Collins v Ogango (Civil Appeal 427 of 2018) [2024] KECA 19 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed a vendor who wrongly rescinded a KShs 52 million property sale must pay 10% liquidated damages, and the sale must still be completed.
What this practically means
#Executive summary
#Key legal issues
#Breach of the sale agreement and attribution
The appellant, not the respondent, breached the agreement by unilaterally and unjustifiably rescinding it without fulfilling her own obligations (securing completion documents, the irrevocable undertaking, and the certificate of occupation).
The respondent paid over 10% of the purchase price to the 2nd defendant on the appellant's account. The appellant failed to procure the certificate of occupation, the completion documents and the long-term lease, then issued a 21-day notice and rescinded without refunding sums paid over 10%. Following Delilah Kerubo Otiso, such oppressive and high-handed conduct cannot be countenanced; the vendor cannot benefit from her own mischief.
Entitlement to liquidated damages of 10%
The respondent was entitled to the 10% liquidated damages because completion failed due to default not attributable to him; the liquidated damages clause binds the defaulting vendor.
The agreement provided that where the vendor fails to comply with a 21-day notice she must return all monies plus 10% as agreed liquidated damages. The contractual discretion to rescind lay with the respondent, not the appellant. The award was discretionary and within the trial court's powers; the Court would not interfere absent misdirection (Mbogo v Shah).
Co-existence of damages and specific performance
Damages and specific performance may be granted concurrently where they are directed at different parties for different breaches; no unjust enrichment arises.
Relying on Ritho v Kariithi and Gharib Suleman Gharib, a court may award damages in addition to specific performance. Since the suit property had not been sold to a third party, ordering completion and transfer brought complete resolution; specific performance was against the 2nd defendant, damages against the appellant.
Costs of the suit
The appellant was properly ordered to bear the costs; costs follow the event and are at the trial court's discretion, and the 2nd defendant's liability could not be determined absent its participation in the appeal.
The 2nd defendant acted under the appellant's directions in the transaction, making the appellant liable for costs. The issue of costs is discretionary and follows the event. The 2nd defendant, being unnamed in the appeal, could not be condemned in costs without being heard.
Legal principles established
#- On a first appeal, the Court of Appeal must re-evaluate and re-analyse the evidence and draw its own conclusions, making allowance for not having seen or heard the witnesses.
- Courts cannot re-write contracts for parties nor imply terms not in the contract; clear express terms must be applied even if other terms might seem more suitable.
- A court may award damages in addition to, or in substitution for, specific performance where it has jurisdiction to entertain an application for specific performance.
- A party who is not before the appellate court cannot be condemned in costs.
Court orders
#- 1.Appeal dismissed with costs to the respondent
- 2.Judgment and decree of the ELC (liquidated damages of 10% of purchase price, specific performance against Collins Park Villas Limited, payment of balance of purchase price, costs to respondent) left intact
- On appeal from
- Environment and Land Court
- ELCC No. 606 of 2016 (OS)
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (contract/land dispute originating in the ELC)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Francis Otieno Opondo v Mathew Ooko Ogutu[2026] KEELC 6008 (KLR)30 Sept 2026
- Kilifi Plantation Ltd v Karimi (Civil Appeal E039 of 2023) [2026] KECA 910 (KLR)[2026] KECA 910 (KLR)15 May 2026followed
- Riria v Muthuri (Environment and Land Case Civil Suit E001 of 2023) [2025] KEELC 744 (KLR)[2025] KEELC 744 (KLR)20 Feb 2025
- Laban v M’Ananua (Environment and Land Appeal E037 of 2023) [2024] KEELC 7320 (KLR)[2024] KEELC 7320 (KLR)23 Oct 2024
Cite this brief
#Cite this brief
Caselaw, "Collins v Ogango (Civil Appeal 427 of 2018) [2024] KECA 19 (KLR)", Case Analysis (2024). Civil Appeal from ELCC No. 606 of 2016 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/19/eng@2024-01-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.