Haggai O Tambo & 4 othes v Kesrect Ageny Limited & 4 others [2014] KEELC 213 (KLR)
The bottom line
#The Environment and Land Court in Malindi struck out a land claim against property owners because the buyers had no contract with them, only with the original seller.
What this practically means
#Executive summary
#Key legal issues
#Privity of contract in land sale agreements
The Plaintiffs cannot enforce agreements made with the 1st Defendant against the 2nd to 5th Defendants who were not parties to those agreements
The court found no written or oral agreement between the Plaintiffs and the 2nd to 5th Defendants regarding the suit property. Relying on the privity doctrine and its exceptions, it held the Plaintiffs did not fall within any exception and could only enforce the sale agreements against the 1st Defendant, from whom they could seek the land later transferred to him or a refund.
Whether sale agreements create an interest in land
A contract for sale of land creates no interest or charge upon land, especially where the seller was not the registered proprietor
The court noted there was no evidence that plot 141 Malindi or its subdivisions were ever registered in favour of the 1st Defendant, so he had no title to pass. Citing Openda v AHN, it held the sale agreements created no interest in land, and the Memorandum of Understanding with the beneficiaries could not assist the Plaintiffs.
Striking out suit for lack of cause of action
The suit as against the 2nd to 5th Defendants was struck out with costs
Having found no privity of contract and no registrable interest in the Plaintiffs as against the 2nd to 5th Defendants, the court concluded that neither a permanent injunction nor specific performance could lie against them, leaving the 1st Defendant as the only proper party to the claims.
Legal principles established
#- Only parties to a contract may enforce its terms; a third party cannot enforce them nor have burdens imposed on him
- Exceptions to privity of contract: contract made for the benefit of the third party, express right of enforcement, or intention to confer enforceable rights
- A contract for the sale of land does not create an interest in land
Court orders
#- 1.The Plaintiffs' suit as against the 2nd, 3rd, 4th and 5th Defendants is struck out
- 2.The Plaintiffs to pay to the 2nd, 3rd, 4th and 5th Defendants the costs of the suit and the Application
- Jurisdiction invoked
- not stated; original civil jurisdiction of the Environment and Land Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Haggai O Tambo & 4 othes v Kesrect Ageny Limited & 4 others [2014] KEELC 213 (KLR)", Case Analysis (2014). Malindi ELC Case (Plaint dated 4th April 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/213/eng@2014-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.