Gitau v Gichohi & 9 others (Environment & Land Case 175 of 2022) [2023] KEELC 868 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Prima facie case for interlocutory injunction
The Plaintiff established a prima facie case with probability of success given the undisputed sale agreement, payment of Kshs 13 million, and possession for over 12 years.
The court found it undisputed that a sale agreement existed, Kshs 13 million was paid, the Plaintiff paid monthly sums of Kshs 74,000 and has been in possession for over 12 years. The Defendants, who did not deny executing the contracts or receiving consideration, belatedly alleged lack of capacity. Applying Nguruman Limited v Jan Bonde Nielsen, the Plaintiff showed a clear right directly threatened by threatened eviction and disposal, justifying interlocutory relief.
Irreparable injury and balance of convenience
Eviction after 12 years' possession would cause the Plaintiff greater harm than the Defendants would suffer; balance of convenience tilts toward the Plaintiff.
Applying the Pius Kipchirchir Kogo v Frank Kimeli Tenai formulation of irreparable injury, the court noted the Plaintiff had been in possession for over 12 years. If evicted he would suffer harm not adequately compensable in damages, while the Defendants have had no possession in that period. The balance of convenience therefore favours preserving the status quo pending trial.
Limitation of Actions
The cause of action arose when the Defendants, after obtaining letters of administration, refused to execute the transfers - not at execution of the contract.
The Defendants raised limitation as a bar. The court held that limitation runs from the date the cause of action accrued. On the uncontroverted evidence, that date was when the Defendants obtained letters of administration and refused to execute the transfers in April 2022, so the claim was not time-barred at the date of filing.
Validity of contracts executed before grant of letters of administration
Not conclusively determined; found arguable. The Plaintiff's contention that one vendor was alive when the contract was signed sufficed at the interlocutory stage.
The Defendants argued the sale agreement and Deed of Variation were null and void for want of letters of administration, relying on Estate of Barasa Kanenje Manya. The Plaintiff distinguished Estate of John Gakunga, noting one vendor was alive at execution and the beneficiaries later became administrators. At the interlocutory stage, with the Defendants not denying receipt of consideration, the court found these questions arguable and left them for trial.
Legal principles established
#- The principles for granting an interlocutory injunction are those in Giella v Cassman Brown: prima facie case, irreparable injury not compensable in damages, and balance of convenience if in doubt.
- The burden of proving a prima facie case requires a clear and unmistakable right directly threatened, material and substantive invasion, and urgent necessity.
- In limitation, the cause of action for breach of a sale contract runs from the date of the breach, not the date of execution of the contract.
Court orders
#- 1.An interlocutory injunction restraining the Defendants, their representatives, employees, servants, agents or anybody claiming through them from disposing of, entering in encroachment on or in any manner interfering with the plaintiff's use and quiet possession of LR No 209/276/35 pending hearing and determination of the suit
- 2.Costs of the application to abide the outcome of the main suit
- Jurisdiction invoked
- Not expressly invoked; suit on land LR No 209/276/35 under Order 40 Rule 1(a) and (b) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gitau v Gichohi & 9 others (Environment & Land Case 175 of 2022) [2023] KEELC 868 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/868/eng@2023-02-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.