Kitonga & 2 others v Hashtag Biz Hub Company Ltd (Environment and Land Appeal 67 of 2019) [2024] KEELC 1598 (KLR)
The bottom line
#Kenya's Environment and Land Court threw out an injunction because the land sale agreement wasn't signed before a witness, making it unenforceable.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction premised on enforceability of the contract under Section 3(3) of the Law of Contract Act
The sale agreement was not attested by a witness as required by Section 3(3), rendering it prima facie unenforceable, which undermined the foundation of the Respondent's suit
The court examined the sale agreement annexed and found that neither the Respondent's Directors' signatures nor the 1st and 2nd Appellants' signatures were attested by a witness. Since a contract for the disposition of an interest in land must satisfy the statutory formalities, the agreement was prima facie unenforceable, and specific performance/injunctive relief founded upon it could not stand.
Prima facie case, irreparable injury and balance of convenience
The Respondent failed to demonstrate a prima facie case with likelihood of success or irreparable loss, and the balance of convenience favoured the Appellants, who had leased the property to the 3rd Appellant
The Respondent admitted paying only KShs 5.5 million out of a KShs 6 million deposit and never paid the balance of the purchase price; the contract therefore remained incomplete. The Respondent also admitted the 3rd Appellant was in occupation as tenant of the 1st and 2nd Appellants at the time of the application, making the prohibitive orders inappropriate.
Standard of review on first appeal
The Court was entitled to re-evaluate the evidence afresh and draw its own conclusions while giving due allowance to the trial court's advantage
Relying on Selle & Another v Associated Motor Boat Co. Ltd and China Zhongxing Construction Company Ltd v Ann Akuru Sophia, the Court restated that a first appeal is by way of retrial: the appellate court must reconsider and re-evaluate the evidence on record, draw its own conclusions, and not disturb findings merely because it would have reached different results.
Legal principles established
#- Specific performance and related equitable relief rest on the existence of a valid enforceable contract; a contract failing formal requirements cannot sustain an injunction
- A first appellate court must reconsider and re-evaluate the evidence and draw its own conclusions, while making due allowance for the trial court's advantage of seeing and hearing witnesses
Court orders
#- 1.The Ruling and orders of the Honourable Magistrate delivered on 11th September 2019 be and are hereby set aside.
- 2.The application dated 27th June, 2019 in CMCC No. 4665 of 2019 is hereby dismissed with costs.
- 3.The Respondent to pay the costs of this Appeal.
- On appeal from
- Chief Magistrate's Court, Milimani
- CMCC No. 4665 of 2019
- Jurisdiction invoked
- First appellate jurisdiction over the Chief Magistrate's Court ruling
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kitonga & 2 others v Hashtag Biz Hub Company Ltd (Environment and Land Appeal 67 of 2019) [2024] KEELC 1598 (KLR)", Case Analysis (2024). Appeal from Milimani CMCC No. 4665 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1598/eng@2024-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.