Anthony Kibetu Munene v Richard Kiprono Tarus [2018] KEELC 878 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Who breached the agreement dated 11/6/2012?
Neither party breached the agreement; the failure to complete the transaction over 1.5 acres was attributable to a mutual mistake, as the agreement contained no timelines for the survey exercise, and the defendant failed to put the plaintiff into possession of the 1.5 acres
The court examined Clause 7 (time of the essence) and Clause 2(b), which set a payment date without conditioning the second instalment on the defendant availing a surveyor. The plaintiff admitted not paying by the due date, weakening his breach claim. However, the agreement omitted timelines for the survey and demarcation of the 1.5 acres. Applying the law on mutual mistake from Lafey Construction, the court classified the parties' oversight as a mutual mistake, holding both parties equally to blame and neither in breach.
What orders should issue?
Specific performance was granted only in respect of the 3 acres already demarcated, occupied and developed by the plaintiff, upon payment of a reduced balance of Kshs. 2,200,000/=; the Kshs. 300,000/= claim was not allowed as part of the purchase price
The court found partial performance possible because the 3 acres were already demarcated and the defendant had put the plaintiff into possession and ceded them peacefully. The defendant had also offered to settle on the basis of the 3 acres only. Ordering completion in respect of the occupied portion was held proper, with the plaintiff paying the outstanding balance for the occupied land, and each party bearing their own costs.
Whether the payment of the second instalment was conditional on the defendant availing a surveyor
Clause 2(b) did not require the defendant to avail a surveyor before payment of the second instalment; the survey fees clause only provided for equal sharing of fees, so the plaintiff's demand for a surveyor before payment was not supported by the agreement
The court found the only clause addressing survey was Clause 6 on shared survey fees. Clause 2(b) simply fixed a payment date without any precondition of a surveyor being availed. The court held the parties' failure to stipulate survey timelines was a mistake of both parties, as only one advocate acted for them, and refused to interpret the clauses so as to place the survey obligation before payment.
Legal principles established
#- Where terms of a written agreement are clear they must be applied as they are binding, and it is not for a court to rewrite an agreement between the parties
- A mutual mistake regarding a fundamental term renders that part of the contract incapable of performance, and neither party can be blamed more than the other
- A contract may be capable of partial performance where part of the transaction has been completed, such as where the purchaser has taken possession of a demarcated portion
Court orders
#- 1.An order of specific performance compelling the defendant, upon payment of the balance of purchase price of Kshs. 2,200,000/= for the 3 acres occupied by the plaintiff, to execute all documents necessary to effect transfer of the 3 acre portion occupied by the plaintiff to the plaintiff
- 2.In default of the defendant executing the transfer documents, the Deputy Registrar of the court to execute all such documents as will effect the transfer of the 3 acres to the plaintiff
- 3.Each party shall bear their own costs of the suit
- Jurisdiction invoked
- Original civil jurisdiction over a claim for specific performance of a contract for sale of land
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Anthony Kibetu Munene v Richard Kiprono Tarus [2018] KEELC 878 (KLR)", Case Analysis (2018). Suit as per plaint dated 30th May, 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/878/eng@2018-11-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.