Maralink Tours & Photography Co. Ltd v Dawagi Investments Limited (Originating Summons 17 of 2021) [2022] KEELC 3392 (KLR)
The bottom line
#A Kenyan court ordered a land seller to refund a Kshs 2.6 million deposit plus legal fees after hiding a court case over the property.
What this practically means
#Executive summary
#Key legal issues
#Whether failure to annex an authority to swear the supporting affidavit fatally defective the suit
Preliminary objection dismissed; the defect was curable and the authority was filed by further affidavit before hearing
The objection raised a procedural technicality rather than a pure point of law under the Mukisa test. Order 19 Rule 7 permits the court to receive affidavits notwithstanding technical irregularity. Authorities establish that a corporate resolution may be filed any time before the suit is fixed for hearing, and it lies on the objecting party to prove lack of authority with evidence. The applicant filed the signed authority by further affidavit sworn October 22, 2021, curing the anomaly.
Whether the respondent breached the sale agreement dated April 21, 2021
The respondent breached clauses 20(f) and 20(h) warranties by failing to disclose the injunction and ownership dispute over the suit land
The suit property was subject to interim injunctive orders in Malindi ELC No. 20 of 2021, filed before the sale agreement, making completion impossible. The respondent's letter of July 27, 2017 to the National Land Commission showed it knew of ownership challenges (gazettement claim by the 'Shahs') yet warranted the property free from any challenge or litigation. The court declined to rewrite the contract and applied the agreed remedies for breach, awarding refund of deposit, legal fees, and agreed interest.
Legal principles established
#- Lack of authority to swear an affidavit for a corporate body is a curable procedural irregularity and not fatal if the authority is filed before hearing and determination of the suit
- The court cannot rewrite a contract whose express terms are clear; it must apply the agreed remedies for breach
Court orders
#- 1.Preliminary objection dismissed with costs to the applicant
- 2.Respondent to refund the applicant Kshs 2,600,000/- deposit
- 3.Respondent to pay Kshs 455,000/- legal fees incurred as a result of the sale agreement
- 4.Interest on both sums at the agreed 10% (3% above Central Bank rates)
- 5.Costs of the suit to the applicant
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution (Environment and Land Court, original jurisdiction over land contracts)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maralink Tours & Photography Co. Ltd v Dawagi Investments Limited (Originating Summons 17 of 2021) [2022] KEELC 3392 (KLR)", Case Analysis (2022). Originating Summons dated August 20, 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3392/eng@2022-05-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.