|Civil Case 525 of 2010
|SIMON NJOROGE MUTURI v AMOS KABUE MWANGI & MARY NGIMA MUNYU
|25 Mar 2011
|High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)
|SIMON NJOROGE MUTURI v AMOS KABUE MWANGI & Another  eKLR
|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
IN THE HIGH COURT OF KENYA
COMMERCIAL & TAX DIVISION – MILIMANI
Opposing the application, Amos Kabue Mwangi, the 1st Respondent, filed a replying affidavit sworn on 13th August, 2010. He admits in that affidavit, inter alia, the sale agreement dated 24th March, 2009; and also the payment of a deposit of Kshs 3 million. After payment of the said deposit, the Vendors proceeded with the subdivision process. However, he blames the Plaintiff for frustrating the process by declining to give any more money to the Respondents to pay the Nairobi City Council for the issue of final approval to subdivide, and also to facilitate the clearance of arrears in the Housing Finance Company of Kenya. Arising from that inability to get more funds from the Applicant, the Respondents identified an alternative buyer who was willing to help them salvage the whole property and who has since paid the agreed purchase price, taken possession and commenced construction work. In the context of all these, the Respondents are not in a position to give the Applicant vacant possession, but they are ready and willing to refund the deposit to the Plaintiff.
With regard to the grant of an interlocutory injunction, the bottom line is whether the applicant has satisfied the conditions espoused in GIELLA v CASSMAN BROWN & CO., LTD  EA 358. The first of these conditions is that the Applicant must show a prima facie case with a probability of success. I find it prudent to discuss this particular condition along with the issue of specific performance.
While the Respondents acknowledged the agreement of sale of the property to the Applicant, the first problem to be encountered while considering specific performance is that although the parties had specifically agreed that the completion date would be ninety (90) days from the execution of the agreement, it is now exactly one year after the date of execution of the agreement, and the transaction has not been completed. Indeed, the prospects of that completion are fairly remote. The Respondents have already accepted money by way of purchase from a third party whom they have already installed into possession of the suit property. That person has also commenced construction work on the suit premises. There is no evidence to suggest that such party is not an innocent purchaser for value without notice. He is also not a party to these proceedings. In such circumstances, the path to the grant of an order for specific performance is not as plain as should be. I find that the first condition in GIELLA’S CASE has not been satisfied.
Thirdly, if I was in any doubt, I would find that the balance of convenience favours that the matters remain as they are, otherwise we might stir the hornet’s nest by interfering with a purchaser who is currently in possession of the suit premises and who, probably, is an innocent purchaser for value without notice.