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ELCDismissedEnvironment & Land Case E009 of 2023· [2023] KEELC 21913 (KLR)

Kindi v Highport Merchants Limited; MM Gitonga Advocates LLP (Interested Party)

Environment and Land Court
30 November 2023
3,284 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Narok refused to order the return of title documents or removal of cautions before trial, because the dispute was not clear-cut.

What this practically means

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Executive summary

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This is a ruling by C.G. Mbogo, J of the Environment and Land Court at Narok on a Notice of Motion dated 29th September 2023 by the plaintiff, Moriaso Ole Kindi, against Highport Merchants Limited (defendant) and MM Gitonga Advocates LLP (interested party). The plaintiff sought a mandatory injunction compelling the interested party to return original certificates of title to five parcels (Cis Mara/Oldonyo Rasha/148, 357, 360, 361 and 365) and an order requiring the defendant to initiate removal of restrictions it had lodged over the properties, pending hearing of the suit. The dispute arises from a 23rd June 2021 agreement for sale of the parcels for Kshs. 87,000,000/-, with a deposit of Kshs. 5,000,000/-. The plaintiff alleged the defendant breached the agreement, that a completion notice issued on 14th August 2023 went unanswered, and that the contract stood rescinded. The defendant opposed, alleging material non-disclosure, that it had paid Kshs. 38,246,091/-, that the plaintiff lacked spousal consent under clause 9.1, and that its cautions protected a purchaser's interest arising from part payment. The court framed a single issue: whether the plaintiff was entitled to a mandatory injunction. Applying the higher threshold for mandatory injunctions from Malier Unissa Karim v Edward Oluoch Odumbe, Kenya Breweries v Washington Okeyo, Joseph Kaloki v Nancy Atieno Ouma and Shariff Abdi Hassan v Nadhif Jama Adan, the court held no special circumstances existed and the case was not so clear as to be decided at once, given competing claims on completion, default and warranties. It further held that removal of the cautions raised substantive issues for trial under Section 73 of the Land Registration Act. The application was dismissed with costs in the cause.

Key legal issues

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01

Whether a mandatory injunction should issue at the interlocutory stage

Holding

No - the applicant failed to demonstrate special circumstances or a clear case warranting interlocutory mandatory injunction

Reasoning

The court applied the higher threshold for mandatory injunctions from Malier Unissa Karim v Edward Oluoch Odumbe, Kenya Breweries v Washington Okeyo and Joseph Kaloki v Nancy Atieno Ouma. It found competing claims on completion, default and warranties in the sale agreement requiring full trial interrogation, and held the parties should be afforded the chance to present their case at trial.

02

Whether the cautions/restrictions lodged by the defendant should be removed pending trial

Holding

No - removal of cautions raises substantive issues for trial

Reasoning

The court set out Section 73 of the Land Registration Act on removal of cautions and held that, on the facts presented by both parties, the issues relating to removal of the cautions are substantive and must be determined through trial rather than at the interlocutory stage.

p. 6

Legal principles established

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  • A mandatory injunction will not normally be granted at the interlocutory stage in the absence of special circumstances, unless the case is clear and ought to be decided at once, the act is simple and summary, or the defendant attempts to steal a match on the plaintiff
  • Where the party against whom a mandatory injunction is sought is prima facie on the wrong, courts may act without waiting for full hearing
  • A caution may be withdrawn by the cautioner or removed by order of the court or, subject to subsection (2), by order of the Registrar under Section 73 of the Land Registration Act

Court orders

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  1. 1.The notice of motion application dated 29th September 2023 is dismissed
  2. 2.Costs to be in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B and 63C
  • Civil Procedure RulesOrder 40 Rules 1 & 2; Order 51 Rule 1
  • Land Registration ActSection 73

Cases cited (26)

  • Mrao Limited versus First American Bank Kenya Limited & 2 Others
    [2003] eKLR

    Definition of prima facie case (relied on by plaintiff)

  • Anne Murambi versus John Munyao Nyamu & Another
    [2018] eKLR

    Prima facie case threshold (relied on by plaintiff)

  • Pius Kimaiyo Langat versus Cooperative Bank of Kenya Limited
    [2017] eKLR

    Prima facie case threshold (relied on by plaintiff)

  • Francis Kiarie Kamau & Another versus Sammy Kimemia Njuguna & Another
    [2021] eKLR

