[2002] KECA 157 (KLR)
The Court of Appeal held that the respondent had a good defence to the appellant's claim, as the existence of a letter of consent and the parties' long-standing conduct under the lease raised triable issues that could not be resolved summarily. The court found that the learned Judge was correct in declining to...
Source-derived case information.
- Citation
- [2002] KECA 157 (KLR)
- Parties
- Appellant: Ezra Odondi Opar; Respondent: Total Kenya Ltd
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 351 of 2000
- Procedural Posture
- Civil Appeal / Appeal From High Court Ruling Declining to Strike Out Defence and Counter Claim
- Outcome
- appeal dismissed with costs
- Judges
- RO Kwach, AB Shah
- Legal Topics
- Land Control Board Consent, Lease Agreements, Striking Out Pleadings, Equitable Estoppel
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ezra Odondi Opar
Appellant
Total Kenya Ltd
Respondent
Procedural Posture
Civil Appeal / Appeal From High Court Ruling Declining to Strike Out Defence and Counter Claim
Legal Issues
- 1 Whether the lease agreement was void and unenforceable for lack of valid Land Control Board consent.
- 2 Whether the defence and counter-claim should be struck out as frivolous, vexatious, and an abuse of process.
- 3 Whether the doctrine of equitable estoppel could be invoked by the respondent.
Ratio Decidendi
The Court of Appeal held that the respondent had a good defence to the appellant's claim, as the existence of a letter of consent and the parties' long-standing conduct under the lease raised triable issues that could not be resolved summarily. The court found that the learned Judge was correct in declining to strike out the defence and counter-claim, as the matters in dispute required a full trial with witnesses, including the District Officer and Land Registrar. The court also noted that the doctrine of equitable estoppel could potentially apply, given the appellant's acceptance of substantial rent payments without earlier objection to the lease's validity. Accordingly, the appeal was...
Court Disposition
appeal dismissed with costs
Orders
- The appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
23 paragraphs
IN THE COURT OF APPEAL AT KISUMU (CORAM: KWACH, TUNOI & SHAH, JJ.A.) CIVIL APPEAL NO. 351 OF 2000
BETWEEN
EZRA ODONDI OPAR.........................................APPELLANT
AND
TOTAL KENYA LTD...........................................RESPONDENT
JUDGMENT OF THE COURT
The appellant, EZRA ODONDI OPAR, is aggrieved by the ruling of Wambilyangah, J. made on 28th June, 2000 by which the learned Judge declined to strike out the defence and counter-claim on the ground that they were frivolous, vexatious and abuse of the process of the Court.
The facts underpinning this appeal are simple and may be briefly stated as follows. The parties executed a lease agreement in regard to the appellant's land known as CentralKarachuonyo/Konyango/1543 whereby the land was leased to the respondent company for the purposes of erecting and operating a petrol station with effect from 1st January, 1988, for a term of twenty (20) years. The main complaint by the appellant before the learned Judge was that the purported lease is void and unenforceable for lack of a valid Land Control Board consent allegedly it having been given outside the six months period limited by theLand Control Act Cap 302Laws oIfn Kheinsy a r.eserved ruling the learned Judge held that as there is a letter of consent which appears valid on its face and as the parties had for a very long time conducted themselves on the basis that the lease document was perfectly legal, the matter before him could not be thrashed out on the basis of summary application. He thought that the suit could only be resolved by calling of witnesses; and more particularly, the Kendu Bay District Officer and the Land Registrar. Moreover, the learned Judge surmised that the respondent could in fact invoke the doctine of equitable estoppel since the appellant had not questioned the invalidity of the lease document when he received Shs. 500,000/- from the respondent in the form of the lease rent and the appellant was apparently in the category of a party looking for a scapegoat in order to cause harm to the respondent.
The appellant through his counsel Mr. Wasunna urges us to find that the learned Judge misdirected himself in not granting the application and in not striking out the defence and the counter-claim. He contended that the consent, if any, was not valid and was not in terms of the application made to the Land Control Board and could not therefore have been valid for purposes of theLand Control Act.He further argued that the doctrine of equitable estoppel cannot be invoked in the particular circumstances of this case.
Looking at the substance of the matter as a whole it seems to us plain that in truth the respondent has a good defence to the claim lodged against it by the appellant. The defence raises several triable issues which can only be resolved through trial and calling of witnesses.
For these reasons we consider that the decision of the learned Judge was correct and this appeal is dismissed with costs.
Dated and delivered at Kisumu this 29th day of November, 2002.
R. O. KWACH
....................
JUDGE OF APPEAL
P. K. TUNOI
...................
JUDGE OF APPEAL
A. B. SHAH
..................
JUDGE OF APPEAL
I certify that this is a true copy of the original,
DEPUTY REGISTRAR