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ELCStruck OutNot stated in the judgment provided· [2017] KEELC 384 (KLR)

Vimemag Enterprises Ltd v Airport View Housing Ltd & 4 others [2017] KEELC 384 (KLR)

Environment and Land Court
29 November 2017
KBK. BOR
820 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a land claim because the sale agreement was unsigned and covered company shares, not land.

What this practically means

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Executive summary

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The 1st Defendant raised a preliminary objection seeking the striking out of the Plaintiff's suit on the grounds that no contract existed between the Plaintiff and the 1st Defendant capable of founding a cause of action, and that the court lacked jurisdiction by virtue of Section 3(3) of the Law of Contract Act and Section 38(1) of the Land Act, which require that a contract for the disposition of an interest in land be in writing and signed by all parties. The 1st Defendant contended that the documents attached to the Plaintiff's supporting affidavit were unexecuted and thus did not amount to a contract for the disposition of an interest in land. The Plaintiff opposed the objection, asserting compliance with Section 38 of the Land Act, that the sale agreement was executed on 1/10/2014, and that the 1st Defendant did not deny offering L.R. No. 209/12848 for purchase at Kshs. 140 million. The 1st Defendant relied on the David Muigai Nganga and Daniel Mwangi authorities on the mandatory nature of the writing requirements, and further argued there was no privity of contract, the draft agreement being between named vendors and purchasers of shares in the 1st Defendant company rather than a sale of the suit property. On examining the documents, the court found the sale agreement dated 2014 unexecuted and one for the sale of shares in the 1st Defendant rather than of land. It agreed the Plaintiff had not complied with Section 38 of the Land Act, upheld the preliminary objection, struck out the suit and awarded costs to the 1st and 2nd Defendants. Judgment was delivered at Nairobi on 29th November 2017 by K. Bor, Judge.

Key legal issues

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01

Compliance with Section 38(1) of the Land Act and Section 3(3) of the Law of Contract Act

Holding

The court upheld the preliminary objection, finding that the unexecuted sale agreement could not found a suit for the disposition of an interest in land

Reasoning

The court examined the documents filed in support of the application for injunction and found the sale agreement dated 2014 was not executed and no seal was affixed to it. It also found that the agreement was between named vendors and purchasers of shares in the 1st Defendant company, so the 1st Defendant was not a party and there was no privity of contract with the Plaintiff. Compliance with the writing and signature requirements being mandatory, the suit was incompetent.

p. 2
02

Nature of the agreement - sale of land or sale of shares

Holding

The agreement was one for the sale of shares in the 1st Defendant, not for the sale of the suit property, and the 1st Defendant was not a party to it

Reasoning

The court noted the agreement was between Harbans Singh Amrit, Kamal Prakash Amrit and Mandip Sigh Amrit as vendors and Winnie Atieno Ochieng and Byron Ochieng Okello as purchasers of shares in Airport View Housing Limited, the 1st Defendant. Since the 1st Defendant was not a party to that agreement, there was no privity of contract between it and the Plaintiff capable of supporting specific performance.

p. 2

Legal principles established

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  • No suit shall be brought upon a contract for the disposition of an interest in land unless the contract is in writing and signed by all the parties
  • A suit founded on an unexecuted agreement for the disposition of an interest in land is incompetent and liable to be struck out on preliminary objection

Court orders

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  1. 1.Preliminary objection upheld
  2. 2.Suit struck out
  3. 3.Costs of the suit awarded to the 1st and 2nd Defendants

Authorities

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Legislation

  • Law of Contract ActSection 3(3)
  • Land ActSection 38(1)

Cases cited (2)

  • David Muigai Nganga V. Embakasi Ranching Ltd and Another
    (2015) eKLR
  • Daniel Mwangi and 6 others V. Sayani Investment Limited and 3 Others
    [2015] eKLR
Jurisdiction invoked
Statutory jurisdiction of the Environment and Land Court; challenge under Section 3(3) of the Law of Contract Act and Section 38(1) of the Land Act

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, "Vimemag Enterprises Ltd v Airport View Housing Ltd & 4 others [2017] KEELC 384 (KLR)", Case Analysis (2017). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/384/eng@2017-11-29

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