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ELCDismissedNot stated in the extract (reference to prior ELC No. E059 of 2023)· [2024] KEELC 5805 (KLR)

Kangatta Properties Limited v Kagotho & 3 others (Environment & Land Case E192 of 2024) [2024] KEELC 5805 (KLR)

Environment and Land Court
29 July 2024
5,336 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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A Nairobi land buyer's bid to block a property sale failed because they held no title and offered no proof of irreparable harm.

What this practically means

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Executive summary

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This is a ruling on the Plaintiff/Applicant's notice of motion dated 13th May 2024, brought under Sections 1A, 1B, 3A and 27 of the Civil Procedure Act and Orders 22, 40 and 51 of the Civil Procedure Rules 2010, seeking a temporary injunction restraining the 4th Defendant from transferring, alienating, selling or otherwise interfering with the suit property known as Nairobi Block/40/526 (formerly LR No. 209/3531/15) off Park Road, Nairobi, plus an order that the OCS Pangani Police Station oversee compliance. The Applicant claimed it held title which was fraudulently transferred to the 1st and 2nd Defendants and onward to the 4th Defendant, who asserted she is a registered proprietor and bona fide purchaser for value. The court framed three issues: res judicata, prima facie case, and irreparable loss. On res judicata, it held the doctrine inapplicable because the previous suit (ELC No. E059 of 2023) was withdrawn rather than heard and determined on merit. On the merits of the injunction, the court found the Applicant conceded the property is registered in the 4th Defendant's name, holds no current title, and its fraud allegations require proof to the requisite standard; whether the 4th Defendant is a bona fide purchaser could only be tested at plenary hearing. The Applicant also adduced no evidence of irreparable loss not compensable in damages. Finding neither a prima facie case nor irreparable loss, the court dismissed the application with costs to the 1st, 2nd and 4th Defendants on 29th July 2024.

Key legal issues

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01

Res judicata

Holding

The suit and application are not barred by res judicata because the previous suit ELC No. E059 of 2023 was withdrawn, not heard and determined on merit.

Reasoning

The court adopted the elements in John Florence Maritime Services Ltd: a former final judgment on merit by a court of competent jurisdiction with identical parties, subject matter and cause of action. Since the previous suit was withdrawn at the Applicant's instance, there was no final determination to found res judicata, and no similar suit remained pending.

p. 6
02

Prima facie case

Holding

The Applicant failed to demonstrate a prima facie case because it holds no title, having conceded that the property is registered in the 4th Defendant's name, and its fraud allegations remain unproved.

Reasoning

Relying on Mrao Ltd and Nguruman Ltd, the court held an applicant must show a genuine and arguable right apparently infringed. The Applicant conceded the title was transferred to and registered in the 4th Defendant's name; its plea of fraud required proof to the requisite standard, and whether the 4th Defendant is a bona fide purchaser for value could only be determined at plenary hearing. Thus no lawful or equitable right was shown on a prima facie basis.

p. 8
03

Irreparable loss

Holding

The Applicant failed to demonstrate any irreparable loss; the supporting affidavit disclosed no evidence of loss incapable of monetary compensation.

Reasoning

Following Nguruman Ltd and Vivo Energy v Maloba Petrol Station, injury must be actual, substantial and demonstrable and not adequately compensable in damages. The court found no scintilla of evidence in the supporting affidavit on the nature of loss; the Applicant focused on fraud allegations provable only at hearing and paid scant attention to irreparable loss.

p. 10

Legal principles established

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  • Res judicata only applies where the previous suit was heard and determined on merit; a withdrawn suit does not trigger the doctrine.
  • A plea of fraud must be proved to the requisite standard before a transfer and registration of land can be impeached.
  • Irreparable loss must be expressly deponed to and substantiated with cogent evidence; it cannot be inferred or speculated.

Court orders

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  1. 1.The application dated the 13th May 2024 is dismissed with costs to the 1st, 2nd and 4th Defendants/Respondents.

Authorities

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Legislation

  • Civil Procedure Act (Chapter 21 Laws of Kenya)Sections 1A, 1B, 3A and 27
  • Civil Procedure Act (Chapter 21 Laws of Kenya)Section 7
  • Civil Procedure Rules 2010Order 22 Rule 22; Order 40; Order 51
  • Land Registration Act, 2012Sections 24 and 25

Cases cited (18)

  • Giella v Casman Brown & Co Ltd
    [1973] EA
  • Satros Ayuma & 11 Others v Registered Trusttees of the Kenya Railways Staff Benefits Scheme & 2 Others
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 Others
    [2003] eKLR
  • East African Portland Cement Ltd v Capital Markets Authority & 4 Others
    [2014] eKLR
  • Caliph Properties Ltd v Barbel Sharma & Another
    [2015] eKLR
  • John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others
    (Petition 17 of 2015) [2021] KESC 39 (KLR) (Civ) (6 August 2021)
  • Bernard Mugo Ndegwa v James Nderitu Githae & 2 others
    (2010) eKLR
  • ET v Attorney-General & another
    (2012) eKLR
  • Omondi v National Bank of Kenya Limited and others
    (2001) EA 177
  • Njangu v Wambugu and another, Nairobi HCCC No 2340 of 1991
    (unreported)
  • Uhuru Highway Developers Limited v Central Bank of Kenya & others
    [1999] eKLR
  • Nicholas Njeru v Attorney General & 8 others
    Civil Appeal 110 of 2011 (2013) eKLR
  • Kuria Kiarie v Sammy Magera
    [2018] eKLR
  • Nguruman Ltd v Jan Bonde Nielsen
    [2014] eKLR
  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    [2014] eKLR
  • American Cyanamid Co. v Ethicon Ltd
    [1975] AC 396
  • Ramanlal Trambaklal Hatt v Republic
    [1957] E.A. 332
  • Vivo Energy v Maloba Petrol Station & Another
    [2015] eKLR
Jurisdiction invoked
Sections 1A, 1B, 3A and 27 of the Civil Procedure Act (Cap 21); Order 22 Rule 22; Order 40 and Order 51 of the Civil Procedure Rules 2010

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, "Kangatta Properties Limited v Kagotho & 3 others (Environment & Land Case E192 of 2024) [2024] KEELC 5805 (KLR)", Case Analysis (2024). Not stated in the extract (reference to prior ELC No. E059 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5805/eng@2024-07-29

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