Atieno v Omaido (Environment and Land Case E047 of 2025) [2025] KEELC 8201 (KLR)

6. Again, the plaintifi deposes that, in good faith, on 20/3/2025, she issued a cheque of Kshs. 200,000/ =, which the respondent rejected and later sent via Mpesa Kshs. 130,000/=, which he accepted as per annexure marked LA-(4). 7. Despite the foregoing, the applicant deposes that the respondent has declined to transfer the land, which is a fundamental breach of the sale agreement, and instead has issued a termination notice dated 25/7/2025, attached as LA-(5) and seeking to have the land surrendered to him. 8. Further, he applicant deposes that the respondent has now proposed to subdivide the suit land and transfer to her 2.5 acres only and that she surrenders back the other 2.5 acres, which is contrary to the sale agreement dated 19/9/2009. 9. The plaintifi deposes that he has extensively developed the suit land as per the photos attached as LA(6); otherwise, the conduct of the defendant amounts to unjust enrichment, as he cannot retain the entire purchase price while denying her a portion of the land fully paid to him. 10. The application is opposed through a replying afidavit sworn on 1/11/2025. The respondent avers that the applicant is out to mislead the court, since the application is full of falsehoods and misrepresentations. He avers that they entered into a sale agreement dated 17/9/2009, for the purchase of the suit land, valued at Kshs. 1,700,000/=. The terms of the sale agreement were that the applicant was to deposit Kshs. 850,000/=, upon execution of the agreement, and the balance was to be paid by 31/1/2010. 11. The respondent avers that the applicant, in breach of Clause 3 of the sale agreement, issued a bankers' cheque on 28/9/2010 for part payment of the deposit of Kshs. 460,000/=, leaving a balance of Kshs. 390,000/=. In further breach of the terms of the sale agreement, the applicant continued to make partial payment of the consideration amounting to Kshs. 1,310,000/=. He has annexed copies of the deposit slips as JEO-1 and 2 12. As to the alleged cash payment of Kshs. 300,000/=, the respondent avers that there is no evidence in support of the payment and denies holding a meeting at his residence. The respondent also avers that no deed of variation was executed to vary, extend, or waive the completion date. The contract of sale of the suit land was rendered voidable due to the applicant's failure to complete. 13. The applicant avers that the applicant failed to comply with the completion notice issued on 9/1/2025, which defaulted the sale agreement by 30/1/2025. Subsequently, upon computation of the total amount paid, the parties agreed to refund the Kshs. 1,310,000/=, less 10%. The applicant avers that it is now 16 years since the execution of the agreement, the applicant has come to court with unclean hands, there are ongoing legitimate transactions over the said property involving third parties not before the court, and it would be unjust to issue injunctive orders restraining dealings with the entire parcel 14. Again, the respondent avers that there are no permanent structures have been erected on the property by the applicant, who has, from time to time, leased out the said parcel to third parties for her personal gain. It is, therefore, inequitable and unconscionable for the applicant to seek relief, since she caused the delay and non-performance of her contractual obligations 15. The respondent avers that there is no prima facie case established, the applicant shall not sufier any irreparable loss, and the balance of convenience favours the registered proprietor. 16. The applicant filed written submissions dated 10/11/2025 while the respondent relied on submissions dated 14/11/2025, both of which this court has considered. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8201/eng@2025-11-26 2

