Wandemi Developers Limited v Ndegwa (Civil Appeal 217 of 2019) [2025] KECA 431 (KLR)
The bottom line
#A Kenyan vendor who accepts a land buyer's late payment cannot then terminate the sale agreement — the Court of Appeal ordered the sale to proceed at the original price.
What this practically means
#Executive summary
#Key legal issues
#Whether the sale agreement was invalid for non-compliance with the Law of Contract Act and section 37 of the Companies Act
The point failed because the appellant had pleaded and sworn that a valid contract existed at Kshs.2,000,000/= and was bound by its pleadings; it could not resile from its own case.
The Court noted that the validity issues were never raised in the defence. The appellant's pleadings and the witness statement of its director, Joseph Ng'ang'a Njuguna, affirmed a contract for the sale of the suit premises at Kshs.2,000,000/= payable within 90 days. Parties are bound by their pleadings and evidence inconsistent with them must be ignored. The appellant conceded the contract and could not be allowed to resile from it.
Whether the appellant lawfully rescinded the agreement
No. Having accepted the outstanding balance after the termination letter, the appellant affirmed the contract and rescission was unavailable.
The trial court had found the appellant stopped from raising late payment after accepting payments outside the three-month period. The Court agreed that once the outstanding balance of Kshs.450,000/= was received after the purported termination, the respondent was in no breach, and receipt of payment after notice of termination operated as a bar to rescission, the appellant being deemed to have affirmed the contract and restitution becoming impossible.
Whether the demand for Kshs.5,000,000/= varied the contract
It did not. The higher figure was a unilateral proposal that the respondent never accepted and could not become a term of the contract.
The appellant wrote to the respondent varying the contract to meet the market price. There was no evidence, verbal or written, that the respondent agreed to the new figure or paid anything towards it. The proposal therefore did not amount to a new term and did not vary the signed agreement, leaving the purchase price at Kshs.2,000,000/=.
Whether the respondent was entitled to specific performance and permanent injunction
Yes. Having performed a valid subsisting contract, the respondent was entitled to the prayers in the plaint.
The Court found a valid sale agreement which the respondent performed, with no lawful rescission by the appellant. The appellant's arguments that specific performance was unavailable because the property had been sold to a third party and that the respondent came with unclean hands did not persuade the Court, which affirmed the trial court's grant of the equitable remedies.
Legal principles established
#- A vendor who issues a notice limiting time but then accepts payment from the purchaser beyond that time must issue a fresh notice before treating the contract as at an end; he cannot rely on the expired notice.
- A unilateral proposal by one party to vary the purchase price, not assented to by the other, does not amount to a new term of the contract.
- An appellate court will not disturb the findings of a trial court unless they were not based on the evidence on record or the trial court acted on wrong principles.
- Parties are bound by their pleadings, and evidence at variance with, or not supportive of, the pleadings must be ignored.
- Acceptance of payment after notice of termination operates as an affirmation of the contract barring rescission, since restitution becomes impossible.
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal awarded to the respondent
- On appeal from
- Environment and Land Court at Nairobi
- Not stated in the judgment
- Jurisdiction invoked
- First appellate jurisdiction under the law governing appeals from the Environment and Land Court (specific provision not stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mwinyihaji v Mwebeyu & another (Civil Appeal E075 of 2022) [2025] KECA 868 (KLR)[2025] KECA 868 (KLR)23 May 2025applied
Cite this brief
#Cite this brief
Caselaw, "Wandemi Developers Limited v Ndegwa (Civil Appeal 217 of 2019) [2025] KECA 431 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/431/eng@2025-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.