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ELCDismissedEnvironment & Land Case E037 of 2022· [2023] KEELC 16782 (KLR)

Cherono & another v Kimurgor & 3 others; Elgeyo Border Investment Limited (Interested Party)

Environment and Land Court
13 April 2023
EOE. O. Obaga
1,321 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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An Eldoret court refused to protect land buyers who never signed the sale agreement or paid on time, showing paperwork discipline decides Kenyan land disputes.

What this practically means

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Executive summary

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The plaintiffs, legal representatives of the estate of Joseph Toroitich Cherono, moved the Environment and Land Court at Eldoret by notice of motion dated 6th July 2022 seeking a temporary injunction restraining the defendants from trespassing on, encroaching or dealing with plot E77 (allegedly renamed E38), said to be excised from LR Nos. 10930, 6802 and 75557/2 owned by the interested party, Elgeyo Border Investment Limited. The plaintiffs alleged the deceased had paid the full purchase price of Kshs 2,250,000 for five acres under a sale agreement of 15th June 2015 and taken possession, but that the 2nd to 4th defendants fraudulently renamed the plot and sold it to the 1st defendant. The respondents opposed, arguing the suit was an abuse of process given a prior injunction application in ELC 205 of 2021 before the Chief Magistrates court which was dismissed, that the deceased never executed the agreement nor paid the price on execution, and that payments slips did not specify the plot. The court framed a single issue: whether a prima facie case was established. Applying Giella v Cassman Brown and the Mrao definition of a prima facie case, Obaga J found the deceased did not execute the sale agreement as purchaser and did not pay the purchase price on execution; later payments, including one made after his death, contravened the agreement's express terms. The court also held any such monies were refundable, so damages would suffice. The application was dismissed with costs to the respondents, and the file was directed to be transferred to the Chief Magistrates court for hearing and determination.

Key legal issues

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01

Whether the Applicants established a prima facie case warranting an interlocutory injunction

Holding

No prima facie case was established because the deceased purchaser neither executed the sale agreement nor paid the purchase price on execution as the agreement required

Reasoning

The sale agreement was signed by three directors of the interested party but not by the deceased as purchaser. The purchase price of Kshs 2,250,000 was to be paid on execution, but was not. Payments made later, including one after the deceased's death, contravened the express terms of the agreement, so no apparent legal right was infringed.

p. 3
02

Whether damages would be an adequate remedy

Holding

Any payments made could be refunded, so the Applicants would suffer no loss not compensable in damages

Reasoning

Even assuming the post-agreement payments related to the 15/6/2015 agreement, the court held the monies are refundable, meaning no irreparable injury would flow from refusing the injunction. This independently disposes of the second Giella limb.

p. 3

Legal principles established

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  • The principles for an interlocutory injunction are those in Giella v Cassman Brown: prima facie case with probability of success, irreparable injury not compensable in damages, and balance of convenience if in doubt
  • A prima facie case is one where, on the material presented, the court concludes a legal right has apparently been infringed calling for an explanation or rebuttal

Court orders

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  1. 1.The Applicants' notice of motion dated 6th July 2022 is dismissed with costs to the Respondents
  2. 2.The file be transferred to the Chief Magistrates court for hearing and determination
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court) - not expressly stated in the ruling

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, "Cherono & another v Kimurgor & 3 others; Elgeyo Border Investment Limited (Interested Party)", Case Analysis (2023). Environment & Land Case E037 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16782/eng@2023-04-13

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