    Spousal consent not required for non-matrimonial property (relied on by plaintiff)

  • Vipingo Properties Limited versus Randolph Tindika; Registrar of Titles (Interested Party)
    [2022] eKLR

    Spousal consent issue (relied on by plaintiff)

  • Methodist Church in Kenya versus Mohamed Fugicha & 3 Others
    [2019] eKLR

    Mandatory order sought against wrong party (relied on by defendant)

  • Victor Mabachi & Another versus Nurtun Bates Limited
    [2013] eKLR

    Orders against a party not before the court (relied on by defendant)

  • Maher Unissa Karim versus Edward Oluoch Odumbe
    [2015] eKLR

    Higher threshold for mandatory injunctions (relied on by defendant; adopted by court)

  • Kenya Power & Lighting Co. Limited versus Samwel Mandere Ogeto
    [2017] eKLR

    Special circumstances for mandatory injunction (relied on by defendant)

  • Barclays Bank of Kenya Limited versus Banking Insurance & Finance Union (Kenya)
    [2019] eKLR

    Interlocutory orders should not determine the suit (relied on by defendant)

  • Hezron Kamau Gichuru versus Kianjoya Enterprises Limited & Another
    [2022] eKLR

    Interlocutory stage considerations (relied on by defendant)

  • Macharia Mwangi Maina & 87 Others versus Davidson Mwangi Kagiri
    [2014] eKLR

    Interlocutory relief principles (relied on by defendant)

  • Joel Mwangangi Kithure versus Priscah Mukorimburi
    [2022] eKLR

    Interlocutory relief principles (relied on by defendant)

  • Fibrosa Spolka Akayina versus Fairbarn Lawson Combe Barbour Limited
    [1943] AC

    Contract/frustration principles (relied on by defendant)

  • Local Empowerment for Good Governance & 6 Others versus Community Executive Committee Member Finance & Economic Planning-County Government of Mombasa & 2 Others
    [2021] eKLR

    Interlocutory relief principles (relied on by defendant)

  • Peter Kihika Ng'ang'a versus Amos Kimeli Chamdala
    [2021] eKLR

    Interlocutory relief principles (relied on by defendant)

  • Esther Wanjiku Mwangi & 3 Others versus Wambui Ngarachu
    [2017] eKLR

    Interlocutory relief principles (relied on by defendant)

  • Kenleb Cons. Limited versus New Gatitu Service Station Limited & Another
    [1990] eKLR

    Candour required of a party seeking equitable relief (relied on by defendant)

  • JM versus SMK & 4 Others
    [2022] eKLR

    Candour/full disclosure in equitable applications (relied on by defendant)

  • Caliph Properties Limited versus Barbel Sharma & Another
    [2015] eKLR

    Cautions protecting purchaser's interest (relied on by defendant)

  • Sabina Somoine Parteyie versus County Lands Registrar Kajiado & Another
    [2021] eKLR

    Removal of cautions is a substantive issue (relied on by defendant)

  • Martin Nzioka Mutua & 2 Others v Mamuco Sacco Limited
    [2018] eKLR

    Cautions and purchaser's interest (relied on by defendant)

  • Malier Unissa Karim v Edward Oluoch Odumbe
    (2015) eKLR

    Test for granting a mandatory injunction - adopted by the court

  • Kenya Breweries Ltd-Vs-Washington Okeyo
    (2002) EA 109

    Principles governing grant of mandatory injunction from Halsbury's Laws - adopted by the court

  • Joseph Kaloki t/a Royal Family Assembly v Nancy Atieno Ouma
    [2020] eKLR

    Reaffirming Kenya Breweries v Okeyo on mandatory injunctions - adopted by the court

  • Shariff Abdi Hassan v Nadhif Jama Adan
    [2006] eKLR

    Courts' reluctance to grant mandatory injunctions at interlocutory stage - adopted by the court

Jurisdiction invoked
Environment and Land Court jurisdiction under Article 162(2)(b) of the Constitution (land and environment disputes); application brought under Sections 1A, 1B and 63C of the Civil Procedure Act and Order 40 Rules 1 & 2 and Order 51 Rule 1 of the Civil Procedure Rules

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, "Kindi v Highport Merchants Limited; MM Gitonga Advocates LLP (Interested Party)", Case Analysis (2023). Environment & Land Case E009 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21913/eng@2023-11-30

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