Siani Ltd & 2 others v Ghalib Alwiy & 2 others [2016] KEELC 1150 (KLR)
The bottom line
#A Lamu seller who tried to back out of a written restaurant sale lost the property, must pay Kshs.50,000 monthly occupancy charges, and cover the buyers' legal costs.
What this practically means
#Executive summary
#Key legal issues
#Location of “Talking Trees” restaurant relative to plot Lamu/Block IV/113
Neither party proved the restaurant lies within plot 113; the initial banda was built on a public beach, and whether the later permanent structure encroached could not be ascertained for lack of survey evidence.
The Plaintiffs claimed the structures stood on the periphery of plot 113 but called no surveyor to produce survey plans showing the boundaries. The 1st Defendant's allocation letter (DEXB3) permitted only a temporary watchman's shed on the public beach near plots 12 and 13, expressly forbidding encroachment on neighbouring plots including Siani. The court therefore found the initial structure was on a public beach, and the encroachment question could not be determined.
Existence and terms of the written sale agreements
The 1st Defendant signed the agreements of 28th September 2006 and March/April 2007 selling the “Talking Trees” structures for USD10,300, and was paid the agreed sum.
The 1st Defendant's own bank statement showed USD10,350 credited on 29th September 2006, matching the agreement. The court found it improbable that such a payment would have been made without a written agreement. The advocate witness (PW2) credibly testified to witnessing the second signing on 25th April 2007, which merely reiterated the first agreement.
Any oral agreement for USD20,000 plus a Land Rover
Any oral agreement was overtaken by the written agreements by operation of the parol evidence rule; the Land Rover was not part of the written agreements.
The 1st Defendant alleged a verbal agreement for USD20,000 plus a roadworthy Land Rover valued at Kshs.750,000. The court held that where parties reduce their agreement to a single final writing, extrinsic evidence of prior terms cannot contradict it. The Land Rover was treated as a gift for campaigns and was never returned.
Damages and mesne profits
Special damages for damage to the building were not proved and were refused; mesne profits of Kshs.50,000 per month from filing of the suit until payment in full were awarded, the valuer's unchallenged evidence being accepted.
The valuers' reports of 14th July 2011 and 15th May 2015 did not show the alleged damage or that it was caused by the 1st Defendant; photographs suggested neglect rather than deliberate damage. However, having sold the property, the 1st Defendant had no right to re-enter in 2011, and his unchallenged evidence put the monthly rental at Kshs.50,000.
Lack of board resolution authorising the suit (locus standi)
The issue was never pleaded in the Defence and the court declined to consider it.
The Defendants argued that no resolutions authorised PW1 to institute the suit on behalf of the corporate Plaintiffs. The court noted the point was not raised in the Defence and therefore refused to entertain it at the submission stage.
Legal principles established
#- When contracting parties have reduced their agreement to a single and final writing, extrinsic evidence of past agreements or terms cannot be considered when interpreting the agreement (the parol evidence rule).
- A party who sold the structures and received the agreed purchase price has no right to re-enter the property and is liable in mesne profits from re-entry.
Court orders
#- 1.A permanent injunction restraining the Defendants and their employees, servants and/or agents from entering, remaining and/or taking possession of the beach banda known as “Talking Trees”
- 2.A mandatory injunction ordering the Defendants, their employees, servants and/or agents to forthwith vacate and handover the beach banda known as “Talking Trees” to the Plaintiffs
- 3.The 1st Defendant to pay to the Plaintiffs mesne profits at the rate of Kshs.50,000 per month from the date of filing the suit until payment in full
- 4.The 1st Defendant to pay the Plaintiffs the costs of the suit
- 5.The Plaint filed by Ghalib Ahmed Alwiy in ELC No. 149 of 2010 dismissed with costs
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over land disputes (not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Siani Ltd & 2 others v Ghalib Alwiy & 2 others [2016] KEELC 1150 (KLR)", Case Analysis (2016). ELC Case No. 49 of 2011 (consolidated with Malindi ELC No. 149 of 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1150/eng@2016-02-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.