Blueridge Capital Limited v Njoroge & another
The bottom line
#Kenya's Court of Appeal confirmed that a land buyer demanding vacant possession before completion was itself in breach, losing a Kshs. 55 million damages claim.
What this practically means
#Executive summary
#Key legal issues
#Whether the vendors were in breach for failing to disclose the lease and give vacant possession before completion
No breach: the purchaser had notice of the lease from inspection, and the vendors' obligations as to title and vacant possession arose only at completion
The Court agreed the purchaser had a duty of due diligence before signing. The sale agreement made no provision for vacant possession between signing and completion, so possession was deemed to be upon completion. The Appellant's demands for vacant possession before completion were premature and themselves in breach, and it had also failed to provide the professional undertaking or pay the balance purchase price.
Whether the Appellant was entitled to additional interest on the deposit
No: the refund was governed by a consent adopted as a court order, and the deposit clause made no provision for interest
Clause 3.2 of the sale agreement made no provision for interest on the deposit, which was to be held as stakeholder. The refund of Kshs. 13,186,952/= resulted from the consent dated 21st November 2014 terminating the agreement and providing for refund, adopted as an order of the trial court; the Appellant cannot vary that consent in this appeal.
Whether unexecuted letters and alleged supplementary agreements varied the sale agreement
The alleged amended and supplementary agreements were not executed and had no legal effect
It was not in contest that the only executed agreement was that dated 12th July 2013, whose completion date was extended by consent and which was terminated by consent. The alleged amended and supplementary agreements produced in evidence were not executed, so the letters proposing price revisions could not bind the parties.
Legal principles established
#- On a first appeal, the Court of Appeal is not bound by the trial judge's findings of fact where they are not based on the evidence or where the trial court acted on wrong principles of law
- In a sale of land where the agreement makes no specific provision for vacant possession before completion, possession is deemed to be given upon completion
- A consent order adopted by the court cannot be set aside or varied collaterally in a subsequent appeal
Court orders
#- 1.Appeal dismissed with costs to the 1st and 2nd Respondents
- On appeal from
- Environment and Land Court at Mombasa
- Mombasa ELC Case No. 322 of 2015 (stated in body; caption says ELC no. 12 of 2014)
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (Constitution Article 164; no specific provision cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Blueridge Capital Limited v Njoroge & another", Case Analysis (2022). Civil Appeal 144 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/557/eng@2022-06-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.