SBS Dunhil Group (East Africa) Limited v Shah & 4 others (Environment and Land Case Civil Suit E112 of 2023) [2024] KEELC 3752 (KLR)
The bottom line
#The Environment and Land Court refused to stop the eviction of tenants from Senteu Plaza because a board resolution promising a sale was never written into the lease.
What this practically means
#Executive summary
#Key legal issues
#Prima facie case for temporary injunction
No prima facie case was established; the alleged board resolution obliging the defendants to sell was never incorporated into the lease documents, which instead required vacant possession on expiry
The court examined the lease and leave/licence agreements and found no reference to the 12.6.2017 board resolution. The plaintiffs further admitted in their Further Affidavit that there was no offer to sell. Without a recognizable legal right, the Giella threshold was not met and the eviction injunction could not issue.
Irreparable injury and balance of convenience
The plaintiffs failed to prove irreparable injury not compensable in damages; the balance of convenience favoured the registered owners protected under Article 40
Alleged loss of goodwill and business was not evidenced, and relocation costs were not quantified. It is a serious matter to restrain a registered proprietor over his property absent justifiable grounds, particularly where the lease had expired by its own terms.
Setting aside the consent order of 20.12.2023
Although the plaintiffs did not meet the conditions for setting aside a consent order, the orders were set aside because they were anchored on a failed ADR process
The court found the application was motivated by inability to comply rather than any of the Total Kenya principles. However, since the consent arose within a spirit of exploring ADR which never materialised, the court declined to insist on compliance and set the orders aside.
Amendment and joinder of parties
Leave to amend granted only to the extent of joining the Land Registrar, against whom specific relief was sought; the advocate's firm was not joined as it acted as agent of a disclosed principal
Order 8 rule 3(1) permits amendments to determine real questions in controversy. But the intended 4th defendant merely executed documents as agent; absent any denunciation by the defendants of their participation in the lease, the agent could not be joined. The Land Registrar was joined as specific relief was sought against it.
Striking out the suit for want of cause of action
Although the cause of action was 'thin on substance', striking out was declined as a drastic summary remedy inappropriate where there are accusations and counter-accusations on payments
The court acknowledged that the plaintiffs admitted the lease expired and no offer to sell was made, giving no legal basis to hold onto the property. Nonetheless, striking out must be done in the clearest of cases, and disputed factual issues on payments and receipt warranted keeping the suit alive.
Legal principles established
#- Board minutes that were never incorporated into the executed lease or licence agreements do not create an enforceable obligation to sell, and cannot found a prima facie case for injunction
- A tenant cannot challenge the lease on the basis of fraud while simultaneously relying on an alleged agreement for sale anchored on that lease
- Striking out a suit is a summary remedy to be exercised in the clearest of cases with extreme caution
- No legal basis allows a tenant to acquire proprietary interest in a landlord's property by virtue of improvements made
Court orders
#- 1.The Application dated 9.10.2023 is dismissed in its entirety with costs to the defendants
- 2.The orders of 20.12.2023 are set aside
- 3.The Land Registrar is joined in these proceedings as the 4th defendant; the plaint is to be amended accordingly, to be filed and served within 30 days along with summons to enter appearance upon the new party, failing which the order allowing amendment shall lapse
- 4.The plaintiffs are condemned to pay costs of the application dated 18.1.2024 to the defendants
- 5.The application dated 10.11.2023 is disallowed with no orders as to costs
- Jurisdiction invoked
- Original jurisdiction under Article 162(2)(b) of the Constitution and the Environment and Land Court Act over disputes relating to land; interlocutory applications under the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mt Kenya Sun v Registered Trustees of the Agricultural Society of Kenya (Nairobi Branch) (Land Case E025 of 2024) [2025] KEELC 1008 (KLR)[2025] KEELC 1008 (KLR)5 Mar 2025applied
Cite this brief
#Cite this brief
Caselaw, "SBS Dunhil Group (East Africa) Limited v Shah & 4 others (Environment and Land Case Civil Suit E112 of 2023) [2024] KEELC 3752 (KLR)", Case Analysis (2024). Not stated in judgment (Environment & Land Court, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3752/eng@2024-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.