1.By a Notice of Motion dated 20th January 2021, the Plaintiff moved the court seeking the following orders:
2.The application which is stated to have been brought under the provisions of Order 40 of the Civil Procedure Rules is premised on the grounds on the face of it and further supported by the Supporting Affidavit of the Plaintiff, Ndulu King’oo, deposed on the 20th April, 2023.
3.In summary, the Plaintiff’s case is that she is a bona fide purchaser and owner of the property known as Title Number DAGORETTI/KANGEMI/46(G) measuring 50x100 feet which she allegedly purchased on the 3rd December, 202018. The price was Kshs. 12,600,000/=. The Plaintiff paid a total of Kshs.11,600/- leaving an outstanding balance of Kshs.1,000,000/=.
4.Though the Plaintiff has been in possession of the suit property since execution of the Sale Agreement the Plaintiff avers that the Defendant has refused to transfer the property to her giving all sought of excuses as a delay tactic. At one point, the Plaintiff alleges that the Defendant even shared a fake mutation form alleging an existing sub-division by his deceased mother yet no such sub-division had taken place. The property was to be transferred to her within 180 days but that has not been done, 4 years later.
5.The Plaintiff accuses the Advocate who drafted the Sale Agreement of acting maliciously on the basis that it has turned out that the alleged property Dagoretti/Kangemi/46(G) does not exist yet the Advocate knowingly still went ahead and drafted a sale agreement and made her commit to it. She states that she has not been able to conduct a search on the title (if any) as the file at the land registry cannot be traced.
6.The court directed that the application to be served upon the Defendant/Respondent for interpartes hearing. Despite service, the Defendant did not file a response to this application. This application is therefore not opposed.
7.Having considered the application, the supporting affidavit and the annexures thereof, it is the court’s opinion that the only issue for determination is whether the court should grant the orders sought by the Plaintiff.
Analysis and Determination
8.I must begin by pointing out that despite the Plaintiff’s application being unopposed, the court has a responsibility to consider it on its merit.
9.It is clear from a look at the prayers sought by the Plaintiff that the Motion seeks final orders; in essence the same prayers sought in the plaint, that is to say, a permanent injunction, an order of Specific Performance and thirdly, an order of refund of the purchase price should the Defendant not transfer the suit property to the Plaintiff.
10.Order 40 of the Civil Procedure Rules makes provision for temporary injunctions and interlocutory orders. Would the Plaintiff’s application fall within the scope of Order 40 of the Civil Procedure Rules?
11.Limo J. in the case of Witmore Investment Limited vs County Government of Kirinyaga & 3 Others  eKLR held as follows: -
10.In regard to an order for a permanent injunction, the holding in the case of Kenya Power & Lighting Co. Limited v Sheriff Molana Habib  eKLR is instructive. The court held as follows:
13.This Court, applying the reasoning in the above cited cases and the provisions of Order 40 of the Civil Procedure Rules finds that the instant application is incurably defective. The Orders sought cannot at this stage be granted. The Plaintiff’s application does not surely fall within the scope of Order 40 of the Civil Procedure Rules. I accordingly dismiss the application but with no orders as to costs.
14.It is so ordered