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ELCPartially AllowedNot stated in the judgment· [2016] KEELC 1278 (KLR)

James Njoroge Kung’u v Michael Kariuki Kibui [2016] KEELC 1278 (KLR)

High Court of Kenya
16 September 2016
MGMary M. Gitumbi
1,653 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land buyer got his Kshs. 440,800 deposit refunded after the seller sold family land he did not yet own.

What this practically means

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Executive summary

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By a plaint dated 28th May 2010, the Plaintiff sued the Defendant over a sale agreement dated 8th February 2010 for the purchase of Dagoretti/Riruta/3255 for Kshs. 1,250,000/-. He paid a deposit of Kshs. 300,000/- and a further Kshs. 140,800/-, totalling Kshs. 440,800/-, but the Defendant failed to transfer the property within the contractual 90 days. He sought a refund, or alternatively specific performance, plus general damages and costs. The Defendant admitted receiving the money but contended that Kshs. 140,800/- was a soft loan; he explained that the property was registered in the name of his deceased father, Lawrence Kibui Kariuki, that letters of administration were still pending, and that some of the 10 beneficiaries resided abroad, stalling completion. The court framed three issues: refund or specific performance, general damages, and costs. On the first, it relied on the Defendant's admission of receipt and his stated willingness to refund, ordering repayment of Kshs. 440,800/- within 60 days. Specific performance was refused as an order in vain: the agreement was frustrated because the Defendant undertook to sell property that was not his, with administration incomplete and no assurance he would become sole owner. General damages were denied, the court applying the Court of Appeal authority that general damages are unavailable for breach of contract. The claim succeeded only in part; costs were awarded to the Plaintiff. Judgment was delivered on 16th September 2016 by Mary M. Gitumbi J.

Key legal issues

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01

Refund of the Kshs. 440,800/- paid under the sale agreement

Holding

The Defendant admitted receiving Kshs. 440,800/- and being willing to refund it; the court relied on the admission and ordered a refund within 60 days.

Reasoning

The Plaintiff claimed he paid Kshs. 440,800/- towards the purchase price. The Defendant admitted receipt of the whole sum, contending only that Kshs. 140,800/- was a soft loan, but conceded in testimony that he was willing to refund the entire amount. The court held it could rely on that admission to find the Defendant owes the Plaintiff the full sum and ordered refund within 60 days.

p. 3
02

Specific performance of the sale agreement

Holding

Specific performance refused as an order in vain because the Defendant sold property registered in his deceased father's name, with administration incomplete and 10 beneficiaries.

Reasoning

The parties contracted knowing the suit property was registered in the Defendant's late father's name. Letters of administration were still pending and the Defendant could not say when they would issue. With 10 beneficiaries, there was no assurance the Defendant would end up sole owner after distribution. The agreement was therefore frustrated because the Defendant undertook to sell what was not his.

p. 3
03

Claim for general damages

Holding

Dismissed; general damages are not recoverable for breach of contract.

Reasoning

The suit was premised on breach of the sale agreement dated 8th February 2010. Relying on the Court of Appeal decision in Joseph Ungadi Kedera v. Ebby Kangisha Kavai (Kwach, Lakha & Owuor JJ.A), the court held that general damages cannot be awarded for breach of contract, and the Plaintiff's claim for general damages therefore failed.

p. 3

Legal principles established

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  • There can be no general damages for breach of contract.
  • A party who admits receipt of a sum may be held liable on that admission, and specific performance will not issue where the vendor does not own the property and completion is impossible.

Court orders

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  1. 1.The Defendant is ordered to refund Kshs. 440,800/- to the Plaintiff within 60 days from the date of delivery of the Judgment.
  2. 2.The order of specific performance of the sale agreement dated 8th February 2010 is refused.
  3. 3.The claim for general damages is dismissed.
  4. 4.The costs of the suit are awarded to the Plaintiff.

Authorities

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Cases cited (1)

  • Joseph Ungadi Kedera v. Ebby Kangisha Kavai (Personal Representative of Ephraim Kavai Deceased)
    Kisumu Civil Appeal No. 239 of 1997 (unreported)
Jurisdiction invoked
Original civil jurisdiction over the contract claim in the plaint dated 28th May 2010 (specific provision not stated in the judgment)

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, "James Njoroge Kung’u v Michael Kariuki Kibui [2016] KEELC 1278 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1278/eng@2016-09-16

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