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ELCDismissedNotice of Motion dated 17th May 2015 (ELC suit, Nyahururu)· [2018] KEELC 998 (KLR)

In re Estate of Gitau Karia (Deceased) [2018] KEELC 998 (KLR)

Environment and Land Court
1 November 2018
MOM.C. Oundo
1,899 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to protect a claimed land buyer because there was no written, signed sale agreement.

What this practically means

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Executive summary

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The Applicant, administrator of the Estate of Gitau Karia (deceased), moved the Environment and Land Court at Nyahururu by Notice of Motion dated 17th May 2015 under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 Rule 2 and Order 51 Rule 1 of the Civil Procedure Rules, seeking interim injunctive and prohibitory orders restraining the Respondents, administrators of the Estate of Waweru Njoroge Gathungu (deceased), from dealing with land parcel Nyandarua/Lesirko/136 pending trial. He argued that the late Waweru had sold 19 acres to the late Gitau Karia, relying on proceedings in Nakuru High Court Succession Cause No. 400 of 1993, and contended the suit was not time-barred nor res judicata, the earlier Nakuru HCCC No. 258 of 2004 having been dismissed for want of prosecution. The Respondents opposed, asserting the claim was time-barred, res judicata, and that the alleged sale had been disallowed in the succession cause. The court applied the Giella v Cassman Brown test and, adopting Mrao v First American Bank, held that no prima facie case existed: the succession cause judgment did not establish that a sale occurred, and there was no written sale agreement complying with Section 3(3) of the Law of Contract Act, rendering the claim unsustainable. Because the Giella conditions are sequential, the court did not consider irreparable harm or balance of convenience. The application was dismissed with costs to the Respondents, and parties were directed to comply with Order 11 within 21 days for the hearing of the main suit.

Key legal issues

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Whether the Applicant established a prima facie case for interlocutory injunction

Holding

No prima facie case was established; the suit is unsustainable for non-compliance with Section 3(3) of the Law of Contract Act as there was no written, signed and attested sale agreement

Reasoning

The Applicant relied on a judgment in Nakuru High Court Succession Cause No. 400 of 1993, but the court found that the judge there had not made a finding that a sale occurred; the dictum merely indicated that a purchaser could pursue the legal representative in the ordinary way by filing a suit. There was no sale agreement in writing to support the alleged sale of 19 acres. A claim on a land disposition contract without a written, signed and attested agreement contravenes Section 3(3) of the Law of Contract Act, so the suit was not maintainable and no prima facie case existed.

p. 3

Legal principles established

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  • A suit founded on a contract for disposition of an interest in land must comply with Section 3(3) of the Law of Contract Act, requiring a written contract signed by all parties and attested by a witness
  • The Giella conditions for interlocutory injunction are sequential; failure of the first condition (prima facie case) disposes of the application
  • A prima facie case requires more than an arguable case - evidence of infringement of a right and probability of success at trial

Court orders

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  1. 1.The application dated 17th May 2015 is dismissed with costs to the Respondents
  2. 2.Parties to comply with the provisions of Order 11 of the Civil Procedure Code within the next 21 days for the hearing of the main suit

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 40 Rule 2; Order 51 Rule 1; Order 11
  • Law of Contract ActSection 3(3)

Cases cited (5)

  • Giella vs Cassman Brown & Company Ltd
    (1973) EA 358
  • Mrao v First American Bank
    (2003) KLR 125
  • Nguruma Ltd vs. Jan Bonde Nielson & 2 others
    Civil Appeal No 77 of 2012
  • Kenya Commercial Finance Co. Ltd vs Afraha Education Society
    (2001) IEA 86
  • Joseph Wambua Mulusya vs David Kitu & Another
    (2014) eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 40 Rule 2 and Order 51 Rule 1 of the Civil Procedure Rules

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, "In re Estate of Gitau Karia (Deceased) [2018] KEELC 998 (KLR)", Case Analysis (2018). Notice of Motion dated 17th May 2015 (ELC suit, Nyahururu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/998/eng@2018-11-01

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