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ELCPartially AllowedE.L.C. Case No. 844 of 2014· [2017] KEELC 1920 (KLR)

Perpetua Wangui Irimu v Bernadetta Wambui Wanyoike & another [2017] KEELC 1920 (KLR)

Environment and Land Court
19 September 2017
KBK. Bor
1,458 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court ordered sellers to complete a land sale after years of delay, but refused the buyer's claim for lost earnings.

What this practically means

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Executive summary

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The Plaintiff sued the two Defendants seeking a declaration that she is the beneficial owner of one acre to be excised from L.R. No. 74797/66, a permanent injunction, and specific performance of sale agreements dated 15th June 2012 and 29th October 2012, under which she bought one acre for Kshs. 4.5 million. She paid a deposit of Kshs. 1 million, with the balance of Kshs. 3.5 million remitted to Njeri Mburu & Co. Advocates, who acted for both parties and held the balance as stakeholders. The Defendants, though admitting the agreements, alleged that the Plaintiff paid the balance late contrary to a time-is-of-the-essence clause, denied service of a completion notice, and challenged the subdivision as irregular. The Defendants did not attend the hearing. The 1st Defendant's witness statement attributed the non-completion to survey errors she was in the process of correcting. The Plaintiff's attorney testified, producing payment evidence, the deed plan for the Plaintiff's portion (L.R. No. 7497/82), and a completion notice dated 13th January 2014. Applying the Birdi test that a party seeking specific performance must have performed or be willing to perform its obligations, the court found the Plaintiff had performed all her obligations and that the 1st Defendant's unexplained delay in rectifying survey errors showed she was not keen to complete. The court granted prayers (b), (c), (e) and (g) of the plaint, refused damages for loss of earnings for want of proof, and awarded the Plaintiff the costs of the suit. Judgment was delivered by K. Bor, J, on 19th September 2017.

Key legal issues

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Whether the plaintiff performed her obligations under the sale agreements so as to entitle her to specific performance

Holding

The court found the plaintiff performed all her obligations: deposit paid and balance of Kshs. 3.5 million held by the stakeholders advocates, so specific performance was granted

Reasoning

The Defendants did not dispute the sale agreements. The Plaintiff proved payment of the Kshs. 1 million deposit and that the balance of Kshs. 3.5 million was held by Njeri Mburu & Co. Advocates as stakeholders. The 1st Defendant's failure to resolve survey errors over five years showed she was not keen to complete. Applying the Birdi case test, the Plaintiff had performed or was willing to perform her obligations and was entitled to the orders.

p. 3

Legal principles established

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  • A party seeking specific performance must demonstrate performance or willingness to perform all terms of the agreement and must not have contravened essential terms.

Court orders

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  1. 1.Granted prayers (b), (c), (e) and (g) of the plaint dated 23rd June 2014
  2. 2.Dismissed the claim for damages for loss of earnings
  3. 3.Plaintiff awarded costs of the suit

Authorities

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Cases cited (1)

  • Gurdev Singh Birdi and Marinder Singh Ghatora (as Trustees of Ramgharia Institute of Mombasa) V. Abubakar Madhbuti
    (1997) eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction (no specific provision cited 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, "Perpetua Wangui Irimu v Bernadetta Wambui Wanyoike & another [2017] KEELC 1920 (KLR)", Case Analysis (2017). E.L.C. Case No. 844 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1920/eng@2017-09-19

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