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17. Order 40 Rule 1 of the Civil Procedure Rules provides that where in any suit it is proved by afidavit or otherwise that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit or that the defendant threatens or intends to remove or dispose of his property in circumstances afiording reasonable probability that the plaintifi will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant the suit, the court may order or grant a temporary injunction to restrain such act or may order to prevent such wasting, damaging, alienation, sale, removal or disporting of the property as the court thinks fit, until the disposal of the suit, or until further orders. 18. Order 40 Rule 2 of the Civil Procedure Rules provides that in any suit restraining he defendant from committing a breach of contract or other injury of any kind, a plaintifi may apply for a temporary injunction to restrain the defendant from committing a breach of contract or such injury complained of arising out of the same contract or relating to the same property or right. 19. The cause of action by the plaintifi is captured in the plaint dated 5/9/2025, in which she seeks, inter alia a declaratory order that she is a beneficial and legal owner of the 5 acres out of the suit land, an order compelling the defendant to subdivide the land, and transfer the 5 acres to her, a permanent injunction, adverse possession, general damages for trespass and breach of contract. 20. Courts do not rewrite contracts, but enforce them. Parties are bound by the terms and conditions of their contract, unless the same is vitiated by illegality, fraud, or undue infiuence, or is against public policy. See National Bank of Kenya -vs- Pipe Plastic Samkolit (K) Ltd [2002] 2 EA 503 and Pius Kimaiyo Langat -vs- Co-operative Bank (K) Ltd [2017] eKLR. 21. The burden is on the applicant to establish a prima facie case with a probability of success at the hearing, show that she will sufier irreparable loss or damage in the absence of an injunction and lastly that the balance of convenience tilts in favour of granting the orders sought. A prima facie case is established where, looking at the material before the court, a right has been violated or breached to call he opposite party for a rebuttal. See Mrao Ltd -vs- First American Bank of (K) Ltd & Others [2005] KLR 125. 22. The applicant contends that she has paid a substantial amount to acquire the property measuring 5 acres from the respondent, which he is yet to subdivide or transfer to her. 23. It is averred that a premature termination notice attached as LA-(5) has been issued despite the defendant receiving full payment. She terms the termination as a fundamental breach of the sale agreement dated 19/9/2009. Order 40 Rule 2 of the Civil Procedure Rules envisages the issuance of a temporary injunction to restrain a breach of a contract or other injury of any kind to the property in dispute and to preserve it if it is established that it is in danger of being wasted, damaged, or alienated. 24. An arguable case or question must be raised by the applicant to be tried at the hearing. Irreparable damage or loss is one that may not be quantified in monetary terms. It must be real, apparent, imminent, and mere fear or apprehension is not enough. See E.A. Industries Ltd -vs- Trufoods Ltd [1972] EA 420. 25. Balance of convenience as held in Paul Gitonga Wanjau -vs- Gathuthi Tea Factory Co. Ltd & Others [2016] eKLR, arises where if the injunction is not granted, and the suit ultimately decided in favour of the plaintifi, the inconvenience to him would be greater than that which would be occasioned to the defendant, if the injunction is granted and the suit ultimately dismissed. See Pius K. Kogo -vs- F.K. Tenai [2018] eKLR. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8201/eng@2025-11-26 3

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26. The three steps must be established logically and sequentially. To establish whether or not the steps have been met, the court need not conduct a mini-trial or make definitive findings on both law and facts. See Nguruman Ltd -vs- Jan Bonde Nielsen & Others [2014] eKLR. 27. In doing so, the court evaluates the facts or the evidence presented, without going to the merits of the case at the interlocutory stage, to see to it that there is a need to preserve the subject matter pending the hearing and determination of the suit. See Uhuru Highway Development Ltd -vs- Central Bank of Kemya & Others [1996] eKLR. 28. The court strives to mitigate the lower risk of injustice in case it turns out to have been wrong. See Films Rover International -vs- Cannon Films Sales Ltd [1986] 3 ALLER 772. The defendant herein has not filed a replying afidavit by 22/10/2025. The notice rescinding the contract of sale of land is what has triggered this application. It is only in special cases where equity might be prepared to relieve a party from a bad bargain. It is not the function of a court of equity to allow a party to escape from a bad bargain. See Fina Bank Ltd -vs- Spares & Industries Ltd Civil Appeal No. 51 of 2000 and Eldo City Limited -vs- Corn Products Kenya Ltd & another [2013] eKLR. 29. Discharge from the obligation in the sale agreement on the part of the defendant is what the applicant says shall amount to irreparable loss and damage, for she has paid all the consideration. I think the applicant has established a prima facie case. 30. In Mwangi -vs- Kiru [1987] eKLR, the court cited Chitty on Contracts 25th Edition Vol. 1 page 1591 on discharge by breach, which in law gives rise to a cause of action. Specific performance is what the applicant is also seeking, which is a discretionary remedy. See Reliable Electrical Engineers Ltd vs- Mantrac (K) Ltd [2006] eKLR. I think the circumstances herein favour a grant of a temporary injunction as prayed. The same is allowed to last for one (1) year, from the date hereof. 31. Orders accordingly. RULING DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 26TH DAY OF NOVEMBER 2025. HON. C.K. NZILI JUDGE, ELC KITALE. In the presence of: Court Assistant – Dennis Cherono for the Respondent present Otieno for the Applicant present https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8201/eng@2025-11-26 4

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