[2007] KEHC 2899 (KLR)
The court found that the plaintiff had not established a prima facie case with a probability of success because there were serious doubts as to whether the fifth defendant had authority to enter into the lease and, crucially, because the lease was executed by a non-existent party—the plaintiff company was not in...
Source-derived case information.
- Citation
- [2007] KEHC 2899 (KLR)
- Parties
- Plaintiff: Wheat & Barley Fields Limited; Defendant: Ruth Damaris Wambui Mbiyu; Defendant: David Njunu Mbiyu; Defendant: Margaret Njeri Mbiyu; Defendant: Eddah Wanjiru Mbiyu; Defendant: Isaac Njunu Mbiyu; Defendant: Impulse Developers Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 263 of 2006
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed with costs to the second, third, fourth and sixth defendants/respondents
- Judges
- ARM Visram
- Legal Topics
- Injunctive Relief, Validity of Lease, Authority of Administrators, Transfer of Land, Land Control Board Consent
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wheat & Barley Fields Limited
Plaintiff
Ruth Damaris Wambui Mbiyu
Defendant
David Njunu Mbiyu
Defendant
Margaret Njeri Mbiyu
Defendant
Eddah Wanjiru Mbiyu
Defendant
Isaac Njunu Mbiyu
Defendant
Impulse Developers Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiff is entitled to an interlocutory injunction restraining the defendants from dealing with LR. No. 8669/3 pending determination of the suit.
- 2 Whether the lease agreement dated 1st May 2005 is valid and enforceable against the defendants.
- 3 Whether the transfer of the suit property to the sixth defendant was valid and extinguished the plaintiff's rights, if any.
Ratio Decidendi
The court found that the plaintiff had not established a prima facie case with a probability of success because there were serious doubts as to whether the fifth defendant had authority to enter into the lease and, crucially, because the lease was executed by a non-existent party—the plaintiff company was not in existence at the time of execution. There was no subsequent ratification of the contract by the parties. Furthermore, the suit land had already been sold and transferred to the sixth defendant, who purchased it without notice of the lease, and the transfer had been authorized by the court. The court concluded that the lease was invalid in law and that the plaintiff was not...
Court Disposition
application dismissed with costs to the second, third, fourth and sixth defendants/respondents
Orders
- The plaintiff's application for an interlocutory injunction is dismissed.
- Costs awarded to the second, third, fourth and sixth defendants/respondents.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Suit 263 of 2006
WHEAT & BARLEY FIELDS LIMITED ……………........... PLAINTIFF
VERSUS
RUTH DAMARIS WAMBUI MBIYU ……….…....…. 1ST DEFENDANT
DAVID NJUNU MBIYU …………………….…...……2ND DEFENDANT
MARGARET NJERI MBIYU …………….……...….. 3RD DEFENDANT
EDDAH WANJIRU MBIYU …………….…...….…… 4TH DEFENDANT
ISAAC NJUNU MBIYU ………………….…..…….… 5TH DEFENDANT
IMPULSE DEVELOPERS LIMITED ….…..………. 6TH DEFENDANT
RULING
In this application, dated 17th March, 2006, the Plaintiff Applicant seeks an order restraining the Defendants from
“parting with, dealing with, disposing of, wasting, alienating, interfering with the quiet possession of the plaintiff or in any other way dealing with LR. No. 8669/3 pending the hearing and determination of this suit.”
on the following grounds:
(a) The plaintiff has entered into a lease agreement dated 1st May 2005 with the 1st, 2nd, 3rd, 4th and 5th defendants as administrators of the estate of the late Mbiyu Koinange over LR. NO.8669/3 belonging to the said estate.
(b) The plaintiff leased for a period of 3 years with effect from 1st May 2005 with an option to renew and with the plaintiff enjoying the first option to purchase, under the terms of the lease.
(c) The defendants have evinced an intention to unilaterally terminate and breach the lease agreement dated 1st May 2006 by purporting to sell the suit property LR. No. 8669/3 to the 6th defendant.
(d) The plaintiff on assurance of the terms of the lease has extensively developed the suit property and sublet portions of the property LR. No. 8669/3 to third parties as is provided under the lease agreement dated 1st May, 2005.
(e) The defendants have in complete disregard of the lease agreement dated 1st May 2005 threatened to dispose of LR. No. 8669/3 and evict the plaintiff therefrom unless restrained by this Honourable Court.
Ms. Migiro, Counsel for the Plaintiff, submitted before this Court that the Plaintiff has a valid lease, although not registered at the Lands Office, with the Fifth Defendant, acting on behalf of all the first four Defendants, entitling it to possession of the suit land; that the purported sale and transfer of the suit land is invalid because (i) the transferor, Settlement Fund Trustees, had no capacity to transfer as it is not the owner of the suit land, and (ii) this being agricultural land, the transfer requires consent of the Land Control Board (LCB), which had not been obtained; and that the balance of convenience tilted in the Plaintiff’s favour because it had sub-leased the premises to third parties. She concluded her submission with the argument that damages would not be an adequate remedy.
Mr. Kingara, Counsel for the Sixth Defendant, submitted that the suit land has already been transferred to the Sixth Defendant, pursuant to an order of the Court authorizing transfer; that the Sixth Defendant had no prior notice of the Plaintiff’s lease; that in any event the purported lease is invalid as it was executed by a non-existing party; and that Settlement Fund Trustees do not require consent of LCB.
Mrs. Kariuki, for the Second, Third and Fourth Defendants, also opposed the application, arguing that the lease was entered into by the Fifth Defendant without the consent of the Administrators, and was therefore invalid.
Having heard submissions and perused the depositions filed before this Court, I am satisfied that the Plaintiff has not made out a prima facie case with a probability of success, and is not entitled to the orders sought. There are serious questions here whether the Fifth Defendant had indeed any authority to enter into the lease. In any event, the lease was executed by a non-existing party, as the Plaintiff Company was not in existence at the time it purported to execute the lease. There is no new or fresh agreement between the parties ratifying the contract made by the non-existing party. Accordingly, in my view, the lease is invalid in law. Finally, the suit land has been sold and transferred to a third party, the Sixth Defendant herein who has sworn that he purchased the same without notice of the existence of the lease. The transfer to the Sixth Defendant has been authorized by the Court.
Accordingly, I find that the Plaintiff has not established a prima facie case with probability of success, and I dismiss this application with costs to the Second, Third, Fourth and Sixth Defendants/Respondents.
Dated and delivered at Nairobi this 6th day of March, 2007.
ALNASHIR VISRAM
JUDGE