Anthony Francis Wareham v Brian John Hawkes & another [2014] KEELC 161 (KLR)
The bottom line
#A Kenyan High Court allowed an estate to seek review of an old sale order, but chose interest on the purchase price rather than a fresh property valuation.
What this practically means
#Executive summary
#Key legal issues
#Whether the ruling of 16th September 2010 was amenable to review under section 80 of the Civil Procedure Act and Order 45 Rule 1
Yes, in part - the unavailability of title, non-payment of the purchase price and non-execution of the sale agreement constituted sufficient reasons to review the ruling only as to the purchase price/interest
The court applied Order 45 Rule 1(b) conditions: discovery of new matter, error apparent, or other sufficient reason, and absence of unreasonable delay. It found the parties did not dispute that the Plaintiff had not paid the full purchase price, the Applicants had not executed the sale agreement, and the title was unavailable. Following Shanzu Investments, 'sufficient reason' need not be analogous to the other grounds. However, since the sale to the Plaintiff was agreed and court-ordered, and the Plaintiff had paid a deposit, only interest adjustment was warranted.
Whether the purchase price should be re-valued to current market value
No - interest on the purchase price adequately compensates the Applicants for the changed value
The court acknowledged the property's appreciation but held that review should be limited to the purchase price aspect, and that interest at court rates from 28th July 2008 until payment in full, offset by rent paid, would adequately compensate the estate for the delay. This preserved the agreed sale to the Plaintiff while protecting the beneficiaries.
Legal principles established
#- The ground of 'any other sufficient reason' in Order 45 Rule 1 need not be analogous with the other enumerated grounds for review
- A review may be granted where changed circumstances caused by delay in payment of a purchase price justify variation of the order to compensate the party entitled
Court orders
#- 1.That the Plaintiff shall pay a purchase price for the premises known as House No. 134 situate on L.R 209/10530/121 Siwaka Estate of Kshs 6,250,000/=, with interest on the purchase price at court rates with effect from 28th July 2008 until payment in full, subject to any rent paid by the Plaintiff from 1st August 2008 to the date of payment of the purchase price in full being offset against the interest due
- 2.The Plaintiff and Defendants shall forthwith execute a sale agreement which shall include the term on the purchase price and interest payable as ordered by the Court in order 1 herein above
- 3.The other prayers sought in the 1st and 2nd Defendants' Notice of Motion dated 29th October 2013 are hereby denied, and the costs of the said Notice of Motion shall be in the cause
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Anthony Francis Wareham v Brian John Hawkes & another [2014] KEELC 161 (KLR)", Case Analysis (2014). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/161/eng@2014-08-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.