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ELCDismissedELC Case No. 434 of 2012· [2017] KEELC 1212 (KLR)

Japeth Anami Ngaira v Catherine Khakasa Cheng’oli [2017] KEELC 1212 (KLR)

Environment & Land Court of Kenya
28 September 2017
EOE. O. Obaga
1,235 words in judgment
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The bottom line

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A Kenyan buyer who hadn't fully paid for a flat lost his court case because you can't demand a sale be completed while you're still breaking the contract.

What this practically means

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Executive summary

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The plaintiff sued for specific performance of an agreement dated 26th August 2010 by which the defendant agreed to sell him flat number E on 2nd floor of Block MF-2 on LR No. 25980 at Madaraka Estate, Nairobi, for Kshs.3,800,000/=. The defendant had earlier contracted to buy the flat from the National Housing Corporation, with a mortgage facility from Savings and Loan (K) Limited that was never taken up. The plaintiff sought specific performance, eviction and mesne profits of Kshs.20,000/= per month. He claimed to have paid Kshs.1,440,000/= directly to NHC on the defendant's behalf and the balance to the defendant. The defendant contended the plaintiff breached the completion date of 31st January 2011, and alleged a subsequent agreement at a meeting with a third party requiring an extra Kshs.400,000/= by 31st December 2011, which was unpaid; she offered to refund the purchase price. The court found the agreement existed but that the plaintiff paid only Kshs.2,320,000/= of the Kshs.2,360,000/= due to the defendant, two Kshs.20,000/= receipts being advocate's legal fees deposits rather than contractual payments. Applying Wambugu v Njuguna (1983) KLR 172, the court held a party in breach cannot obtain specific performance. The alleged variation increasing the price by Kshs.400,000/= was not proved, being supported only by unsigned minutes with no deed of variation. The plaintiff's suit was dismissed with costs to the defendant on 28th September 2017.

Key legal issues

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01

Whether the plaintiff breached the sale agreement of 26th August 2010

Holding

The plaintiff breached the agreement by failing to pay the full balance of Kshs.2,360,000/=, leaving Kshs.40,000/= unpaid

Reasoning

The agreement required the plaintiff to pay Kshs.1,440,000/= to NHC and Kshs.2,360,000/= to the defendant. Banker's cheques and receipts showed payment of only Kshs.2,320,000/= to the defendant. Two receipts of Kshs.20,000/= each were for legal fees deposit, not payment under the agreement. The plaintiff also conceded in cross-examination that he was in breach of the payment timelines.

p. 2
02

Whether the purchase price was increased by Kshs.400,000/= at an alleged meeting

Holding

No such agreement to increase the price was proved

Reasoning

The defendant relied on unsigned minutes of an alleged tripartite meeting. The court found no credible evidence of the meeting and reasoned that any variation should have been reduced to a signed deed of variation to the earlier agreement. In the absence of such a document, the allegation failed.

p. 2

Legal principles established

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  • A party seeking specific performance must have performed or be ready and willing to perform their own obligations under the contract; a party in breach cannot seek specific performance.
  • An alleged oral variation increasing the purchase price, unsupported by a signed deed of variation and evidenced only by unsigned minutes, cannot be established.

Court orders

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  1. 1.The plaintiff's suit is dismissed
  2. 2.Costs of the suit to the defendant
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court

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, "Japeth Anami Ngaira v Catherine Khakasa Cheng’oli [2017] KEELC 1212 (KLR)", Case Analysis (2017). ELC Case No. 434 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1212/eng@2017-09-28

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