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ELCAllowedNot stated in judgment· [2013] KEELC 3 (KLR)

Teshome Bantidagn Feleke v Regnol Oil (K) Limited [2013] KEELC 3 (KLR)

High Court of Kenya
26 November 2013
1,927 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court struck out a property seller's defence because it raised no real issues, ordering the seller to complete the sale and pay costs.

What this practically means

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Executive summary

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The Plaintiff moved by Notice of Motion dated 12/3/2013 seeking to strike out the Defendant's Statement of Defence and Counterclaim and to have judgment entered as prayed. The suit concerned a sale agreement dated 9th January 2007 over a four-bedroomed maisonette at Diamond Park South B (LR No. 209/17636) for Kshs 5,150,000/=, which the Plaintiff paid in full and took possession of. The Defendant, while admitting receipt of the full purchase price, contended that completion was conditional on the Nairobi City Council granting a certificate of occupation, which had not issued, and offered to rescind and refund, claiming alternatively that the Plaintiff was a tenant owing Kshs 3,360,000/= in rent. The court framed two issues: whether the Defence and Counterclaim should be struck out, and whether judgment should be entered for the Plaintiff. Applying Order 2 Rule 15(1) and the D.T. Dobie v Muchina principles, the court held the pleading raised no triable issues: clause 5.1 was not a condition precedent, completion obligations regarding the occupation certificate lay with the vendor, and no tenancy was pleaded or proved. The Defence and Counterclaim was struck out, judgment entered for the Plaintiff, the Defendant given six months to complete the sale and transfer the property, and ordered to pay the costs of the suit.

Key legal issues

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01

Whether the Defence and Counterclaim should be struck out under Order 2 Rule 15(1)

Holding

It was struck out because it raised no triable issues, being frivolous, vexatious and an abuse of process

Reasoning

The court reviewed the sale agreement and found the Plaintiff had performed his obligations by paying the full purchase price. Completion obligations regarding the certificate of occupation lay with the vendor, and clause 5.1 was not a condition precedent. The agreement contained no tenancy arrangement and none was proved, so the defence and counterclaim disclosed no triable issue.

p. 4
02

Whether clause 5.1 of the sale agreement constituted a condition precedent

Holding

No; the use of the word 'when' does not make completion subject to the certificate of occupation

Reasoning

Applying the definition of a condition precedent from Black's Law Dictionary, the court held that the clause contemplated the certificate being granted to the vendor as a matter of course. The Defendant's failure to obtain the certificate therefore did not excuse non-completion of the sale.

p. 4
03

Whether the Plaintiff could be treated as a tenant owing rent

Holding

No tenancy arrangement existed between the parties

Reasoning

The sale agreement did not provide for any tenancy, and the Defendant brought no proof of a tenancy agreement. The Plaintiff had paid the entire purchase price and was in possession, so the counterclaim for rent of Kshs 3,360,000/= had no factual or contractual foundation.

p. 4

Legal principles established

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  • The power to strike out pleadings should be used sparingly and cautiously since it is exercised without full information on the merits
  • The overriding consideration in a striking-out application is whether the pleading raises triable issues
  • A completion clause using the word 'when' in respect of a certificate of occupation does not make completion subject to that certificate and is not a condition precedent

Court orders

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  1. 1.The Defence and Counterclaim dated 18th February 2013 and filed on 22nd February 2013 struck out, and judgment entered in favour of the Plaintiff
  2. 2.The Defendant to complete the sale agreement dated 9th January 2007 within six months and transfer to the Plaintiff all that parcel of land known as L.R. No. 209/17636 being a 4-bedroomed maisonette situated at Diamond Park South B
  3. 3.The Defendant to meet the costs of the suit
  4. 4.The parties shall be at liberty to apply

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 Rule 15(1)

Cases cited (1)

  • D.T. Dobie & Company (Kenya) Ltd. v. Muchina
    [1982] KLR 1
Jurisdiction invoked
Order 2 Rule 15(1) of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Teshome Bantidagn Feleke v Regnol Oil (K) Limited [2013] KEELC 3 (KLR)", Case Analysis (2013). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/3/eng@2013-11-26

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.