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|Case Number:||Civil Case 2567 of 1977(2)|
|Parties:||Assanand v Pettitt (No 2)|
|Date Delivered:||03 May 1978|
|Court:||High Court at Nairobi (Milimani Law Courts)|
|Judge(s):||Leslie Gerald Eyre Harris|
|Citation:||Assanand v Pettitt (No 2)  eKLR|
Assanand v Pettitt (No 2)
High Court, at Nairobi
May 3, 1978
Civil Case No 2567 of 1977
Injunction - interlocutory injunction - principles the court will apply in considering an application for such injunction.
Contract - terms of contract - whether courts may supply terms to a contract - agreement for sale of premises - agreement stating that date of purchaser’s occupancy was to be agreed - purchaser suing for specific performance - whether court could supply the date of occupancy.
The plaintiff applied for an injunction restraining the defendant from dealing with or removing anything from certain leasehold premises.
The basis of the application was a suit for specific performance of an alleged agreement between the parties for the purchase of the premises.
The defendant’s defence stated that the alleged agreement did not amount to a binding contract and, further, that the plaintiff’s suit was premature because the defendant was entitled to remain in possession until a date for the delivery up of possession had been agreed between them.
1. The principles governing the granting of interlocutory injunctions are to be found in the judgment of Spry, VP in the case of EA Industries Ltd v Trufoods Ltd  EA 420.
2. An applicant has to show a prima facie case with a probability of success and if the court is in doubt it will decide the application on the balance of convenience. The injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which would not adequately be compensated by an award of damages.
3. Where parties have expressly agreed that the date for possession is itself to be agreed between them the court would not step in and supply it.
4. The plaintiff had not shown a prima facie case with a probability of success or that a refusal of the injunction would cause him irreparable injury which would not adequately be compensated by an award of damages.
EA Industries Ltd v Trufoods Ltd  EA 420
No statutes referred.
|Case Outcome:||Application dismissed.|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
CIVIL CASE NO 2567 OF 1977
May 3, 1978, Harris J delivered the following Order.
This is an application by the plaintiff for an injunction restraining the defendant, his servants or agents, from dealing with or alienating , whether by lease of twelve months or less or in any manner whatsoever certain leasehold premises in Nairobi, the subject matter of the suit, and also restraining them from removing from the said premises or dealing with or alienating certain articles of furniture in the premises.
In his plaint the plaintiff claims specific performance of an agreement dated 17th January 1977 between the parties relating to the premises damages for breach of contract and other relief.
The agreement is in the following terms:
“Heads of Agreement
“Sale of Mr R.W. Pettitt’s Residence Manyani Road East, Nairobi.
“It is agreed that Mr A. Assanand will purchase the above property, at a price of K£ 25,000.
“A deposit of K£ 2,500 becomes payable immediately upon the exchange of letters.
“Legal fees and other expenses to be dealt with on the customary basis as between Buyer and Seller.
“Occupancy date to be agreed”;
followed by the signatures of the parties.
The defence is to the effect that this document does not amount to a binding contract for sale, being merely an agreement to enter into an agreement, and that if there exists a binding contract for sale the suit is premature as the defendant is entitled to remain in possession until a date for delivery up of possession is agreed.
The principles governing the granting of interlocutory injunctions in this country are to be found in the judgment of Spry V.P in the Court of Appeal in EA Industries Ltd v Trufoods Ltd  EA 420, where at page 421 he said:
“There is, I think, no real difference of opinion as tothe law regarding interlocutory injunctions, although it may be expressed in different ways. A plaintiff has to show a prima facie case with a probability of success, and if the Court is in doubt it will decide the application on the balance of convenience. An interlocutory injunction will not normally be granted unless the applicant for it might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages.”
With this view the other members of the Court agreed.
I have carefully considered the submissions of Mr Khanna and the facts and authorities mentioned by him. I have also had regard to the fact that the heads of agreement do not fix a date for completion and that they provide that what is termed the “occupancy date” is itself to be agreed, presumably between the parties. I accept that where a date for completion is not stated the court may, in appropriate circumstances, supply it, but I know of no authority for the proposition that when the parties to such an agreement as we have here have expressely agreed that the date for possession is itself to be agreed between them the Court would step in and supply it. Counsel for the plaintiff conceded in argument that no “occupancy date” had been fixed either prior to or since the date of the agreement.
I express no view as to the ultimate outcome of this litigation but I am satisfied that the plaintiff has not shown a prima facie case with a probability of success. Furthermore I am not satisfied that he has shown that a refusal of the injunction sought would cause him to suffer irreparable injury which would not adequately be compensated by an award of damages.
The summons is therefore dismissed with costs.
May 3, 1978