[2009] KEHC 3816 (KLR)
The court held that, pursuant to Section 3(3) of the Law of Contract Act, no suit can be brought upon a contract for the disposition of an interest in land unless the contract is in writing, signed by all parties, incorporates all expressly agreed terms in one document, and is attested by a witness. In this case,...
Source-derived case information.
- Citation
- [2009] KEHC 3816 (KLR)
- Parties
- Plaintiff: Redhood Developments Ltd.; Defendant: Speedway Investments Ltd.
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 198 of 2009
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection upheld; suit and application dismissed with costs
- Legal Topics
- Contracts for Sale of Land, Preliminary Objection, Injunctions, Statutory Requirements for Contracts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Redhood Developments Ltd.
Plaintiff
Speedway Investments Ltd.
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether a valid contract existed between the parties for the disposition of an interest in land as required by Section 3(3) of the Law of Contract Act.
- 2 Whether the absence of a written and signed contract renders the suit incompetent.
Ratio Decidendi
The court held that, pursuant to Section 3(3) of the Law of Contract Act, no suit can be brought upon a contract for the disposition of an interest in land unless the contract is in writing, signed by all parties, incorporates all expressly agreed terms in one document, and is attested by a witness. In this case, there was no such contract between the parties, regardless of whether payment was made. The statute does not address the issue of money paid in the absence of a valid contract; any money paid becomes a debt but does not create enforceable contractual rights to the property. Consequently, the preliminary objection was upheld and both the application and the suit were dismissed...
Court Disposition
preliminary objection upheld; suit and application dismissed with costs
Orders
- The preliminary objection is upheld.
- The suit and application are dismissed with costs.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
(MILIMANI COMMERCIAL COURTS COMMERCIAL AND TAX DIVISION)
CIVIL CASE 198 OF 2009
REDHOOD DEVELOPMENTS LTD. …...PLAINTIFF
VERSUS
SPEEDWAY INVESTMENTS LTD. …………………....DEFENDANT
RULING ON PRELIMINARY OBJECTION
Plaintiff made application dated 23/3/2009 seeking orders of injunction regarding property described as 2 bedroom apartment AB2, Block A – L.R. No.330/667, Cedar Valley, Nairobi.
The objection taken is that no contract exists between the parties in view of Section 3 (3) of the Law of Contract Act, Cap.23. That Sectionstates no suit shall be brought upon a contract for disposition of any interest in land unless the contract is in writing and is signed by all parties thereto and incorporates all the parties thereto and incorporates all the terms which the parties have expressly agreed in one document and the signature of each party signing has been attested by a witness who is present when the contract was signed by that party.
In view of the said provisions the preliminary objection is upheld. There was no contract between the parties whether payment was made or not. The Act does not mention anything to do with money. It is clear the money paid if any, becomes a debt. The application allowed. The suit and application are herewith dismissed with costs.
It is so ordered.
DATED and DELIVERED at Nairobi this 5th day of May 2009.
JOYCE N. KHAMINWA
JUDGE