Kenneth Gitunda Kamau v Lucas Owiti & 2 others [2014] KEELC 367 (KLR)

The court noted evidence of two companies named Vros Produce Limited with different certificates of incorporation and different directors claiming the suit property. The 3rd Defendant admitted acting for Vros Produce Limited but did not clarify which one. Given the serious allegations of fraud against an advocate, including receiving the deposit, the question of whether he was agent of a known principal could only be resolved after a full hearing, not on pleadings alone.

Section 3(3) requires signed, attested agreements before a suit for specific performance of a land contract may be filed. The Plaintiff is not seeking to enforce the impugned sale agreement but a refund of Kshs. 2,050,000 deposited with the 3rd Defendant. The 3rd Defendant must explain in his Defence to whom the deposit was paid and why the transaction fell through. The provision therefore does not bar the suit at this interlocutory stage.

Although the Plaintiff's counsel submitted that evidence is not receivable under Order 2 Rule 15(1)(a) and the court should look only at the Plaint, the court examined the supporting and replying affidavits, practicing certificates, resolutions and certificates of incorporation. It held that only after a Defence is filed can the court ascertain whether the Plaintiff has a cause of action against the Applicant, who may then be added or substituted under Order 1 Rule 10.