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ELCAllowedLand Case No. 69 of 2015· [2016] KEELC 853 (KLR)
Patrick Kundu Wepukhulu v David Malenya [2016] KEELC 853 (KLR)
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·~2 min to read original · ~4 min briefThe bottom line
#A Kenyan court cancelled a land sale agreement and ordered eviction because the buyer never paid the balance on time.
What this practically means
#Executive summary
#The Plaintiff sued for rescission of a sale agreement dated 23/10/2004 under which the Defendant agreed to buy the Plaintiff's quarter-acre plot at Namanjalala in Trans-Nzoia County, with improvements, for Kshs 120,000/-. The Defendant paid Kshs 50,000/- on signing, with the balance of Kshs 70,000/- due at the end of October 2004. The Defendant, though duly served, neither entered appearance nor filed a defence, so the suit proceeded by formal proof. The Plaintiff testified that he had bought the land from David Malaba, a shareholder of Trans-Nzoia Investment Company Limited, and that the Defendant refused to clear the balance despite intervention by the area chief and the Catholic Diocese of Kitale's Justice and Peace office, whose letter of 2/5/2006 showed a balance of Kshs 25,000/- still outstanding. The court found the evidence uncontroverted, held that the fixed payment date made time of the essence, and that the Defendant, who had rented out rooms on the property and derived income from it while refusing to pay, was clearly in breach. The Plaintiff's claim was allowed: the agreement of 23/10/2004 was rescinded, the Defendant was ordered evicted from the quarter plot, and the Defendant was ordered to pay the costs of the suit. Judgment was delivered at Kitale on 10th May 2016 by E. Obaga, Judge.
Key legal issues
#01
Breach of contract for sale of land
Holding
The Defendant was in breach for failing to clear the balance of the purchase price, entitling the Plaintiff to rescission
Reasoning
The agreement fixed payment of the balance for the end of October 2004, making time of the essence. The uncontroverted evidence showed the Defendant refused to pay, despite renting out rooms on the property and deriving income from it. A party unwilling to complete his part of the bargain cannot complain when the vendor seeks rescission.
p. 2
Legal principles established
#- Where a purchaser fails to pay the balance of the purchase price within the agreed time, time being of the essence, the vendor is entitled to rescission of the agreement
Court orders
#- 1.Rescission of the agreement of 23/10/2004
- 2.Eviction of the Defendant from the quarter plot which was the subject of the rescinded agreement
- 3.Costs of the suit to be paid by the Defendant
- Jurisdiction invoked
- Environment and Land Court jurisdiction over land disputes (suit for rescission of land sale agreement and eviction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Patrick Kundu Wepukhulu v David Malenya [2016] KEELC 853 (KLR)", Case Analysis (2016). Land Case No. 69 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/853/eng@2016-05-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.