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ELCPartially AllowedHigh Court Civil Case (Nairobi) – Notice of Motion dated 23rd April 2015 and Notice of Motion dated 30th July 2015· [2016] KEELC 719 (KLR)

Bathawab Investment Limited v Hassan Ahmed Abdulhafedh Aka Hassan Ahmed Zubedi & 3 others [2016] KEELC 719 (KLR)

High Court of Kenya
12 February 2016
6,462 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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A Nairobi investor who paid US$1.7 million towards a Nairobi property won protection: the High Court froze dealings on the title and sent its dispute with Dubai Bank Kenya to arbitration.

What this practically means

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Executive summary

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The Plaintiff brought two notices of motion seeking injunctions restraining the Defendants from dealing with LR No. 209/10350 Nairobi, preservation orders directed at the Commissioner of Lands and Registrar of Titles, and referral of the dispute with the 2nd Defendant to arbitration under the parties' agreements. The Plaintiff alleged it had agreed orally with the 1st, 2nd and 3rd Defendants to jointly purchase the suit property, paid US$1.7 million through the 1st and 2nd Defendants, but discovered the actual purchase price from the 4th Defendant was Kshs.254 million and that title was being pursued solely by the 2nd Defendant, Dubai Bank Kenya Limited. The 1st and 3rd Defendants raised preliminary objections, including non-compliance with Section 3(3) of the Law of Contract Act, misjoinder and non-existence of the Plaintiff; the 2nd and 4th Defendants filed replying affidavits denying the claims, the 4th Defendant asserting it was the registered and indefeasible proprietor with no privity of contract with the Plaintiff. The court applied Mukisa Biscuits and Oraro v Mbaja, found the objections were points of law but dismissed them: the 1st Defendant abandoned his by failing to file submissions, and the 3rd Defendant's objections required factual ascertainment beyond the pleadings. Applying Giella v Cassman Brown, the court found a prima facie case on the basis of the Investment Agreement of 23rd November 2012 and evidence of the US$1.7 million deposit, found irreparable loss likely, and held the balance of convenience favoured maintaining the status quo. The court restrained the 1st, 2nd and 3rd Defendants (not the 4th, for want of privity) from transferring, sub-dividing, charging, mortgaging or interfering with the property, allowed the arbitration reference prayer, and ordered costs in the cause.

Key legal issues

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01

Whether the notices raised valid preliminary objections

Holding

The issues raised were proper preliminary objections, but the 1st Defendant abandoned his by failing to file submissions, and the 3rd Defendant's objections failed because they required ascertainment of facts beyond the pleadings

Reasoning

Applying Mukisa Biscuits and Oraro v Mbaja, the court found the objections raised points of law. However, whether a written sale agreement existed and whether the Plaintiff was an existing entity required factual inquiry from sources outside the pleadings, disqualifying them as pure points of law. The 1st Defendant's objection was not argued and was treated as abandoned and unmerited.

p. 9
02

Whether the Plaintiff established a prima facie case with probability of success

Holding

Yes - the Investment Agreement dated 23rd November 2012 and evidence of payment of US$1,700,000 into the 2nd Defendant's bank showed a beneficial interest in the suit property

Reasoning

Though the arrangement with the 1st, 2nd and 3rd Defendants was not in writing and the Plaintiff could not be held a purchaser for value, the Investment Agreement between the Plaintiff and the 2nd Defendant evidenced a beneficial interest. Combined with proof of the deposit and evidence that Kshs.254,000,000 funded the purchase, a prima facie case with probability of success was established.

p. 10
03

Whether irreparable loss and balance of convenience favoured the injunction

Holding

Yes - the Plaintiff would likely suffer irreparable loss not compensable in damages, and the balance of convenience favoured maintaining the status quo

Reasoning

The 2nd Defendant was pursuing registration as sole proprietor pursuant to decisions in HCCC No. 172 of 2012 and JR Misc No. 406 of 2012, which would leave the Plaintiff, having paid US$1,700,000, out of the equation. There was no evidence the Defendants could refund the deposit. The court declined to overturn those decisions but preserved the status quo by restraining the 1st, 2nd and 3rd Defendants from dealing with the property.

p. 11

Legal principles established

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  • A preliminary objection must stem from the pleadings and be based on pure points of law with no facts to be ascertained
  • Where an objection requires ascertainment of facts beyond the pleadings, it is not a valid preliminary objection
  • A prima facie case means more than an arguable case - it must show an apparent infringement of a right calling for explanation or rebuttal

Court orders

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  1. 1.Preliminary objections by the 1st and 3rd Defendants dismissed
  2. 2.Interim injunction restraining the 1st, 2nd and 3rd Defendants (not the 4th Defendant) from transferring, sub-dividing, charging, mortgaging or in any manner interfering with or transacting with the suit premises LR No. 209/10350 Nairobi, so as to maintain the status quo even after implementation of the orders in HCCC No. 172 of 2012 and JR Misc No. 406 of 2012
  3. 3.Prayer No. 5 of the Notice of Motion dated 23rd April 2015 allowed - reference of the dispute as between the Plaintiff and the 2nd Defendant to arbitration
  4. 4.Costs in the cause

Authorities

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Legislation

  • Arbitration ActSection 7
  • Civil Procedure RulesOrder 5 Rule 17; Order 40 Rules 1, 2, 3(3) and 4
  • Civil Procedure ActSections 1A, 1B, 3A, 63(c) and (e)
  • Law of Contract Act, Cap 23Section 3(3)
  • Stamp Duty Act, Cap 480Section 19(2)

Cases cited (7)

  • Giella Vs Cassman Brown & Co. Ltd
    1973 EA 358
  • Oraro Vs Mbaya
    (2005) 1 KLR 141
  • Mukisa Biscuits Manufacturing Co. Ltd Vs West End Distributors Ltd
    (1969) EA 701
  • Avtar Singh Bhamra & Another VS Oriental Commercial Bank
    Kisumu High Court Civil Case No. 53 of 2004
  • Quick Enterprises Ltd vs Kenya Railways Corporation
    Kisumu High Court Civil Case No. 22 of 1999
  • CMC Motors Group Ltd and Another vs Evans Kangeche Boro
    Civil Appeal No. 295 of 2007
  • Mrao Ltd Vs First American Bank of Kenya and 2 Others
    (2003) KLR 125
Jurisdiction invoked
Sections 1A, 1B, 3A and 63(c) and (e) of the Civil Procedure Act; Section 7 of the Arbitration Act 2012; Order 40 Rules 1, 2, 3(3) and 4 of the Civil Procedure Rules 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Bathawab Investment Limited v Hassan Ahmed Abdulhafedh Aka Hassan Ahmed Zubedi & 3 others [2016] KEELC 719 (KLR)", Case Analysis (2016). High Court Civil Case (Nairobi) – Notice of Motion dated 23rd April 2015 and Notice of Motion dated 30th July 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/719/eng@2016-02-12

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