Addah Nduta v Nellie Apartments Limited [2021] KEELC 1753 (KLR)
The bottom line
#A Kenyan buyer claiming a property purchase lost her injunction after failing to prove her deposit, but won protection from eviction only if she pays outstanding rent.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of a legal representative of deceased directors/shareholders to swear an affidavit for the company
Dennis Charles Njuguna, as legal representative of the deceased sole directors and shareholders, was competent to swear the replying affidavit on behalf of the Respondent
The Applicant sued the Respondent, a company with separate legal personality. However, it had no surviving directors or shareholders to act for it. Relying on Halsbury's Laws of England, title to a sole shareholder's shares devolves on his personal representative. The Applicant did not rebut the averment that Dennis Charles Njuguna was the legal representative of both deceased directors. The court expressed its view without determining the issue with finality.
Whether the Applicant established a prima facie case for a temporary injunction
The Applicant failed to establish a prima facie case with probability of success
The Applicant relied on a highly contested letter of offer to prove a purchase of the suit property. She produced no evidence of the alleged Kshs. 6 Million cash deposit, and none of the correspondence between the advocates mentioned it. The draft agreement for sale contemplated continued payment of rent pending transfer, and the Applicant did not deny ceasing rent payment in January 2019. The distress was therefore not shown to be illegal.
Irreparable harm and balance of convenience
Not considered because no prima facie case was established; the court nonetheless issued a conditional preservation order
Applying the sequential approach in Nguruman, once the Applicant failed at the first hurdle the court did not need to assess irreparable harm or balance of convenience. However, because the Applicant remained in possession and risked eviction and the property being sold to third parties pending trial, the court, in the interest of justice, granted a conditional injunction requiring payment of rent arrears or the purchase balance into a joint interest-earning account, failing which the injunction would stand discharged.
Legal principles established
#- A legal representative of the sole deceased shareholder-directors of a company that has no surviving directors may competently swear an affidavit on behalf of that company
- The three Giella conditions apply as distinct and sequential hurdles; where no prima facie case is established the court need not consider irreparable injury or balance of convenience
Court orders
#- 1.Pending the hearing and determination of the suit, the Respondent, its agents, employees, servants or any one of them restrained from interfering with the Applicant's occupation of and interest in Apartment Unit No. B6, Block B on L.R No. 330/317 by selling, offering for sale through public auction or private treaty, transferring, distressing for rent, or in any other manner whatsoever
- 2.The Applicant to pay all rent in arrears from February 2019 to 30th September 2021 at Kshs. 180,000/- per month into an interest-earning bank account in the joint names of the advocates on record within 60 days and to continue paying monthly rent of Kshs. 180,000/- from 1st October 2021 pending determination of the suit
- 3.In the alternative to order 2, the Applicant to pay into the joint interest-earning account Kshs. 26,000,000/- being the balance of the purchase price within 60 days pending determination of the suit
- 4.In default of compliance with paragraph 2 or alternatively 3, the injunction in paragraph 1 to stand discharged without further reference to the court
- 5.Costs of the application to be in the course
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over the suit property; application brought by Notice of Motion dated 16th September 2020
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Addah Nduta v Nellie Apartments Limited [2021] KEELC 1753 (KLR)", Case Analysis (2021). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1753/eng@2021-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.