Mary Wairimu Muturi v John Wakibi Murua [2017] KEELC 2710 (KLR)
The bottom line
#A Kenyan court ordered a land seller to complete a sale because lodging survey plans alone didn't fulfil his obligation to subdivide and transfer the title.
What this practically means
#Executive summary
#Key legal issues
#Construction of the payment clause of the agreement for sale
The balance was payable either by 30th April 2007 or upon subdivision and issuance of title, at the Plaintiff's option
The agreement provided that the balance was payable on or before 30th April 2007 and/or upon subdivision and issuance of a title to the purchaser. The court held the clause, though poorly drafted, gave the Plaintiff an election, and she chose to pay upon subdivision and issuance of title. The Defendant's argument that payment was strictly due by 30th April 2007 was therefore incorrect.
Whether the Defendant fulfilled his obligations under the sale agreement
The Defendant breached the agreement; lodging Deed Plans with the Director of Surveys was insufficient
Under clause 5, the vendor was to bear the costs of and carry out the subdivision. Lodging Deed Plans alone was not enough: the plans had to be authenticated by the Director of Surveys, new certificates of title issued and a transfer executed by the Defendant before the Plaintiff's obligations arose. No evidence showed these steps were completed.
Entitlement to specific performance
Specific performance granted as the Plaintiff proved her case and was ready and willing to perform
Specific performance is discretionary. Applying the test in Gurder Singh Birdi, the Plaintiff had to show performance or willingness to perform all terms. She testified she was ready and willing to pay the balance upon transfer, and the Defendant, who gave no evidence, showed no circumstances militating against the remedy.
Legal principles established
#- For specific performance, the party seeking it must show performance of or willingness to perform all terms of the agreement and must not have contravened its essential terms
Court orders
#- 1.Judgment entered for the Plaintiff against the Defendant as prayed in paragraphs (i), (ii) and (iii) of the plaint dated 20th May 2010
- 2.The Plaintiff to pay the Defendant Kshs.200,000/= being the balance of the purchase price upon execution of the instrument of transfer of the disputed property in her favour
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to land
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mary Wairimu Muturi v John Wakibi Murua [2017] KEELC 2710 (KLR)", Case Analysis (2017). Nairobi ELC Case No. 1147 of 2010 (O.S.). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2710/eng@2017-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.