Geoffrey Chege Kirundi & 1 other v Josvir Traders & Agencies Limited & 1 other
The bottom line
#Kenya's Court of Appeal confirmed that vendors who terminate a land sale without a 21-day completion notice, then secretly resell the property, breach the contract and commit fraud.
What this practically means
#Executive summary
#Key legal issues
#Which party breached the sale agreement of 30th December 2008
The appellants (vendors), not the purchaser, breached the agreement by demanding payment before it was due, purporting to terminate without the required completion notice, and secretly selling the property to the 2nd respondent while the termination notice was undelivered
The sale agreement fixed the balance payable within 210 days of the ruling; the appellants' demand for the entire balance by 30th April 2009 was baseless. The alleged oral variation was unproven and contrary to section 3(3) of the Law of Contract Act. The application for Land Control Board consent to transfer to the 2nd respondent was lodged before termination, showing the appellants never intended to see the agreement through.
Whether the sale to the 2nd respondent was fraudulent, illegal, null and void
Yes. The timing of the consent application, the same-day sale agreement and consent on 5th May 2009, and the transfer on 11th May 2009 before the termination notice was received, established a transaction meant to defraud the 1st respondent
The 2nd respondent could not be a bona fide purchaser without notice where it applied for consent four days before the agreement, and no explanation was given for this irregularity. Citing Katende v Haridas, fraud can be imputed on a person who participated in or benefited from the fraudulent transaction. The court may rely on the entire record in determining whether fraud is proved.
Whether the interest rate of 18% per annum compounded monthly imposed by the trial court was proper
Yes. Although there was no clause specifically covering interest payable by a defaulting vendor, clause 8 was properly applied mutatis mutandis to the appellants whose breach was worse than the situation contemplated by clause 11
The agreement protected the vendor on the purchaser's default (clause 8) and covered only inability to transfer arising from circumstances beyond the vendor's control (clause 11). It could not be that the vendor owes no interest where it deliberately breaches, while liability would exist for circumstances beyond its control. The court cannot rewrite the contract, but applying clause 8 mutatis mutandis was justified.
Legal principles established
#- An alleged oral variation of a written contract for the sale of land is unenforceable where it is not in writing, contrary to section 3(3) of the Law of Contract Act, and unproved under section 98 of the Evidence Act
- A vendor who terminates a sale agreement governed by the Law Society Conditions of Sale (1989 Edition) must issue a 21-day completion notice allowing remedy of breach before lawfully terminating, notwithstanding that time is of the essence
- Fraud may be imputed on a purchaser for value who was aware of and participated in, benefited from, or condoned the fraud
- A first appellate court may interfere with findings of fact of the trial court where they are based on no evidence, on a misapprehension of the evidence, or on wrong principles
- Where grounds of appeal raised in a memorandum of appeal are not addressed in submissions or orally, they are deemed abandoned
Court orders
#- 1.The appeal is dismissed with costs to the 1st respondent, to be borne by the appellants
- 2.The cross-appeal dated 6th January 2025 is dismissed with costs to the 1st respondent, to be borne by the appellants
- On appeal from
- Environment and Land Court at Machakos
- ELC No. 174 of 2018 (formerly Nairobi ELC No. 236 of 2009)
- Jurisdiction invoked
- First appellate jurisdiction under the Court of Appeal Act and Article 164 of the Constitution (appellate court reconsidering and re-evaluating the evidence)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Geoffrey Chege Kirundi & 1 other v Josvir Traders & Agencies Limited & 1 other", Case Analysis (2026). Nairobi Civil Appeal No. 164 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1109/eng@2026-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.