Paul Kipsang Kosgei & 2 others v Thomas Kprono Magut & another [2014] KEELC 272 (KLR)

Clause 6 of the agreements conditioned the sale on land control board and statutory consents. The District Physical Planner rejected the sub-division because minimum plot sizes in the area were half an acre. The failure to obtain consent was caused by planning regulations, not the vendor, so performance became impossible and the contract stood frustrated, releasing the parties.

The 3rd plaintiff gave a credible account of threats at the advocate's offices, reported the incident to police the next day, and sued within the 30-day window. The court found the document unperformable as title had passed to the plaintiffs and condemned the advocate who oversaw its execution under intimidation.

The vendor had deposited the money received from the defendants with his advocates as a refund and informed their advocates. The 1st and 2nd plaintiffs were bona fide purchasers; even knowledge of the defendants' interest would not have altered the position because the prior contract was already frustrated.

The remedy in a frustrated contract is restitution. The refund had been offered in June 2009 and was held by the advocates. The defendants unreasonably refused it, so the vendor could not be burdened with interest. The counterclaim for declarations, cancellation of title and specific performance failed entirely.