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ELCDismissedNotice of Motion dated 25/7/2017 in the plaint dated 27/7/2017· [2018] KEELC 2766 (KLR)

Noor Abubakar v Gababa Enterprises Limited [2018] KEELC 2766 (KLR)

Environment and Land Court
28 June 2018
BEB M Eboso
1,054 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court refused to protect a land buyer because his sale agreement lacked a witness's signature, even though he had paid Kshs 22.5 million.

What this practically means

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Executive summary

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The plaintiff sued the defendant seeking specific performance and a permanent injunction over the sale of Unit No. 18 on LR Number 209/1025, South B, Nairobi, pursuant to an agreement dated 22/3/2016 for Kshs 25,000,000, of which he claimed to have paid Kshs 22,500,000. Together with the plaint he moved the court by Notice of Motion dated 25/7/2017 seeking interim orders restraining the defendant from disposing of the suit property pending trial. He annexed an undated, unattested agreement drawn by M/s Maina Njuguna and Associates and bank slips evidencing the payments. The defendant opposed through grounds of contention that the agreement was undated, unexecuted and unstamped, offending Section 3 of the Law of Contract Act, and that the application was abusive and founded on hearsay. The court identified a single issue: whether the application met the Giella v Cassman Brown criteria for an interim injunction. Holding that land sale contracts in Kenya are regulated by Section 3(3) of the Law of Contract Act, which requires a written contract signed by all parties with signatures attested by a witness, the court found the exhibited agreement undated and the purchaser's signature unattested. Though payment of Kshs 22,500,000 was demonstrated, a compliant contract is the key pillar of a prima facie case in specific performance claims. The application was therefore dismissed for lack of merit. The main suit remains pending; no costs order appears on the face of the ruling.

Key legal issues

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Whether the plaintiff established a prima facie case for an interim injunction in a claim for specific performance of a land sale contract

Holding

The application failed because the exhibited sale agreement was undated and the purchaser's signature unattested, offending Section 3(3) of the Law of Contract Act

Reasoning

The court applied the Giella v Cassman Brown criteria. Since land sale contracts must be in writing, signed by all parties and attested by a witness, the exhibited undated, unattested agreement could not found an action for specific performance. Payment of Kshs 22,500,000 alone did not establish a prima facie case without a compliant contract, so the interim injunction could not issue.

p. 2

Legal principles established

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  • Attestation of signatures is a mandatory statutory requirement for enforceability of land sale contracts under Section 3(3) of the Law of Contract Act
  • Evidence of a fully compliant contract is the key pillar of a prima facie case in a plea for specific performance of a land sale contract

Court orders

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  1. 1.The plaintiff's Notice of Motion dated 25/7/2017 is dismissed for lack of merit

Authorities

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Legislation

  • Law of Contract ActSection 3(3)
  • Auctioneers ActCap 526

Cases cited (1)

  • Giella V Cassman Brown
    (1973) EA 358
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land contracts and disputes; interim injunctive relief under civil procedure

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, "Noor Abubakar v Gababa Enterprises Limited [2018] KEELC 2766 (KLR)", Case Analysis (2018). Notice of Motion dated 25/7/2017 in the plaint dated 27/7/2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2766/eng@2018-06-28

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