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ELCDismissedNot stated in judgment (Notice of Motion dated 29th August 2018, arising from a main suit at Kericho)

Ruth Cherotich Elijah & another v Esther Cherotich Lang’at & 4 others [2020] KEELC 3944 (KLR)

Environment and Land Court of Kenya
23 January 2020
2,857 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kericho court refused to stop a bank from selling disputed land because the applicants alleged fraud without giving any specific details or offering compensation.

What this practically means

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Executive summary

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The applicants, as legal representatives of the estate of the late Elijah Kipkurui Cheruiyot, moved the Environment and Land Court at Kericho by Notice of Motion dated 29th August 2018 seeking an interim injunction restraining Letshego Kenya Limited (the 5th respondent) from selling or dealing with land parcel KERICHO/KABARTEGAN/1394 pending determination of their suit. They alleged that the 1st respondent fraudulently transferred the original parcel No. 340 to herself without proper succession and subdivided it, and that parcel 1394 was charged to the 5th respondent to secure a loan of Kshs 5,000,000 advanced to the 2nd respondent, now in default. The 1st and 2nd respondents denied fraud, asserting the 1st respondent obtained valid grants of administration and transmitted the land from her late husband. The 5th respondent asserted due diligence and defaulted arrears of Kshs 3,415,018.70. Applying the Giela v Cassman Brown test, the court found no prima facie case: the fraud particulars were not pleaded as required by Order 10 Rule 2(a), the succession papers suggested a valid grant, and the prayers for nullification of the subdivision were logically flawed. Irreparable harm was not shown as damages would suffice; the balance of convenience favoured the 5th respondent, who was not implicated in any fraud and conducted due diligence. The court also noted the absence of an undertaking in damages and the belatedness of the application. The motion was dismissed with costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicants have established a prima facie case with a probability of success warranting an interlocutory injunction
  2. 2.Whether the applicants would suffer irreparable harm not compensable by damages
  3. 3.Where the balance of convenience lies
  4. 4.Whether the absence of an undertaking in damages and the belatedness of the application disqualify the applicants from injunctive relief

Key legal issues

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01

Prima facie case

Holding

Not established - the applicants' fraud allegations lack particulars and the succession papers availed suggest the 1st respondent possibly obtained a valid grant.

Reasoning

The applicants' case rests on fraud but contains no particulars, contrary to Order 10 Rule 2(a) of the Civil Procedure Rules. The 1st respondent produced succession papers bearing the same cause number showing she possibly lawfully obtained a grant and transmitted the land from her late husband. The prayers on nullification of the subdivision were also internally flawed, indicating weak prospects of success.

p. 3
02

Irreparable harm

Holding

Not established - the land's value is quantifiable and the applicants can be compensated in damages.

Reasoning

The value of the land can be assessed monetarily; the applicants do not live on the land and cannot claim sentimental attachment. Green cards showed the land had been charged to various banks before, showing eligibility for such sale. Damages are therefore an adequate remedy.

p. 4
03

Balance of convenience

Holding

It tilts in favour of the 5th respondent, which conducted due diligence and was not implicated in the alleged fraud.

Reasoning

No allegation of fraud is directed at the 5th respondent, yet the restraining order targets only that party, which would bear the brunt of consequences for wrongs not committed by it. The 5th respondent conducted due diligence before advancing the loan and risks losing money advanced.

p. 4
04

Undertaking in damages

Holding

The applicants gave no undertaking to pay damages, which disqualifies them from an injunction.

Reasoning

The applicants came late to interfere with an existing arrangement between other parties without offering compensation if they fail. Following Gati v Barclays Bank, an injunction cannot issue without an undertaking; given the sums involved the court would insist on proof of the applicants' means to pay damages.

p. 3

Legal principles established

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  • An undertaking to pay damages is a criterion for granting an injunction; where none is given, an injunction cannot issue.
  • Fraud must be pleaded with particulars and the registered owner must be shown to be complicit to displace the protections of Section 26(1) of the Land Registration Act.
  • Prima facie, an injunction is not granted where damages are an adequate remedy.
  • Particulars of fraud are a mandatory requirement in pleading fraud.

Court orders

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  1. 1.The Notice of Motion dated 29th August 2018 is dismissed with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Section 26 of the Land Registration Act; Order 37 Rule 8 and Order 51 Rule 1 of the Civil Procedure Rules

Relief refused

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Injunction restraining the 5th respondent from disposing of, alienating, selling or dealing with land known as KERICHO/KABARTEGAN/1394 pending hearing and determination of the suit

No prima facie case with probability of success; harm is compensable in damages; no undertaking in damages given; balance of convenience favours the 5th respondent; no fraud attributed to the 5th respondent

p. 4

Costs of the application

Application dismissed with costs against the applicants

p. 4

Costs

The application is dismissed with costs (to the respondents).

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The upshot, when all is considered, is that the application under consideration has no merits. I therefore dismiss it with costs.
p. 4Final orders - dismissal of the application
I cannot therefore say that a prima facie case is established.
p. 3Prima facie case
prima facie, you don’t grant an injunction where damages are an adequate remedy.
p. 4Adequacy of damages
It would be wrong in my view to make the 5th respondent carry the cross of others.
p. 3Injunction against a party not implicated in the alleged wrong
In GATI VS BARCLAYS BANK (K) LTD (2001) KLR 525, the court held, interalia, that an undertaking to pay damages is one of the criteria for granting an injunction and where none has been given an injunction cannot issue.
p. 3Undertaking in damages as a prerequisite to injunction

Issues in the judgment

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minor

The case number of the main suit is not stated anywhere in the judgment, only the date of the Notice of Motion.

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, "Ruth Cherotich Elijah & another v Esther Cherotich Lang’at & 4 others [2020] KEELC 3944 (KLR)", Case Analysis (2020). Not stated in judgment (Notice of Motion dated 29th August 2018, arising from a main suit at Kericho). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3944/eng@2020-01-23

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