Ali v Nomad Resort Limited

2. The Application was made on the grounds that: i. The parties entered into a sale agreement dated 3rd August 2021 for the sale of seven plots hived from Title Number L.R. Number 209/7260/184. The said plots which were transferred to the Applicant were numbered as plot 3,4,5,6,8,12 and 13. ii. The Applicant honoured the contractual obligations and paid the full purchase price which had already been paid by the time of execution of the sale Agreement. iii. The Defendant only transferred Plot 3 and 8 to the Applicant despite the Agreement providing for transfer of 7 plots. iv. Despite the Applicant serving the Vendor with a notice requiring it to complete the transaction, the Defendant has failed/refused to transfer and present the completion documents of the remaining 5 plots. v. The Applicant is apprehensive that without the injunctive orders of this Honourable Court, the Defendant may transfer, sell, charge or even develop the remaining 5 plots on the suit property thus prejudicing the interests of the Applicant. 3. No response nor written submissions were led by the Defendant despite being served. 4. The Plainti/Applicant led written submissions dated June 2, 2023, it was submitted that the Applicant stands an imminent risk of rendering the suit nugatory and a mere academic adventure as the substratum of the matter may be extinguished if transferred or sold to a third party. Relying on the cases involving Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR and Moses C Muhia Njoroge & 2 others v Jane Lesaloi and 5 Others [2014] eKLR it was argued that the Applicant had established a prima facie case with a likelihood of success by exhibiting an infringement of his rights. 5. I have considered the application and written submissions. In my view, the issue that arises for determination is whether the Plainti has met the threshold to be granted the temporary injunction order sought. 6. The Applicant is required to satisfy the criteria upon which jurisdiction to grant an interlocutory injunction is granted. The criteria was outlined in the often cited case of Giella v Cassman Brown [1973] EA 358. First, the applicant is required to demonstrate a prima facie case with a probability of success. Second, the applicant is required to demonstrate to the court that if the interlocutory injunctive relief is not granted, he would stand to suer damage that may not be indemnied through an award of damages. Third, should the court have doubt on the applicant’s satisfaction of both or either of the above requirements, the application is to be determined based on the balance of convenience. Last, at the stage of disposing the plea for an interlocutory injunction, the court seized of the application does not make denitive or conclusive pronouncements on the key issues in the suit. 7. The Court record conrms service vide an adavit of service dated March 13, 2023 sworn by Lamech Kipsang Kipyego in which he averred that service was eected upon one of the directors of the Defendant however he refused to sign the duplicate copy. 8. The Defendant never led any response to the said application. In the absence of the replying adavit rebutting the averments in the applicant’s supporting adavit, means that the Defendant has no claim https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18999/eng@2023-07-24 2

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against the applicant. Having considered the material placed before this court, I am therefore satised that the plainti has established a prima facie case herein and if I was in any doubt, the N the balance of convenience would tilt in favour of the Plainti since to deny him the order of temporary injunction will result in a greater risk of injustice. 9. 11. In the foregoing, the application dated January 19, 2023 is allowed in the following terms: i. Pending hearing and determination of this suit, an order of temporary injunction is hereby issued restraining the Defendant whether by itself, its agents, servants, employees, proxies and/or any person acting on its authority or instructions from transferring, alienating, developing, charging or carrying out any activity whatsoever over the remaining Plots 4, 5,6,12 and 13 hived from Title Number LR No 209/7260/184 and the OCPD California Police Station to supervise and ensure compliance. ii. Costs will abide the determination of the main suit. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 24TH DAY OF JULY 2023. E. K. WABWOTO JUDGE In the presence of: Mr. Mutunga for the Plainti/Applicant. N/A for the Defendant/Respondent. Court Assistant; Caroline Nafuna. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18999/eng@2023-07-24 3

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