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ELCPartially AllowedNot stated in the judgment· [2024] KEELC 3515 (KLR)

Isaac Gathungu Wanjohi v Joseph Mwaniki Gitau & Another

Environment and Land Court
30 April 2024
EWE. K. Wabwoto
1,367 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A Nairobi land buyer won a court order stopping the sellers from selling or transferring disputed plots until his case is fully decided.

What this practically means

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Executive summary

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The Plaintiff, who described himself as a bona fide purchaser of LR No 14702/31 and LR No 14702/32, moved the Court by a Notice of Motion dated 22nd September 2023 seeking a temporary injunction restraining the Defendants from selling, transferring, charging, leasing or otherwise dealing with the two parcels pending the hearing and determination of the suit, which seeks specific performance. The 1st Defendant opposed the application through a replying affidavit, further replying affidavit, grounds of opposition and submissions, arguing that there was no nexus between the suit properties and the sale agreements (which related to LR No 14702/12-14), that uncountersigned fundamental changes to the contracts cast doubt on their validity, that the agreement terms had expired 180 days after 15th October 2008, and that the application contravened Order 40 Rule 2 of the Civil Procedure Rules. The Plaintiff countered that receipt of the purchase price was not contested and that a sale agreement between the Defendants and third parties dated 25th February 2023 demonstrated an intent to dispose of the parcels. The Court, applying Giella v Cassman Brown and Nguruman, framed one issue: whether the Plaintiff met the threshold for injunctive relief. It found the nexus between the parcels confirmed by the Defendants' own Further Replying Affidavit, no evidence countering receipt of the purchase price, and sufficient proof of intent to dispose. Holding that disputed questions of contractual validity fell for trial, the Court allowed the application and issued a temporary injunction restraining sale, transfer or charging of the parcels, with costs to abide the main suit.

Key legal issues

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01

Whether the Plaintiff established a prima facie case and met the threshold for a temporary injunction

Holding

The Court found the threshold met: the Further Replying Affidavit confirmed the nexus between the suit parcels and the sale agreements, there was no evidence countering receipt of the purchase price, and a sale agreement with third parties showed intent to dispose of the property

Reasoning

The Court applied the Giella v Cassman Brown and Nguruman principles. It found a nexus between LR 14702/31 and 14702/32 and LR No 14702/12-14 from the Defendants' own Further Replying Affidavit, noted no refutable evidence on receipt of the purchase price, and found a Sale Agreement dated 25th February 2023 with third parties sufficient proof of intent to dispose of the premises. Disputed questions of contract validity were reserved for trial.

p. 3

Legal principles established

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  • An applicant for a temporary injunction must show a prima facie case with a probability of success, irreparable injury not compensable by damages, and if in doubt, the balance of convenience (Giella v Cassman Brown)

Court orders

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  1. 1.Pending hearing and determination of the main suit, a temporary injunction is issued restraining the Defendants/Respondents, their agents, servants, officers and/or any other body or entity from selling, transferring or charging the properties comprised LR No 14702/31 and LR No 14702/32
  2. 2.Costs to abide the determination of the main suit

Authorities

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Legislation

  • Civil Procedure ActSection 63
  • Civil Procedure RulesOrder 40 Rule 1 and Order 40 Rule 2

Cases cited (5)

  • Giella v Cassman Brown & Co. Ltd.
    [1973] E.A 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    [2014] eKLR; CA No 77 of 2012
  • Mrao Limited v First American Bank of Kenya Limited & 2 others
    [2003] KLR 125
  • Morris and Co Ltd v Kenya Commercial Bank
    [2003]
  • Sunrise Properties Ltd v Fifty Investments Ltd & another
    [2007] eKLR
Jurisdiction invoked
Section 63 of the Civil Procedure Act and Order 40(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, "Isaac Gathungu Wanjohi v Joseph Mwaniki Gitau & Another", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3515/eng@2024-04-30

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