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ELCDismissedEnvironment & Land Case E010 of 2022· [2022] KEELC 15416 (KLR)

Simalice Construction Company Ltd v Arjan & another

Environment and Land Court
21 December 2022
CMCG Mbogo
2,919 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to freeze land sales where the only dispute was a money balance that could be repaid later.

What this practically means

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Executive summary

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The applicant, Simalice Construction Company Ltd, moved the Environment and Land Court at Narok by notice of motion dated October 5, 2022 under Order 40 rule 1 of the Civil Procedure Rules and section 3A of the Civil Procedure Act, seeking a temporary injunction restraining the respondents from alienating, entering, subdividing, altering, taking possession of or interfering with LR Cis-Mara/Siana 'A'/4641 and Cis-Mara/Siana 'A'/2385 pending determination of the suit. The applicant deposed that it had sold the properties to the respondents under agreements of November 16, 2021 and March 31, 2022, that the price was revised from Kshs 41,500,000 to Kshs 30,000,000, and that a balance of Kshs 5,500,000 remained unpaid despite the respondents having taken transfer and possession. The respondents opposed, asserting that payment was nearly complete, that only Kshs 500,000 was withheld because the applicant blocked access, and that the applicant had procured the consent to transfer itself. The respondents argued the Giella test was not met and that damages would suffice. The court, CG Mbogo J, framed a single issue: whether the applicant was entitled to an injunction. Applying the Mrao definition of a prima facie case and the Nguruman sequential three-pillar test, the court held that the applicant had sold the property and received almost the entire purchase price, that the 1st respondent was the registered owner, and that the disputed balance was quantifiable and recoverable in damages. No irreparable harm was established. The application was dismissed with each party bearing its own costs.

Key legal issues

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01

Whether the applicant established a prima facie case and irreparable injury to warrant a temporary injunction

Holding

The application failed; the applicant had sold the property and received almost the entire purchase price, the 1st respondent was the registered owner, and any outstanding balance was quantifiable and recoverable in damages.

Reasoning

The court applied the Giella/American Cyanamid and Nguruman sequential tests. It found the sale agreement undisputed, the 1st respondent registered as owner per searches of September 28, 2022, and the only dispute a small quantifiable balance (Kshs 5,500,000 claimed vs Kshs 500,000 admitted). Damages being adequate, no irreparable harm was shown and the sequential hurdles were not crossed.

p. 5

Legal principles established

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  • A temporary injunction under Order 40 rule 1 requires proof that property in dispute is in danger of being wasted, damaged or alienated
  • Where damages are an adequate remedy, no interlocutory injunction should be granted

Court orders

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  1. 1.Notice of motion application dated October 5, 2022 dismissed
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 rules 1 and 2
  • Civil Procedure Actsection 3A

Cases cited (9)

  • Giella versus Cassman Brown
    [1973] EA 358

    Test for grant of interlocutory injunction

  • Charter House Investments Ltd vs Simon K Sang and others
    [2010] eKLR

    Injunction as a discretionary equitable remedy granted where irreparable harm is likely

  • American Cyanamid Co v Ethicom Limited
    (1975) A AER 504

    Three elements: serious issue to try, damages inadequate, balance of convenience

  • Mrao Ltd v First American Bank of Kenya and 2 others
    (2003) KLR 125

    Definition of a prima facie case

  • Moses C Muhia Njoroge & 2 others v Jane W Lesaloi and 5 others
    (2014) eKLR

    Approval of the Mrao definition of prima facie case

  • Pius Kipchirchir Kogo versus Frank Kimeli Tenai
    [2018] eKLR

    Meaning of irreparable injury

  • Peter Kairu Gitu versus KCB Bank Kenya Limited & another
    [2021] eKLR

    All three injunction conditions must be fulfilled

  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    CA NO 77 OF 2012

    Sequential satisfaction of the three injunction requirements; no leap-frogging

  • Kenya Commercial Finance Co Ltd v Afraha Education Society
    [2001] Vol 1 EA 86

    Conditions applied as separate, distinct and logical hurdles

Jurisdiction invoked
Order 40 rule 1 of the Civil Procedure Rules and section 3A 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, "Simalice Construction Company Ltd v Arjan & another", Case Analysis (2022). Environment & Land Case E010 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15416/eng@2022-12-21

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