[2002] KEHC 837 (KLR)
The court found that the petroleum trading licence was in the respondent's name and that any purported assignment to the appellant was invalid as it was neither in writing nor authorized by law. The appellant's use of the licence without proper assignment or consent from the licensing authority was illegal. The...
Source-derived case information.
- Citation
- [2002] KEHC 837 (KLR)
- Parties
- Appellant: Mark Wangai Muchemi; Respondent: Jelo Limited
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 48 of 2000
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- Appeal partly allowed; restraining order upheld; damages award set aside; counter-claim dismissed; no order as to costs on appeal; respondent awarded costs in lower court.
- Judges
- GP Mbito
- Legal Topics
- Licence Assignment, Damages Award, Injunctive Relief, Counter Claims
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mark Wangai Muchemi
Appellant
Jelo Limited
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the appellant was entitled to use the respondent's petroleum trading licence without proper assignment or consent.
- 2 Whether the respondent was entitled to damages for loss of anticipated income due to the appellant's use of the licence.
- 3 Whether the appellant's counter-claim for deletion of his plot from the respondent's licence was maintainable.
Ratio Decidendi
The court found that the petroleum trading licence was in the respondent's name and that any purported assignment to the appellant was invalid as it was neither in writing nor authorized by law. The appellant's use of the licence without proper assignment or consent from the licensing authority was illegal. The court also held that the respondent's claim for damages was not maintainable because there was no enforceable agreement for the lease of the plot, as required by law for interests in land. The appellant's counter-claim for deletion of his plot from the respondent's licence was dismissed because the licence was not transferable and had been obtained with his consent. Consequently,...
Court Disposition
Appeal partly allowed; restraining order upheld; damages award set aside; counter-claim dismissed; no order as to costs on appeal; respondent awarded costs in lower court.
Orders
- Appellant restrained from using the respondent's petroleum trading licence.
- Award of Shs.20,000/- damages to respondent set aside.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUSIA
CIVIL APPEAL NO. 48 OF 2000
(From Original Civil Suit 382/1999)
MARK WANGAI MUCHEMI………..……………….APPELLANT
VERSUS
JELO LIMITED……………….…………………….RESPONDENT
JUDGEMENT
In this Appeal filed on 29th September, 2000, the appellant takes issue with the Learned Trial Magistrates’ judgement restraining the appellant from using the respondents licence to trade in petroleum products and the award of shs.20,000/- damages in favour of the respondent payable by the appellant as loss suffered by the respondent for use of the licence by the appellant.
The respondents’ case as per pleadings in the lower court was that it was the owner of licence to trade in petroleum products on a plot owned by the appellant who denied the respondent the use of the plot and used a photocopy of its licence to trade in petroleum products and despite a request to cease so using the respondent’s licence, the appellant had continued so doing leading to the filing of the suit for a restraining order and damages. On the other hand, it was the appellants case that the licence had been procured on his behalf by the respondent and that the respondent had assigned all rights thereunder to the appellant. The appellant counter-claimed for deletion of his plot No. 1875 from the respondent’s licence. The parties reiterated their respective cases, with the respondent producing a copy of its licence in its name. On its part, the appellant produced vouchers for payment of some money to the respondent prior to the issue of the licence said to be donations by one of its directors. No agreement for assignment of the licence was produced by the appellant. On the above pleadings and evidence, the trial court found for the respondent and proceeded to award Shs.20,000/- for loss of anticipated income.
As can be seen, it is not in dispute that the licence is in the name of the respondent. It was therefore illegal to operate using it without the consent of the licensing authority. The purported assignment, which was in any case denied, was completely in operative as it was not in writing nor authorised by law as the law does not authorise such use of another licence.
I find some difficulty on the second limb of the respondents suit, namely the award of damages. In the first place the agreement to lease the respondent’s plot being one for an interest in land required to be in writing or part performance. There was nothing of the sort and as such the claim was not maintainable.
As regards the counter claim, the licence was not transferable. There was also evidence that the same was obtained with his consent. It was therefore not unlawfully quoted thereon and the court was therefore entitled to dismiss it.
In view of the above, I uphold the orders restraining the appellant from using the respondents licence. I however allow the appeal against damages and hereby set aside the award of Shs.20,000/-. I dismiss the claim for same and the appellants counter claim without costs.
As none of the parties has been entirely successful, there will be no order for costs of the appeal and each party will meet its own costs of this appeal. The respondent will however have the costs of his suit in the lower court. Orders accordingly.
Dated and delivered at Busia this 6th day of March, 2002.
G.P. Mbito
JUDGE