Stroutel Africa Limited v Savanah Land Developers Limited

apartments were built to completion, but the defendant did not pay the plainti its professional fees, and they also proceeded to illegally and unilaterally enter into a sale agreement with another party for the sale of the suit unit. He added that the plainti has so far paid to the defendant Ksh. 2,350,000. 4. The plainti therefore contends that they are the bonade purchasers of the suit unit, hence the injunctive orders sought are merited. 5. In their submissions dated 25.9.2024, the plainti has reiterated the averments set out in their application relying on various authorities including Nguruman v Jan Bonde Nielsen & 2 Others CA NP.77 of 2012 [2014] eKLR and Mrao Ltd v. First American Bank of Kenya Ltd [2003] eKLR to submit that they have established a prima-facie case with a probability of success, and that the injury suered is irreparable and continuous. 6. The defendant opposes the application vide the Replying Adavit of their director, one Peter Joseph Kimundi dated 30.8.2024. He admits that indeed the parties entered into a sale agreement of 1.7.2018, in which the plainti was to buy the suit unit at a cost of Ksh. 22 million. He contends that the applicant never paid the agreed amount as per the payment schedule and cumulatively, he only paid Ksh. 2.35 million. 7. That vide the addendum agreement, dated 15.6.2021, the amount of Ksh. 5,890,000 was agreed as the set o from plaintis professional services, plainti was given a discount of Ksh.610,000 and was required to pay the balance of the purchase price amounting to Ksh. 13 million by 15.7.2022. 8. That the plainti did not comply with the terms of the agreement, thus the defendant proceeded to sell the suit unit on 12.3.2024 to another person. 9. In their submissions dated 11.10.2024, the defendant has similarly reiterated the averments set out in its Replying Adavit and has relied on the case interalia; Nguruman and Mrao Nguruman v Jan Bonde Nielsen & 2 Others CA NP.77 of 2012 [2014] eKLR to dene the criteria in issuance of injunctive orders. 10. I have considered all the arguments raised herein. To grant or not to grant the injunctive orders sought by the plainti is the main issue for determination. 11. The protagonists have restated the correct position of the law in matters “issuance of injunctions”, that a claimant needs to show that they have a prima facie case with a probability of success for the courts to grant injunctive orders and that such a claimant must also establish that he would suer irreparable damage that will not likely be compensated by an award of damages. And in the event that the court is in doubt, it shall determine the case on a balance of convenience. These were the principles which were comprehensively set out in the case of Giella v Cassman Brown Co Ltd [1973] EA 358 and reinforced by the Court of Appeal in the case of Nguruman Limited versus Jan Bonde Nielsen & 2 others [2014] eKLR. 12. There is no controversy that the protagonists had entered into agreements in which the defendant was to sell the suit unit to the plainti at a cost of Ksh.22 million of which the plainti has so far paid Ksh.2,350,000. It is also not in dispute that the plainti was oering professional services in engineering to the defendant in the construction of the various apartments. And nally, it is quite apparent that the primary documents relied upon by both parties to buttress their rival arguments in the contract are the two sale agreements, the initial one of year 2018 and the addendum dated 15.6.2021. 13. Nowhere in the adavit of Nathan Njenga has the plainti given an account of their compliance with the two agreements. In particular, at paragraph 3 of his supporting adavit Njenga has simply https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13367/eng@2024-11-14 2

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made a general statement that “the balance of the purchase price was to be set o from the engineering professional services they were oering”. 14. As it were, the addendum agreement of 15.6.2021 contained specic clauses that the set o in respect of professional services oered by the plainti amounted to Ksh.5 890,000. Further the balance of ksh.13 million was to be paid in monthly instalments of ksh.1 million as from 15.7.2021. 15. None of the documents availed by the plaintis support the compliance with the addendum agreement particularly in terms of payments. The invoice availed by the plainti for Ksh. 10,752,000 as amount due to the plainti and being termed as a set o is a document dated 15.4.2024. However, this document is not anchored on any further agreement and it cannot therefore be construed as a variation of the agreement dated 15.6.2021. What more, this document was made a month after the suit unit was sold to another party in March 2024! 16. It has been held that courts cannot re-write contracts for parties and courts are also bound by what parties agreed to. The Court of Appeal in the case of Five Forty Aviation Limited v Erwan Lanoe [2019] eKLR cited in agreement the case of Pius Kimaiyo Langat versus Co-operative Bank of Kenya Ltd [2017] eKLR which stated that; “ We are alive to the hallowed legal maxim that it is not the business of Courts to rewrite contracts between parties. They are bound by the terms of their contracts, unless coercion, Fraud or undue inuence are pleaded and proved.” 17. If the protagonists arrived into other gures beyond Ksh. 5,890,000 as set o of the professional services oered by the plainti after the addendum agreement, then that is an issue which the court cannot wade into at this stage of the trial, there being no other agreement, post the addendum agreement of 15.6.2021. In the circumstances, I nd that the applicant has not established a prima facie case to warrant protection from the court. 18. In Paul Gitonga Wanjau v Gathuthi Tea Factory Company Ltd & 2 Others [2016] eKLR, the court held that; “ An injunction is an equitable remedy, meaning the court hearing the application has discretion in making a decision on whether or not to grant the application. The court will consider if it is fair and equitable to grant the injunction, taking all the relevant facts into consideration.” 19. In the case at hand, it has emerged that the property has since been sold, and it would be unjust for the third party to be entangled in the disputes between the plainti and the defendant herein. 20. In the end, I nd that the application is not merited, the same is hereby dismissed with costs to the defendant. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 14th DAY OF NOVEMBER 2024 THROUGH MICROSOFT TEAMS. LUCY N. MBUGUA JUDGE In the presence of: Odera for Plainti Awour for Defendant https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13367/eng@2024-11-14 3

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Court Assistant: Vena https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13367/eng@2024-11-14 4

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