Hollander Ned Security Services Limited v Jacqueline Wangui Hill & 2 others [2019] KEELC 1468 (KLR)
The bottom line
#A Kenyan court blocked the sale of Malindi apartments because a joint venture partner tried to sell property the agreement said couldn't be sold.
What this practically means
#Executive summary
#Key legal issues
#Prima facie case for interlocutory injunction based on a Joint Venture Agreement
The Plaintiff established a prima facie case; the 1st and 2nd Defendants breached Clause 3.02 of the Joint Venture Agreement by purporting to sell the subject property to the 3rd Defendant by a Sale Agreement dated 28th August 2017.
The Joint Venture Agreement expressly barred the 1st Party from conveying, transferring, charging or disposing of the Subject Property during its duration. The court found the sale agreement contravened that clause, and that the Plaintiff, having diligently placed a caveat before completion of the transfer, deserved protection from the 2nd Defendant's inequities.
Irreparable damage where damages are quantifiable
Although the Plaintiff claimed a specific sum, its entitlement under Clause 4.02 to 100% of all profits and allocations of the venture meant damages would not adequately compensate, justifying preservation orders.
The court held the Plaintiff's rights were directly threatened by the Defendants' acts. Because the Plaintiff stood to receive all profits of the venture and risked losing its ability to recoup its investment of Kshs 6,677,516, the invasion of its right was material and substantive, meeting the Nguruman test for urgent injunctive relief.
Authority of directors to bind the 2nd Defendant to the Joint Venture Agreement
The signatories of the Joint Venture Agreement were the listed directors of the 2nd Defendant and therefore had authority to transact on its behalf.
Annexture DMB5 showed that Ms Jacqueline Wangui Hill and Ms Grace Wanjiku Kirina, who executed the Joint Venture Agreement, were the listed directors of Mibo Ceramics Ltd with 450 and 50 shares respectively as at January 2013, rebutting the 3rd Defendant's contention that the agreement lacked validity or binding force.
Legal principles established
#- An applicant for an interlocutory injunction must demonstrate a prima facie case with a probability of success and irreparable damage; the party bearing the burden must show a clear and unmistakable right directly threatened by the act sought to be restrained.
Court orders
#- 1.An interim injunction pending the hearing and determination of the suit restraining the 1st, 2nd and 3rd Defendants, their employees, agents or persons purporting to derive authority from them, from selling, disposing of, transferring, alienating, pledging, trespassing upon or in any manner dealing with Plot No. 4805 (Original No. 1935/548), Plot No. 4806 (Original No. 1935/549), Plot No. 4807 (Original No. 1935/550) and Plot No. 4808 (Original No. 1935/551), Malindi, known as Ashok Apartments
- 2.An order of inhibition against the titles to the said properties pending the hearing and determination of the suit
- 3.Costs of the application to the Plaintiff
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over land in Malindi (interlocutory injunction application in an ongoing suit)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Omar v Abushir & 4 others[2023] KEELC 16640 (KLR)7 Mar 2023
Cite this brief
#Cite this brief
Caselaw, "Hollander Ned Security Services Limited v Jacqueline Wangui Hill & 2 others [2019] KEELC 1468 (KLR)", Case Analysis (2019). Notice of Motion dated 29th March 2019 (suit at Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1468/eng@2019-10-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.