Kenol Kobil Limited v David Mugo Ndumia, James Mwangi Ndumia, Julia Nyaguthi Ndumia & Mary Njambi Ndumia (Sued as the Administration and Legal Representatives of the Estate of Danson Ndumia Murukia (Deceased) & 2 others [2016] KEELC 840 (KLR)
The bottom line
#A Kenyan court refused to stop an oil company's eviction because its lease renewal notice was sent to the wrong estate administrators.
What this practically means
#Executive summary
#Key legal issues
#Whether the option to renew was properly exercised
On a preliminary assessment, the court doubted that the option was properly exercised because the renewal notice was sent to the original administrators whose administration had ceased, after the property had vested in the 2nd and 3rd defendants under a confirmed grant
The lease was executed by Jane Wairimu Ndumia and James Mwangi Ndumia as personal representatives. Before the 30 October 2012 renewal notice, James Mwangi Ndumia had died, new administrators had been enjoined, and on 20 July 2011 the confirmed grant vested the premises in the 2nd and 3rd defendants in equal shares. A notice addressed to persons no longer administering the estate, at the lease address, could not be good notice.
What rent was payable upon renewal - the schedule's continued 15% increases or rent to be agreed/referred to arbitration
Clause 4 of the lease is the substantive renewal clause; it provides for rent to be mutually agreed and, failing agreement, determination by a single arbitrator appointed by the Chairman of the Institute of Chartered Surveyors
The court found a conflict between the rent provisions in the body of the lease (continued 15% increases per an attached schedule) and Clause 4 (rent to be agreed or fixed by an arbitrator). It gave greater weight to Clause 4 as the substantive renewal clause, since the arbitration mechanism would serve no purpose if the 15% escalation was intended to continue.
Whether the plaintiff established a prima facie case for injunction
No prima facie case with a probability of success was established; the application was dismissed with costs
Applying Giella v Cassman Brown, the court made a preliminary assessment of the plaintiff's case. Given the doubts over the validity of the renewal notice and over the plaintiff's contention on rent, the plaintiff failed at the first limb and the injunction could not issue. The court stressed the finding was preliminary and a different finding could follow trial.
Legal principles established
#- The Giella v Cassman Brown principles govern interim injunctions: prima facie case with probability of success, irreparable loss, and balance of convenience if in doubt
- Where the administration of an estate has changed and the property has vested in new administrators under a confirmed grant, notice under the lease addressed to the former administrators at the lease address may not be good notice
Court orders
#- 1.The plaintiff's application for injunction is dismissed
- 2.Costs of the application awarded to the defendants
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to land; application brought under Order 40 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenol Kobil Limited v David Mugo Ndumia, James Mwangi Ndumia, Julia Nyaguthi Ndumia & Mary Njambi Ndumia (Sued as the Administration and Legal Representatives of the Estate of Danson Ndumia Murukia (Deceased) & 2 others [2016] KEELC 840 (KLR)", Case Analysis (2016). Not stated in judgment (suit commenced by plaint on 21 March 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/840/eng@2016-05-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.