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ELCDismissedNot stated in judgment (notice of motion dated 17th January 2017 within the main suit)· [2019] KEELC 3054 (KLR)

Ronald Kenyansa Nyamosi v National Social Security Fund & another [2019] KEELC 3054 (KLR)

High Court of Kenya (court not expressly named in the judgment extract)
7 May 2019
1,507 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Nairobi property buyer failed to stop eviction because his purchase agreement wasn't in writing and signed as Kenyan law requires.

What this practically means

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Executive summary

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The plaintiff, Ronald Nyamosi, moved the court by notice of motion dated 17th January 2017 under Section 3A of the Civil Procedure Act and Order 40 Rules 1, 3(1) and Order 52 Rule 4(1) of the Civil Procedure Rules, seeking a temporary injunction restraining the 1st defendant from harassing, locking doors, repossessing or claiming interest in LR No. Nairobi/Block 140/189/062, and an order directing the 2nd defendant to produce a cash account for the purchase of the property. The plaintiff claimed to be the registered owner, having bought the property for Kshs.5,500,000 and to have been issued a title after the 1st defendant executed transfer forms. The 1st defendant opposed, asserting it sold the property to Fredrick M. Oeri who requested transfer to Joan Yatich Kilele; it was not privy to the agreement between the plaintiff and Joan Yatich Kilele, and no consent to any sale by her existed. The 2nd defendant argued the cash-account prayer was procedurally defective under Order 52 rule 4(2) and that no cause of action lay against it. The court framed three issues: the injunction threshold, the propriety of the cash-account prayer, and costs. Applying Giella vs Cassman Brown and Mrao Ltd, the court found no written and signed agreement between the plaintiff and the 1st defendant as required by Section 3(3) of the Law of Contract Act, hence no prima facie case; nor irreparable loss, since the consideration was ascertainable. The cash-account prayer, brought by notice of motion contrary to the mandatory Order 52 rule 4(2), was dismissed. The entire application was dismissed, with costs to abide the outcome of the main suit.

Key legal issues

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01

Whether the plaintiff established a prima facie case with a probability of success

Holding

He did not; there was no written agreement between the plaintiff and the 1st defendant as required by Section 3(3) of the Law of Contract Act, and the 1st defendant was not privy to the plaintiff's agreement with the vendor Joan Yatich Kilele

Reasoning

The court applied Giella vs Cassman Brown and Mrao Ltd. The plaintiff's agreement (annexure RN1) was with Joan Yatich Kilele, to whom the purchase price was paid. The 1st defendant was not party to that agreement and there was no written and signed agreement between the 1st defendant and the plaintiff as required by Section 3(3) of the Law of Contract Act. Accordingly the transfer signed by the 1st defendant could not be lawful without an agreement and consideration, and no prima facie case was established.

p. 3
02

Whether irreparable loss was demonstrated

Holding

No; the consideration paid to the vendor was ascertainable and damages would suffice

Reasoning

The court found that the plaintiff's case was that the consideration was paid to the vendor Joan Yatich Kilele and that the amount could be ascertained. Damages would therefore adequately compensate him, failing the second Giella limb.

p. 3
03

Whether the prayer for production of cash account by the 2nd defendant was properly before the court

Holding

No; Order 52 rule 4(2) requires such application by originating summons supported by affidavit and served on the advocate; a notice of motion is contrary to the rules

Reasoning

Order 52 rule 4(2) of the Civil Procedure Rules is worded in mandatory terms. The plaintiff brought the application by notice of motion, contrary to the provision. The court held that rules are not made in vain and must be adhered to, and dismissed that prayer. The 2nd defendant had also argued there was no cause of action against it, the 1st defendant never having sought any balance of purchase price.

p. 3

Legal principles established

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  • An applicant for an injunction must make full and frank disclosure and show a legal or equitable right requiring protection
  • Agreements for sale of immovable property must be in writing and signed by the parties under Section 3(3) of the Law of Contract Act
  • Applications under Order 52 rule 4(2) must be brought by originating summons; rules must be adhered to

Court orders

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  1. 1.The notice of motion dated 17th January 2017 is dismissed in its entirety
  2. 2.Costs to abide the outcome of the main suit

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 40 Rules 1 and 3(1); Order 52 Rules 4(1)(a),(b),(c) and 4(2)
  • Law of Contract Act (Cap 23 Laws of Kenya)Section 3(3)

Cases cited (5)

  • Mrao Ltd vs First American Bank of Kenya Ltd & 2 Others
    [2003] KLR 125
  • Giella vs Cassman Brown & Co. Ltd
    [1973] EA 358
  • Naftali Ruthi Kinyua vs Patrick Thuita Gachure & Another
    [2015] eKLR
  • Kimaiyo Chemor & Another vs Joseph Kipkoech Chemor
    (2013) eKLR
  • Kenleb Cons Ltd vs New Gatitu Services Station Ltd & Another
    [1990] KLR 557
Jurisdiction invoked
Inherent power under Section 3A of the Civil Procedure Act and Order 40 Rules 1, 3(1) and Order 52 Rule 4(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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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, "Ronald Kenyansa Nyamosi v National Social Security Fund & another [2019] KEELC 3054 (KLR)", Case Analysis (2019). Not stated in judgment (notice of motion dated 17th January 2017 within the main suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3054/eng@2019-05-07

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