[2014] KEELC 516 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

ENVIRONMENT AND LAND DIVISION

ELC. NO. 1541 OF 2013

JAMES WAITHAKA CHEGE……………………………...…PLAINTIFF

VERSUS

THE 410 BRIDGE INTERNATIONAL…………………..DEFENDANT

RULING

Coming before me for determination is the Notice of Motion dated 19th December 2013 in which the Plaintiff/Applicant is seeking for orders of a temporary injunction to be issued restraining the Defendant from selling or in any way dealing with the parcel of land known as Mavoko Town/Block 3/2198 (hereinafter referred to as the “Suit Property”) pending the hearing and determination of this Application and suit. The Plaintiff/Applicant also seeks for costs of this Application to be provided for.

The Application is premised on the grounds appearing on the face of it together with the Supporting Affidavit of James Waithaka Chege, the Plaintiff/Applicant, in which he averred that about 2nd December 2013, he learnt that the Defendant herein was inviting bids for the purchase of the Suit Property. He further averred that he became interested with the Suit Property and upon conducting a search thereon and satisfying himself with its status, he instructed his advocates to forward his offer of Kshs. 14,500,000/- to the Defendant’s advocates which they did on 9th December 2013. He further stated that by a letter dated 11th December 2013, the Defendant advised his advocates that his offer could not be accepted as a higher bidder was expected to sign the sale agreement. He further disclosed that by a letter dated 16th December 2013, the Defendant’s advocates forwarded to his advocate a sale agreement with instructions that the same be signed and returned with evidence of payment of the deposit. He further stated that on 19th December 2013, he returned the signed sale agreement together with documents evidencing payment of his deposit of Kshs. 4,800,000/-. He then stated that despite his request to the Defendant, he has not been supplied with a copy of the signed sale agreement. He then stated that he has now learnt that the Defendant has found another buyer and intends to refund his deposit. He also stated that he is ready and willing to complete the purchase of the Suit Property within the 90 day period offered by the Defendant in its agreement.

The Application is contested. The Defendant/Respondent filed its Preliminary Objection dated 2nd January 2014 in which it stated the following:

That the Application offends the express provisions of the law

That the Application as filed is fundamentally and incurably defective, bad in law, misconceived and devoid of merit

That the Plaintiff has no locus standi.

That the Application disclosed no cause of action at all as against the Defendant/Respondent.

That the orders sought against the Defendant are not tenable or sustainable at all as there is no contract or agreement between the parties.

That the Application does not meet the threshold of granting an interim injunction or injunction order at all.

That the Application amounts to abuse of court process and should be struck out.

Both the Plaintiff/Applicant and the Defendant/Respondent filed their written submissions in respect of the Preliminary Objection which have been read and taken into account in this ruling.

The main issue that arises out of the Preliminary Objection for my determination is whether there exists a contract or agreement between the Plaintiff and the Defendant for the disposition of the Suit Property to the Plaintiff. This is in an attempt to find out whether the following legal provisions have been satisfied:

The Law of Contract Act at section 3(3) which clearly indicates as follows:

“No suit shall be brought upon a contract for the disposition of an interest in land unless-

The contract upon which the suit is founded

Is in writing

Is signed by all the parties thereto: and

The signature of each party signing has been attested by a witness who is present when the contract was signed by such party…”

The Land Act at section 38 which provides as follows:

“No suit shall be brought upon a contract for disposition of an interest in land unless-

The contract upon which the suit is founded

Is in writing

Is signed by all the parties thereto; and

The signature of each party signing has been attested to by a witness who was present when the contract was signed by such party.

According to the Defendant, the Plaintiff has not exhibited any agreement or document executed by the Defendant to show that the parties were having any such sale transaction as alleged and stated that the sale agreement that the Plaintiff attached to his Application was not executed by the Defendant at all or by any authorized agent of the Defendant.

On the other hand, it is the Plaintiff/Applicant’s contention that the letter from the Defendant to the Plaintiff dated 16th December 2013 constituted a note made in writing by the Defendant as required under section 3(1) and (2) of the Law of Contract Act cited above. He argued that that letter is signed by the Defendant’s advocates on behalf of the Defendant.

I find the Defendant’s argument as being farfetched. There was clearly no intention that the Defendant’s advocates would enter into any legally binding agreement with the Plaintiff through the letter correspondence for the disposition of the Suit Property to the Plaintiff. Clearly, the intention was for both the Plaintiff and Defendant to sign the sale agreement which was forwarded to the Plaintiff. And indeed, the Plaintiff signed his part but there is no evidence of signature of the same by the Defendant. To make matters worse, the signatures of the Plaintiff and Defendant were required to be witnessed. There is no evidence that this was done. Accordingly, I find no difficulty in concluding that the said sale agreement is not binding upon the Defendant and I so find.

Arising from the foregoing, I hereby uphold the Preliminary objection and dismiss this Application. No order as to costs.

SIGNED AND DELIVERED AT NAIROBI THIS __21st __

DAY OF ________February__________________ 2014

MARY M. GITUMBI

JUDGE