Kariuki v Ringsview Apartments Limited & another (Environment & Land Case E140 of 2021) [2022] KEELC 3823 (KLR)
The bottom line
#A Nairobi buyer couldn't stop his apartment being sold because he couldn't prove he paid the full purchase price.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant established a prima facie case with a probability of success
No. The applicant failed to prove payment of the full purchase price and did not disclose why he failed to complete the purchase; his rights over the suit property had not crystallized.
The sale agreement dated October 31, 2013 shows staged payments. The applicant asserted in his supplementary affidavit that the purchase price was paid in full but attached no deposit slips or proof. The 1st defendant's averments that he failed to pay the full purchase price and took possession without authority were unchallenged. The court thus found no prima facie case per the Mrao test.
Whether the applicant demonstrated irreparable harm not compensable by damages
No. The applicant failed to show he would suffer substantial loss incapable of being compensated by an award of damages.
The court found the applicant had not demonstrated substantial loss. It noted instead the 1st defendant's claim of mesne profits from the applicant's occupation, and agreed with the 2nd defendant that the applicant was not privy to the loan/charge arrangement and had not shown irregularity, illegality or fraud in the charge or the exercise of the statutory power of sale.
Where the balance of convenience lies
The balance of convenience tilts in favour of the 2nd defendant/respondent chargee.
Applying Paul Gitonga Wanjau vs Gathuthi Tea Factory, the court weighed the greater harm. The 2nd defendant holds a registered charge and is realising its security; the applicant was not party to the charge arrangements and had not shown the charge was created irregularly, illegally or fraudulently.
Legal principles established
#- In an application for injunction the onus is on the applicant to satisfy the court that it should grant an injunction, on the Giella vs Cassman Brown principles
- An applicant for injunction must make a full and frank disclosure of all relevant facts and show a right, legal or equitable, requiring protection
Court orders
#- 1.The notice of motion dated April 23, 2021 is dismissed
- 2.The costs of the application do abide the outcome of the main suit
- Jurisdiction invoked
- Article 40 of the Constitution of Kenya, 2010; Order 40 Rules 1 and 2; Sections 3, 3A and 63(e) of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kariuki v Ringsview Apartments Limited & another (Environment & Land Case E140 of 2021) [2022] KEELC 3823 (KLR)", Case Analysis (2022). Notice of motion dated April 23, 2021 (main suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3823/eng@2022-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.