Kimani & 6 others v Kanyi & another
The bottom line
#A Mombasa court blocked Stanbic Bank from selling or interfering with land bought by seven families, ruling the seller had no right to charge it.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiffs established a prima facie case with probability of success
Yes - the Plaintiffs purchased marionettes on the suit property, paid the full purchase price, and the 1st Defendant charged the property to the Bank without their knowledge or consent
The court found it undisputed that the Plaintiffs entered sale agreements with the 1st Defendant, paid the full purchase price including registration costs, and took possession. The 1st Defendant then charged the property to the Bank without notifying or seeking the Plaintiffs' consent. Having sold the leasehold interest, the 1st Defendant had no proprietary interest capable of securing the charge. The Bank's argument that the sale agreements described a different property (Section III) was held premature, to be interrogated at full trial.
Whether the Plaintiffs would suffer irreparable injury not compensable in damages
Yes - the Plaintiffs and their families reside on the property as matrimonial homes and would be rendered homeless and destitute
The court accepted that the Plaintiffs' rights to the suit property could not be adequately compensated by damages. They had moved in with their families and made the property their matrimonial homes; eviction would leave them homeless and destitute for a mistake not of their making. The 2nd Defendant's own evidence that the 1st Defendant was in breach of charge covenants showed a real risk of exercise of statutory power of sale during the pendency of the suit.
Whether the balance of convenience tilts in favour of the Plaintiffs
Yes - there is a lower risk of injustice in granting the injunction than in refusing it
Applying the principle that the court should opt for the lower rather than the higher risk of injustice, the court found the Plaintiffs exposed to a higher risk of harm (loss of homes) than the Bank (whose interest is limited to loan recovery). The court also noted it had not had the opportunity to interrogate all documents, including the annexures to the Bank's replying affidavit, and preservation of the suit property was necessary pending full trial.
Whether the Bank's objection that the sale agreements described a different property (Section III rather than Section IV) defeated the application
The objection was premature and could not be determined at the interlocutory stage
The Bank argued the six sale agreements described Sub-Division Number 1528 Section III Mainland North, not the charged Section IV property. The court held that at an interlocutory stage it is not required to make final findings of contested facts and law, and should only weigh the relative strength of the parties' cases. The validity of the Bank's challenge to the suit required full interrogation of documents at trial.
Legal principles established
#- A vendor who has sold the leasehold interest of land to purchasers no longer has a proprietary interest in it capable of securing a charge while the purchasers' leases subsist
- All three Giella conditions must be satisfied sequentially for an interlocutory injunction
Court orders
#- 1.The Notice of Motion application dated 13th August, 2021 is found to have merit and is allowed in its entirety
- 2.An order of temporary injunction restraining the Defendants, their officers, agents, employees, assigns or any person acting on their behalf from disposing of, leasing, renting, or in any manner dealing with or interfering with the Plaintiffs' use, ownership and occupation of Sub-Division Number 1528 Section IV Mainland North pending hearing and determination of the suit
- 3.The suit to be disposed of within 180 days commencing 20th February, 2024, with a mention on July 27, 2023 for Pre-Trial Conference under Order 11 of the Civil Procedure Rules, 2010
- 4.Costs of the application awarded to the Plaintiffs/Applicants
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act; application brought under Sections 30, 54(5), 56 and 57 of the Land Registration Act, Sections 1A and 3A of the Civil Procedure Act and Order 40 Rule 1 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimani & 6 others v Kanyi & another", Case Analysis (2023). Environment & Land Case 158 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18774/eng@2023-06-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.