Joseph Kahura Kaniaru & another v Samuel Kimondo Theuri [2017] KEELC 1125 (KLR)
The bottom line
#A Kenyan land seller who breached the sale agreement was forced to complete the sale and lost his counter claim, with costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the defendant was bound by the proposed sub-division plan showing each party's portion
Yes. The defendant commissioned the surveyor, did not dispute the proposed sub-division plan, and the parties' intention was discernible from the agreement and conduct; the rocky portion was earmarked for the second plaintiff for ballast extraction
The court ascertained the parties' intention from the sale agreement of 21 September 2011, the deed of variation of 27 February 2012 and the parties' conduct. The defendant commissioned the surveyor whose sketch indicated each party's portion and did not dispute it. The second plaintiff paid the full purchase price and took possession of the rocky portion consistent with its purpose of mining ballast. The defendant's later repudiation of the plan could not defeat the clear outward expression of intention.
Whether the defendant could invoke section 94 of the Land Registration Act, 2012 to have the land partitioned as tenants in common
No. The registration of the 50 acres in the names of the defendant and first plaintiff as tenants in common was effected without agreement and in breach of the sale agreement, so section 94 could not be invoked to undo the contract
The court found no agreement that the 50 acres be registered in the joint names of the defendant and first plaintiff; that registration on 27 March 2014 was itself a breach of the agreement to transfer 25 acres to the second plaintiff. Since the defendant caused the joint registration in breach, he could not rely on section 94 to partition the land as tenants in common, as that would take the plaintiffs back to square one and reward his own breach.
Whether the plaintiffs proved their claim and whether the defendant proved his counter claim
The plaintiffs proved their case on a balance of probabilities and were granted prayers (b) and (c); the defendant failed to prove his counter claim
There was no contention that a sale agreement existed and was varied to 25 acres with full payment. The evidence showed the defendant breached the agreement by registering the whole 50 acres jointly with the first plaintiff and attempting to sell the rocky portion shown to the plaintiffs. The defendant conceded the rocky portion was more valuable. No evidence showed the deed of variation resulted from the second plaintiff's inability to purchase 50 acres. The claim therefore succeeded and the counter claim failed.
Legal principles established
#- A contracting party who fails to perform his part of the contract cannot obtain an injunction to restrain a breach of covenant by the other party as that would be inequitable
- It is the court's duty to give effect to the intention of the parties, discerned from the documents and their conduct, however onerous the contract
- A party cannot escape a concluded contract by asserting a private intent contrary to his outward words and conduct
Court orders
#- 1.Judgment entered for the plaintiffs in terms of prayers (b) and (c) of the plaint, being a permanent injunction restraining the defendant from interfering with the original sub-division plan to LR No. 8914/2A now registered as LR No. 8914/6 and specific performance directing the defendant to transfer 25 acres out of LR No. 8914/6 to the plaintiffs
- 2.Dismissal of the defendant's counter claim with costs to the plaintiffs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act over disputes relating to land (sale and subdivision of LR No. 8914/12, Ngelani Ranching Unity)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Esther Nyambura Kariuki v Simeon Muthuku Munjuga [2018] KEELC 3307 (KLR)[2018] KEELC 3307 (KLR)25 Apr 2018
Cite this brief
#Cite this brief
Caselaw, "Joseph Kahura Kaniaru & another v Samuel Kimondo Theuri [2017] KEELC 1125 (KLR)", Case Analysis (2017). ELC Case No. 996 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1125/eng@2017-09-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.