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ELCPartially AllowedELC Case No. 996 of 2014· [2017] KEELC 1125 (KLR)

Joseph Kahura Kaniaru & another v Samuel Kimondo Theuri [2017] KEELC 1125 (KLR)

Environment & Land Court of Kenya
27 September 2017
1,857 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 seller who breached the sale agreement was forced to complete the sale and lost his counter claim, with costs.

What this practically means

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Executive summary

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The Environment and Land Court at Milimani (Obaga J) determined a dispute over the sale and subdivision of 50 acres comprised in title No. 8914/12 of Ngelani Ranching Unity. The second plaintiff agreed on 21 September 2011 to buy 50 acres from the defendant for Kshs. 23,750,000; a deed of variation of 27 February 2012 reduced the acreage to 25, which the second plaintiff fully paid for. A surveyor commissioned by the defendant prepared a proposed sub-division sketch showing the rocky portion for the second plaintiff (which intended to mine ballast) and took possession. Unknown to the plaintiffs, the defendant had the entire 50 acres registered in his name and that of the first plaintiff (a director of the second plaintiff) as tenants in common on 27 March 2014, and later attempted to sell the rocky portion to a third party. The plaintiffs sued for a permanent injunction and specific performance; the defendant counter-claimed for partition under section 94 of the Land Registration Act, 2012 and an injunction. The court held the parties' intention, gathered from the agreement and conduct, was transfer of 25 acres, not co-ownership; the defendant's joint registration was a clear breach, and a party in breach cannot obtain an injunction or invoke section 94. Following Ripples Limited v Kamau Mucuha, Eldo City Limited v Corn Products Kenya Ltd and Storer v Manchester City Council, the court allowed the plaintiffs' suit in terms of prayers (b) and (c), dismissed the counter claim, and awarded costs to the plaintiffs.

Key legal issues

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01

Whether the defendant was bound by the proposed sub-division plan showing each party's portion

Holding

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

Reasoning

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.

p. 3
02

Whether the defendant could invoke section 94 of the Land Registration Act, 2012 to have the land partitioned as tenants in common

Holding

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

Reasoning

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.

p. 3
03

Whether the plaintiffs proved their claim and whether the defendant proved his counter claim

Holding

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

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 2.Dismissal of the defendant's counter claim with costs to the plaintiffs

Authorities

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Legislation

  • Land Registration Actsection 94

Cases cited (3)

  • Ripples Limited Vs Kamau Mucuha
    Nrb HCCC No. 4522 of 1992
  • Eldo City Limited Vs Corn Products Kenya Ltd & another
    (2013) eKLR
  • Storer Vs Manchester City Council
    (1974) 1 W.L.R 1403
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.