Nancy Mwende Kang’ata v Kenol Kobil PLC [2019] KEELC 3941 (KLR)
The bottom line
#Kenya's Environment and Land Court refused Kenol Kobil an injunction because its lease was unregistered and it only claimed fixed damages.
What this practically means
#Executive summary
#Key legal issues
#Whether an injunction can issue where no substantive suit is pending
No; an interlocutory injunction presupposes a pending suit, and where the suit was commenced by a Miscellaneous Civil Application, nothing remains for determination after the ruling.
The court noted the suit was commenced by Notice of Motion, meaning no Plaint, Petition, Originating Summons or Counter-claim was pending. The injunctive relief was framed as pending the hearing of 'this suit' which did not exist. However, invoking Article 159(2)(d), the court allowed transfer of the lower court matter and treated the injunction application as one in that suit.
Whether the Lease signed by the parties created an interest in land
No; the unsigned-attestation lease can only amount to an Agreement for a Lease, enforceable inter partes, and offends Section 3(3) of the Law of Contract Act and Section 47 of the Registered Land Act.
Section 3(3) of the Law of Contract Act requires a contract for disposition of an interest in land to be in writing, signed by all parties and attested by a witness. Section 47 of the (repealed) Registered Land Act requires leases exceeding two years to be registered. Relying on Chon Jeuk Suk Kim and Garibi Limited, the court held the unregistered, unattested document could not create a legal or equitable estate in land.
Whether the Defendant established irreparable injury not compensable by damages
No; the Defendant's Counter-claim seeks only quantified damages of Kshs. 35,000,000 and does not seek specific performance or a permanent injunction.
Under the Giella v Cassman Brown principles, irreparable injury must be shown. The court observed the Defendant's Counter-claim prayed only for damages of Kshs. 35,000,000 and interest, not performance of the Lease or an order of permanent injunction. A claimant who quantifies its loss cannot simultaneously assert that damages are inadequate.
Legal principles established
#- An unregistered lease or agreement for lease cannot create an interest in land where registration is statutorily required; it is enforceable only inter partes.
- Where irreparable injury is compensable by a quantified damages claim, an injunction cannot issue.
Court orders
#- 1.The Chief Magistrate's Court Civil Case No. 22 of 2018 is transferred to this court
- 2.The prayer for injunction in the Notice of Motion dated 24th July, 2018 is dismissed
- 3.The Application dated 24th July, 2018 is dismissed with costs to the Plaintiff, save for the order transferring Machakos CMCC No. 22 of 2018
- Jurisdiction invoked
- Article 159(2)(d) of the Constitution invoked in directing transfer of Machakos CMCC No. 22 of 2018 to the Environment and Land Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nancy Mwende Kang’ata v Kenol Kobil PLC [2019] KEELC 3941 (KLR)", Case Analysis (2019). Miscellaneous Civil Application – Notice of Motion dated 24th July, 2018 (Environment and Land Court, Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3941/eng@2019-03-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.