Karanja v Ecobank, Exclusive Estates Ltd and Pius Kipchirchir Kogo v Tenai, held that a temporary injunction preserves the substratum of the suit, found a prima facie case warranting preservation of the land and irreparable harm established, and allowed the application. Ruling delivered at Malindi on 15th February 2022 by M.A. Odeny J.

Key legal issues

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01

Prima facie case

Holding

The Applicant established a prima facie case: having purchased the suit property and discovered a second discharge of charge and a second title procured in the 1st Defendant's name, preservation of the land is warranted

Reasoning

The Applicant deponed, through its director, that Jaideep Singh Vohra purchased the suit property from the 2nd Defendant for Kshs. 12,500,000/-, paid in full, and transferred to the Plaintiff as nominee. On attending the Land Registry the Applicant found a second discharge of charge from Settlement Fund Trustee and a second title issued to the 1st Defendant, evidencing danger of alienation and supporting a prima facie case warranting preservation of the suit land.

p. 2
02

Irreparable harm

Holding

The Plaintiff established that it will suffer irreparable harm not compensable in damages if the injunction is not granted

Reasoning

The court adopted the definition of irreparable harm as injury that cannot be adequately compensated in damages, noting that a prima facie case alone is insufficient and that the Applicant must show no other remedy is available. The risk of the property being sold or transferred to third parties, with the Defendant alleged to be a man of straw, satisfied this limb.

p. 2

Legal principles established

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  • A temporary injunction preserves the substratum and subject matter of the suit pending hearing and determination
  • Under Order 40 rule 1, a temporary injunction lies where property in dispute is in danger of being wasted, damaged or alienated or wrongfully sold

Court orders

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  1. 1.Temporary orders of injunction restraining the 1st Respondent, his agents and/or assignees from accessing, selling, constructing on, disposing of and/or creating any interest over the property pending the hearing and determination of the suit
  2. 2.Temporary orders of injunction restraining the 3rd Respondent, his agents and/or assignees from registering any transfer or instrument creating any interest over the property pending the hearing and determination of the application and the suit
  3. 3.The Application for injunction is allowed

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 40 rule 1(a) and (b)
  • Civil Procedure Rules, 2010Order 21 [1]

Cases cited (4)

  • GIELLA VS. CASMAN BROWN & CO., LTD.
    [1973] E.A. 358
  • Robert Mugo Wa Karanja v Ecobank (Kenya) Limited & Another
    [2019] eKLR
  • Exclusive Estates Ltd Vs Kenya Posts & Telecommunications Corporation & Another
    Civil Appeal No. 62 of 2004
  • Pius Kipchirchir Kogo versus Frank Kimeli Tenai
    (2018) eKLR
Jurisdiction invoked
Order 40 of the Civil Procedure Rules, 2010 (temporary injunctions) in an original first-instance 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, "Ambiance Holdings Limited v Jacob Kenga Iha & 3 others [2022] KEELC 1317 (KLR)", Case Analysis (2022). Notice of Motion dated 17th March 2020 (suit property KILIFI/MADETENI/390). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1317/eng@2022-02-15

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