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ELCDismissedNot stated in the judgment· [2015] KEELC 798 (KLR)

Sabine Tanja Kusshauer v Nimrod Njueh Mate & another [2015] KEELC 798 (KLR)

Environment and Land Court
12 May 2015
MGMary M. Gitumbi
1,393 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan land buyer lost her injunction because she wrongly rejected a signed transfer on grounds that the witness advocate's practising certificate didn't matter.

What this practically means

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Executive summary

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The Plaintiff, Sabine Tanja Kusshauer, moved the court by Notice of Motion dated 18th February 2014 seeking a temporary injunction restraining the Defendants from transferring, charging, disposing of or interfering with Nairobi/Block 97/1675, and the appointment of a receiver pending hearing of the suit. She relied on a sale agreement of 1st July 2013 for Kshs. 15 million, a deposit of Kshs. 1.5 million paid on 10th July 2013, and alleged that a transfer executed on 27th September 2013 was invalid because the advocate attesting on the 2nd Defendant's part lacked a valid practising certificate. The Defendants opposed, asserting they had rescinded the agreement after due notice because the Plaintiff failed to complete, that damages would adequately compensate her, and that a caution she lodged protected the property. Applying Giella v Cassman Brown and defining a prima facie case per Mrao v First American Bank, the court held that the Plaintiff's entitlement to specific performance required readiness, ability and willingness to perform. Relying on section 3(3) of the Law of Contract Act and Sammy Some Kosgei v Grace Jelel Boit, the court found that attestation does not require an advocate holding a valid practising certificate; the transfer was valid and its rejection unjustified. The Plaintiff therefore failed to establish a prima facie case, and the court, citing Kenya Commercial Finance Co. Ltd v Afraha Education Society, declined to consider the remaining Giella conditions. The application was dismissed with costs in the cause.

Key legal issues

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01

Prima facie case for temporary injunction

Holding

The Plaintiff failed to establish a prima facie case because she was not entitled to specific performance

Reasoning

The Plaintiff's right to an injunction depended on her prima facie entitlement to specific performance, which required showing readiness, ability and willingness to complete. Her rejection of the transfer for want of a valid practising certificate in the attesting advocate was unjustified, as section 3(3) of the Law of Contract Act requires only attestation by a witness, not a qualified advocate. The transfer was therefore valid, defeating her prima facie case.

p. 3
02

Validity of attestation under section 3(3) of the Law of Contract Act

Holding

Attestation by a person without a valid practising certificate does not invalidate a land disposition contract or transfer

Reasoning

The court applied section 3(3) of the Law of Contract Act, which requires writing, execution and attestation, but does not require the attesting party to be an advocate with a valid practising certificate. Following Sammy Some Kosgei v Grace Jelel Boit, the witness need not be an advocate. The Plaintiff's objection to the transfer on this basis was therefore untenable.

p. 2

Legal principles established

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  • An applicant for an interlocutory injunction must first show a prima facie case with a probability of success; if that fails, the other conditions need not be considered
  • Section 3(3) of the Law of Contract Act does not require that a contract for disposition of land be attested by an advocate with a valid practising certificate; any witness suffices

Court orders

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  1. 1.The Notice of Motion dated 18th February 2014 is dismissed
  2. 2.Costs shall be in the cause

Authorities

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Legislation

  • Law of Contract ActSection 3(3)

Cases cited (5)

  • Giella versus Cassman Brown
    (1973) EA 358
  • Mrao versus First American Bank of Kenya Limited & 2 Others
    (2003) KLR 125
  • Gurdev Singh Birdi v. Marinder Singh Ghatora and Abubakar Hadhbuti
    Civil Appeal No. 165 of 1996
  • Sammy Some Kosgei vs Grace Jelel Boit
    [2013] e KLR
  • Kenya Commercial Finance Co. Ltd versus Afraha Education Society
    (2001) 1 EA 86
Jurisdiction invoked
Original civil jurisdiction (not expressly cited in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Sabine Tanja Kusshauer v Nimrod Njueh Mate & another [2015] KEELC 798 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/798/eng@2015-05-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.