Teshome Bantidagn Feleke v Regnol Oil (K) Limited [2013] KEELC 3 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Defence and Counterclaim should be struck out under Order 2 Rule 15(1)
It was struck out because it raised no triable issues, being frivolous, vexatious and an abuse of process
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.
Whether clause 5.1 of the sale agreement constituted a condition precedent
No; the use of the word 'when' does not make completion subject to the certificate of occupation
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.
Whether the Plaintiff could be treated as a tenant owing rent
No tenancy arrangement existed between the parties
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.
Legal principles established
#- 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
#- 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.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.The Defendant to meet the costs of the suit
- 4.The parties shall be at liberty to apply
- Jurisdiction invoked
- Order 2 Rule 15(1) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.