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ELCAllowedLand Case No. 75 of 2013· [2014] KEELC 67 (KLR)

Stephen Kibet Malakwen v Benson Gateca Mbugua [2014] KEELC 67 (KLR)

Environment and Land Court
1 December 2014
EOE. Obaga
1,434 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court ordered a land seller to complete a sale five years late, confirming that written demand letters can legally make timing urgent.

What this practically means

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Executive summary

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The plaintiff, an HR Manager with Kenya Seed Company Kitale, sued for specific performance of a written agreement of 3 February 2009 under which the defendant sold him 0.528 acre of LR No. 2116/94/XVI at Milimani Estate for Kshs.900,000. The plaintiff paid the full price (Kshs.500,000 on execution and the balance of Kshs.400,000 in two instalments on 26/2/2009 and 28/2/2009, each acknowledged before an advocate), took possession and constructed a residential house. The agreement obliged the defendant to facilitate subdivision and transfer. The defendant conceded the sale and full payment but resisted specific performance on the ground that he was ready and willing to complete, that the surveyor had failed to subdivide, and that the agreement contained no completion timeline, relying on the dissenting judgment in Gurder Singh Birdi v Abubakar Madhbuti and a Malindi High Court decision. The plaintiff countered that time became of the essence upon service of demand letters, relying on Sagoo v Dourado, Cassam v Sachania and the Ugandan decision of Manzoor and Baram. The court framed the issues as whether time was of the essence and whether specific performance could issue. It applied the Sagoo v Dourado principles, found the defendant had taken no steps to fulfil his obligations over five years despite two demand letters which he acknowledged receiving, and held that such delay was unreasonable, so the notices validly made time of the essence. Finding the defence a sham and the claim proved on a balance of probabilities, the court ordered specific performance, empowered the Deputy Registrar to sign the necessary documents on the defendant's default, and awarded the plaintiff the costs of the suit.

Key legal issues

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01

Whether time was of essence in the sale agreement of 3/2/2009

Holding

Although the agreement did not make time of the essence, the plaintiff's demand letters of 6/3/2013 and 11/6/2013, which the defendant received but ignored, constituted valid notices making time of essence; the 5-year delay was unreasonable.

Reasoning

The court applied the Sagoo v Dourado test. The parties did not expressly stipulate time as of essence, but the defendant, who was obliged to subdivide and transfer, took no steps in furtherance of the contract over five years despite two demand letters. A delay of five years was held unreasonable in the circumstances, and the notices validly made time of the essence.

p. 3
02

Whether specific performance should be ordered

Holding

Specific performance was granted because the plaintiff proved the sale agreement and full payment on a balance of probabilities, took possession and built a maisonette, and nothing disentitled him from the relief.

Reasoning

The defendant conceded the sale and full payment and did not oppose the claim. The defendant failed to prove he had paid land rent and rates, blaming the surveyor without evidence. The plaintiff had taken possession and constructed a residential house. The court found the defence a sham and proved the case on a balance of probabilities.

p. 3

Legal principles established

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  • In contracts of all types, time will not be considered of the essence unless the parties expressly stipulate it, the nature of the subject matter or surrounding circumstances show it, or a party subjected to unreasonable delay gives notice making time of essence.
  • A party who has been subjected to unreasonable delay may make time of essence by notice to the party in default.

Court orders

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  1. 1.An order of specific performance of the agreement for sale dated 3/2/2009 is issued
  2. 2.The Deputy Registrar is empowered to sign all documents necessary to give effect to the agreement of 3/2/2009 if the defendant will not willingly comply
  3. 3.The plaintiff shall have costs of the suit
Jurisdiction invoked
Environment and Land Court original jurisdiction over contracts for sale of land (ELC), Land Case No. 75 of 2013

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Stephen Kibet Malakwen v Benson Gateca Mbugua [2014] KEELC 67 (KLR)", Case Analysis (2014). Land Case No. 75 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/67/eng@2014-12-01

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.