Thiani v Kedong Ranch Limited & 6 others (Environment and Land Case E006 of 2025) (Environment and Land) [2025] KEELC 5133 (KLR)
The bottom line
#A property buyer's Kshs 452 million offer didn't create a binding Kenyan contract, so the court refused to block the land's owners from dealing with it.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 1st, 2nd, 4th, 5th, 6th and 7th Defendants/Respondents' Preliminary Objection dated 28th March 2025 has merit
- 2.Whether the Plaintiff/Applicant has satisfied the grounds for the granting of the injunction orders sought (in particular, whether she established a prima facie case)
Key legal issues
#Whether the Applicant established a prima facie case for an interlocutory injunction
No prima facie case was established; the injunction application was dismissed
The court held that a letter of offer is binding only if it contains a clear and definite offer, unconditional acceptance, consideration and intention to create legal relations. The general letter of offer dated 14th February 2023 did not conform to Section 3(3) of the Law of Contract Act and created no enforceable agreement. Further, under Section 26 of the Land Registration Act the certificate of lease is conclusive evidence of proprietorship, and the Applicant exhibited no document proving any proprietary right to the suit land.
Whether the suit and application are res judicata in light of Naivasha ELC Case No. E087 of 2024
The res judicata limb of the preliminary objection failed
Relying on Section 7 of the Civil Procedure Act and John Florence Maritime Services, the court applied the four elements of res judicata, including a former final judgment on the merits. The prior judgment of 25th January 2025 had struck out the suit for failure to register the Special Power of Attorney without determining the substantive issues, and interlocutory injunctions are provisional orders that do not decide substantive rights. Res judicata was therefore not made out.
Whether the joinder of the 4th to 7th Defendants could be challenged by way of preliminary objection
It could not; misjoinder/non-joinder requires factual ascertainment and is remedied by amendment or striking out a party's name, not dismissal of the suit
Citing Order 1 Rule 9 of the Civil Procedure Rules, the court held that a suit shall not be defeated by misjoinder or non-joinder of parties. Determining whether a party is necessary or properly joined involves delving into the facts, so the issue is not a pure point of law under Mukisa Biscuits and cannot sustain a preliminary objection; the remedy is amendment or substitution under Order 1 Rule 10.
Legal principles established
#- A general letter of offer that does not comply with Section 3(3) of the Law of Contract Act creates no enforceable contractual obligation
- An applicant for an interlocutory injunction who fails to establish a prima facie case need not be considered on the other Giella conditions, which are sequential
- Allowed applications for interlocutory injunction, and orders striking out a suit on procedural grounds, do not constitute res judicata because they are not final determinations on the merits
- Misjoinder or non-joinder of parties is not a pure point of law and cannot sustain a preliminary objection; Order 1 Rule 9 prohibits defeating a suit for misjoinder
Court orders
#- 1.The Notice of Motion dated 10th February 2025 seeking injunction orders is dismissed
- 2.The Notice of Preliminary Objection dated 28th March 2025 is dismissed
- 3.Costs shall follow the outcome of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to land; application under Sections 1A, 1B and 3A of the Civil Procedure Act, Order 40 Rules 1, 3 and 4 and Order 50 Rule 1 of the Civil Procedure Rules
Relief refused
#Interim injunction restraining the 1st and 2nd Respondents from dealing with, adversely using or disposing of LR No. 10854/309 (IR 207243) pending hearing and determination of the suit
The Applicant failed to establish a prima facie case: the letter of offer did not comply with Section 3(3) of the Law of Contract Act and created no enforceable contract, and she exhibited no proprietary right to the suit land
Dismissal of the suit on grounds of res judicata and improper joinder (sought via the Preliminary Objection)
The prior striking-out of the earlier suit for failure to register the Special Power of Attorney was not a final determination on the merits, so res judicata was not established; and misjoinder/non-joinder is not a pure point of law capable of founding a preliminary objection
Costs
Costs shall follow the outcome of the suit
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I find no merit in both the application on a Notice of Motion dated 10th February 2025 seeking orders of injunction and the Preliminary Objection dated 28th March 2025 therein raised in response which Applications are herein dismissed. Costs shall follow the outcome of the suit.
the Applicant has not established a prima facie case and cannot therefore benefit from an order of injunction
I find no evidence that letter of offer herein did conform to the requirements of Section 3(3) of the Law of Contract Act and therefore did not create any contractual obligation and therefore the letter of offer dated the 14th February 2023 did not yield an agreement that could be enforced.
Allowed applications for an injunction therefore do not constitute res judicata in a subsequent suit because they are temporary orders granted by a court to maintain the status quo pending the final determination of a suit.
The preliminary objection herein raised on res judicata, I find therefore has no merit.
Issues in the judgment
#The judgment's own framing of the issues for determination departs from the issues framed by the parties: the court opens its determination with only the injunction question, whereas both parties had framed two issues including the preliminary objection, which the court addresses later under a separately labelled 'second issue'
The coram does not state the case number of the present suit, and the parties are identified only by role numbers rather than full names for the Respondents
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Thiani v Kedong Ranch Limited & 6 others (Environment and Land Case E006 of 2025) (Environment and Land) [2025] KEELC 5133 (KLR)", Case Analysis (2025). Not stated in the excerpt (suit before the Environment and Land Court at Naivasha). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5133/eng@2025-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.