Eunice Nyambura Irungu v Libey Njoki Munene & 4 others [2018] KEELC 9 (KLR)
The bottom line
#The Environment and Land Court ordered a Thika property returned to the original buyer, cancelling a later transfer made while the dispute was in court.
What this practically means
#Executive summary
#Key legal issues
#Whether both the deceased and the 4th defendant executed the sale agreement dated 25/11/2004
Both executed the agreement; the 4th defendant admitted in evidence that he signed it, and there was no claim of forgery in his evidence-in-chief.
The amended defence of the administrators admitted that both the deceased and the 4th defendant offered the property for sale. The 4th defendant, though pleading forgery, testified that he signed the papers presented to him by Dr Munene and never claimed in his evidence-in-chief that his signature was forged. The court therefore found execution proved.
Whether the plaintiff fulfilled her obligations under the agreement
The plaintiff paid the Kshs.1,000,000/= deposit; her failure to pay the balance was attributable to the vendors' failure to deliver possession.
Execution of the agreement evidenced payment of the deposit, and no evidence disproved the bankers cheque. Clause C entitled the plaintiff to immediate possession; the evidence showed the land had structures and tenants controlled by the deceased through his manager, so it was not open land. Vacant possession was never given, so the vendors, not the plaintiff, were in breach.
Whether the administrators were obliged to honour the 2004 sale agreement
Yes; the administrators stepped into the deceased's shoes and could only properly complete the transaction with the plaintiff.
Clause A of the special conditions did not envisage automatic rescission on default. The caveat registered on 6/10/2005 showed the plaintiff's intent to proceed. The agreement with the 5th defendant came after a valid agreement with the plaintiff, and the administrators could only proceed with the transaction that was proper, namely completion of the 2004 sale.
Whether the exercise of the chargee's statutory power of sale was lawful
No; the sale of the whole parcel was premature, the statutory notice was issued after the transfer, and no account of indebtedness was ever provided, rendering the exercise irregular.
The deceased executed a transfer of the whole land to the 5th defendant on 13/3/2007 to the exclusion of the 4th defendant and before the statutory notice of 14/10/2008. The chargor had demanded a breakdown of the alleged debt which was never supplied, so the notice period could not continue running. The statutory power of sale had not crystallised.
Whether the transfer by the administrators to the 5th defendant was lawful or fraudulent
The transfer was fraudulent and illegal; it was executed pendente lite, founded on misrepresentations, done by private treaty, and involved a beneficiary of the estate as a director of the purchaser.
The deceased misrepresented that the plaintiff had not paid the deposit and had lost interest; the 5th defendant knew of the plaintiff's transaction. The transfer occurred after the suit was filed, invoking lis pendens, and the subdivision was concealed. A beneficiary, Kenneth Kahiga Munene, was a director of the purchaser and never testified to rebut the allegations. Private treaty rather than auction denied the administrators the benefit of doubt.
Legal principles established
#- A court cannot rewrite a contract between the parties; the parties are bound by its terms unless coercion, fraud or undue influence are pleaded and proved
- A purchaser of property pendente lite does so at his own risk and is bound by the judgment in the suit even without notice of it
- Fraud must be distinctly alleged and distinctly proved to a standard above a balance of probabilities
- A chargee who fails to provide a breakdown of the indebtedness demanded during the notice period cannot regularly exercise the statutory power of sale
Court orders
#- 1.A declaration that the transfer dated 22nd December 2009 between the 1st, 2nd and 3rd defendants and the 5th defendant and all consequential entries on the title, including any subdivisions, are null and void
- 2.An order directing the Chief Land Registrar to cancel the entry registering the transfer dated 22nd December 2009 and all consequential entries or subdivisions
- 3.A declaration that the plaintiff has a purchaser's interest in LR 7699/2 pursuant to the agreement dated 25th November 2004
- 4.A declaration that the plaintiff is entitled to vacant possession, to be delivered by the 1st to 5th defendants within 14 days
- 5.An order that the plaintiff shall pay the administrators the balance of purchase price of Kshs.10,000,000/= within 7 days of delivery of possession
- 6.An order that the administrators shall hold such sums in trust for the 4th defendant as he is entitled to
- 7.An order that in default of payment within the stipulated time the agreement dated 25th November 2004 shall be deemed automatically rescinded
- 8.A mandatory injunction directed at the 1st, 2nd and 3rd defendants for specific performance of the agreement dated 25th November 2004 including handing over possession
- 9.A mandatory injunction directed at the 1st, 2nd, 3rd and 4th defendants to execute all necessary completion documents
- 10.A permanent injunction restraining the defendants from disposing of or interfering with LR 7699/2
- 11.An order that the aggregate proceeds of the sale to the plaintiff be shared equally between the 1st, 2nd and 3rd defendants on the one hand and the 4th defendant on the other
- 12.An order that the costs of the suit be met by the 1st, 2nd, 3rd and 5th defendants jointly and severally
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a suit concerning land (Thika Municipality LR 7699/2)
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.
- Joshua Kathawe M’thiruaine v Jeremiah Kailemia Mirithu [2018] KEELC 2001 (KLR)[2018] KEELC 2001 (KLR)29 Aug 2018distinguished
Cite this brief
#Cite this brief
Caselaw, "Eunice Nyambura Irungu v Libey Njoki Munene & 4 others [2018] KEELC 9 (KLR)", Case Analysis (2018). Nairobi ELC No. 664 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/9/eng@2018-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.