Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissed· [2022] KEELC 1624 (KLR)

Christopher Kagema Gichuhi v Essen Holdings Limited & another [2022] KEELC 1624 (KLR)

Environment and Land Court
3 February 2022
SOS. Okong'o
2,798 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
This is a ruling on the Plaintiff's Notice of Motion dated 27th September 2019 in a suit arising from a sale agreement dated 26th February 2019 under which the Plaintiff sold L.R No. 209/136/104 to the 1st Defendant for Kshs. 82,500,000/-. After receiving a 10% deposit of Kshs. 8,250,000/-, the Plaintiff transferred the property to the 1st Defendant, which charged it to Equity Bank Limited to finance the balance of Kshs. 74,250,000/- under an irrevocable undertaking. The Plaintiff sought a temporary injunction restraining dealings with the title, an order compelling payment of the balance, and leave to collect rents, alleging breach of the sale agreement. The Defendants opposed, contending the balance was payable by the Bank only upon delivery of vacant possession, a condition precedent the Plaintiff had not satisfied as his tenants remained in occupation and continued paying rent to him. The court, applying Giella v Cassman Brown and Nguruman Limited, held the Plaintiff had not established a prima facie case or irreparable injury, since the Bank's undertaking — including its promise to cancel the charge and return the completion documents upon default — already protected his interest and he had not sought to enforce it. The court further held that compelling payment of the purchase price was final relief not grantable interlocutorily, and that no order on rent was necessary as the Plaintiff was already collecting rent; the status quo would stand pending trial. The application was dismissed with costs in the cause.

Key legal issues

#
01

Whether a temporary injunction should issue to restrain dealings with the suit property

Holding

The injunction was refused as the Plaintiff failed to demonstrate a prima facie case, irreparable injury, or any purpose the injunction would serve given the Bank's undertakings

Reasoning

The agreement provided that the balance of Kshs. 74,250,000/- would be financed by Equity Bank secured by an irrevocable undertaking. The Bank undertook to pay within 14 days of registration of the transfer and charge, and failing payment, to cancel the charge and return the completion documents. The Plaintiff did not seek to enforce the undertaking, which was a separate agreement protecting his interest, leaving no basis for an injunction.

p. 3
02

Whether the Defendants could be compelled at an interlocutory stage to pay the balance of the purchase price

Holding

Refused; the order sought is final and cannot be granted interlocutorily

Reasoning

The court agreed with the Defendants that compelling payment of the purchase price would amount to granting final relief in an interlocutory application. Further, the Plaintiff had the benefit of the Bank's irrevocable undertaking for payment and it was unclear why he sought payment from the Defendants instead of enforcing the undertaking.

p. 3
03

Whether the Plaintiff should collect rent from the tenants pending payment of the balance

Holding

No order made; the status quo to be maintained pending trial

Reasoning

Vacant possession had not been given, so the tenants in possession must pay rent to someone; whether to the Plaintiff or the 2nd Defendant is a contentious issue reserved for trial. The Plaintiff was already collecting rent and needed no order.

p. 3

Legal principles established

#
  • An applicant for a temporary injunction must establish a prima facie case with a probability of success, and show irreparable injury not adequately compensable in damages; failing which the balance of convenience applies
  • Final orders (such as compelling payment of the balance of the purchase price) cannot be granted on an interlocutory application
  • A party to whom an irrevocable undertaking for payment has been given should enforce that undertaking rather than sue the other contracting party

Court orders

#
  1. 1.The Notice of Motion application dated 27th September 2019 is dismissed
  2. 2.Costs to be in the cause

Authorities

#

Cases cited (7)

  • Tom Otieno Odongo v Cabinet Secretary Ministry of Labour Social Services & another
    [2013] eKLR
  • Samuel Chege Gitau & another v Joseph Gicheru Muthiora
    [2014] eKLR
  • Deliah Kerubo Otiso v Ramesh Chander Ndingra
    [2018] eKLR
  • Olive Mugenda & Another v Omkiya Omtata Okoiti
    Nairobi Civil Appeal Nos. 3 and 11 of 2016
  • Giella v Cassman Brown & Co. Ltd.
    [1973] E.A 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • Mrao Limited v First American Bank of Kenya Limited & 2 Others
    [2003] KLR 125
Jurisdiction invoked
Original civil jurisdiction over the plaintiff's Notice of Motion application in a pending suit (injunctive relief over land); no specific constitutional or statutory provision invoked

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Christopher Kagema Gichuhi v Essen Holdings Limited & another [2022] KEELC 1624 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1624/eng@2022-02-03

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