CLIFFORD KIPKORIR KOGEI VS ROBERT KOIMA MONGO

RULING
Introduction
1.  This ruling is in respect of the notice of motion /application dated 23rd November, 2023. Through the application, the plaintiff/applicant seeks an order of temporary injunction to restrain the defendant /respondent by himself, his agents and/or servants from selling, transferring, charging and/or conducting any dealings contrary to his interests over the parcel of land known as Lembus/Kabimoi/160, (hereinafter referred to as the suit property).

2.  As can be discerned from the averments in the affidavit sworn in support of the application, the application is premised on the grounds that the plaintiff/applicant has a beneficial interest in the suit property; that the plaintiff/applicant’s interest in the suit property arises from a contract entered between himself and the defendant/respondent over the suit property; that pursuant to that contract of sale of the suit property, the plaintiff/applicant met his part of the bargain and took possession of the suit property as he awaited the defendant/respondent to perform his part of the bargain (transfer of the suit property to him); that the plaintiff/applicant effected massive development on the suit property and that in breach of his contractual obligations, the respondent failed to transfer the suit property to the plaintiff/applicant within the time agreed and at all.

3.  Apprehensive that the defendant respondent might dispose off the suit property to third parties, the plaintiff/applicant filed this suit and the instant application seeking the relief listed herein above.

4.  In reply and opposition to the application, the defendant/respondent filed grounds of opposition dated 11th January, 2024 through which he acknowledges the existence of the sale agreement on which the application is premised but contends that there is no reasonable cause of action against him as the sale agreement is no longer legally binding on the parties, having expired on 31st March, 2013.

5.  Pursuant to directions given on 15th January 2024, the application was disposed off by way of written submissions.

SUBMISSIONS

Plaintiff’s/Applicant’s Submissions

6.  In his submissions dated 6th February 2024, the plaintiff/applicant has made reference to the principles set down in Giella vs. Cassman Brown & Co. Ltd (1973)E.A 358 and the case of Mrao Ltd v. First American Bank of Kenya Ltd & 2 others (2003) eKLR, and submitted that he has established a prima facie case with probability of success.

7.  Based on the documentary evidence showing that he fulfilled his contractual obligation, took possession of the suit property and effected massive development therein and he is in occupation of the suit property, the plaintiff submits that he has made up a strong case warranting his protection, pending hearing and determination of his case.

Defendant’s/Respondent’s Submissions

8.  In his submissions dated 16th February 2024, the defendant/respondent submits that the application is fatally defective as the agreement on which it is premised is in respect of a different property, Kabimoi/Chepnes/160 and not the suit property; that the delay of 9 years in bringing his claim renders the plaintiff/applicant’s claim extremely weak and that the plaintiff/applicant’s conduct  disentitles him of an equitable remedy.

9.  The defendant/respondent has further submitted that the plaintiff/applicant will not suffer irreparable damage if the relief sought is denied as his claim can be remedied by way of refund of the purchase price.

10. Concerning the plaintiff/applicant’s allegation that he has effected massive development in the suit property, the defendant/respondent submits that there is no proof of that fact.

11. It is the defendant/respondent’s case that the balance of convenience tilts in his favour as he was not paid in time. He has also been denied opportunity to his property for a long period of time, since 2012 and inflation has set in.

12. Owing to the delay in bringing the claim, the defendant/respondent submits that the chances of the applicant succeeding in his claim are remote.

13. In a nutshell, the defendant/respondent submits that the plaintiff/applicant has not made up a case for being granted the orders sought.

Analysis and Determination
14. I have read and considered the pleadings filed in this suit, the application, grounds, affidavits and the submissions filed by the parties in respect thereof and I find that although the part payment received by the defendant/respondent is compensable by award of damages/refund, the balance of convenience in the circumstances of this case tilts in favour of the plaintiff/applicant who is in use and possession of the suit property pursuant to a contract of sale of the suit property signed between himself and the defendant/respondent.

15. Whilst the property sold has been described as Kabimoi/Chepnes plot No. 160 in the sale agreement, from the pleadings filed, it appears that the parties are in agreement that the property known as Kabimoi/Chepnes/160 and Lembus/Kabimoi/160 refer to one and the same property.

16. The upshot of the foregoing is that the application dated 23rd November 2023 has merit. Consequently, I allow it in terms of prayer (c) and (d).

17. The injunction, unless extended by the court, shall subsist for 12 months or until the hearing and determination of the suit, whichever shall come earlier as contemplated by Order 40 Rule 6 of the Civil Procedure Rules.

18. Orders accordingly.

Ruling delivered, dated and signed at Kabarnet this 21st day of May, 2024.

Ruling delivered virtually in presence of:
Mr. Masinde holding brief for Mr. Kipsamo for plaintiff /applicant
Mr. Kipkenei for the defendant/respondent
Court Asst.: Ian