Zachariah Njenga Kamiti & another v Development Investments Limited & 2 others [2018] KEELC 935 (KLR)
The bottom line
#Buyers of subdivided plots in Kasarani lost their land claim because they sued the wrong party — their contracts bound only the middleman who never completed its own purchase.
What this practically means
#Executive summary
#Key legal issues
#Privity of contract between the Plaintiffs and the 1st Defendant
The court upheld the 1st Defendant's defence of want of privity; the Plaintiffs had no contractual relationship with the 1st Defendant and could not enforce any claim against it.
The Plaintiffs contracted only with the 2nd Defendant, who had not completed its purchase of L.R. No. 11329 from the 1st Defendant. The sale agreement of 5/8/2005 restricted assignment without the vendor's written consent, and no evidence established that the full purchase price was paid or that the 1st Defendant consented to the sub-sales. Only upon completion and subdivision could the 2nd Defendant have transferred the plots. The Plaintiffs' remedy was therefore against the 2nd Defendant alone.
Specific performance of the Plaintiffs' sale agreements with the 2nd Defendant
Specific performance was declined because the 2nd Defendant could not convey what it had not acquired; it ought first to have completed the purchase from the 1st Defendant.
The court noted that no evidence proved the entire Kshs. 45 Million purchase price was paid under the 5/8/2005 agreement, and that the property had been transferred to the 3rd Defendant on 3/6/2011. The 2nd Defendant ought to have pursued specific performance of its own agreement before it could transfer plots to the Plaintiffs. The court expressed surprise that the 2nd Defendant never sued the 1st Defendant for specific performance.
Legal principles established
#- A purchaser from a party who has not completed purchase of the parent land cannot enforce rights against the registered owner of that land in the absence of privity of contract; the claim lies against the party with whom the buyer contracted.
Court orders
#- 1.The orders sought in the plaint were declined (suit dismissed)
- 2.The Plaintiffs were awarded the costs of the suit, to be borne by the 2nd Defendant
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a dispute relating to land (plots arising from L.R. No. 11329, Kasarani, Nairobi)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Zachariah Njenga Kamiti & another v Development Investments Limited & 2 others [2018] KEELC 935 (KLR)", Case Analysis (2018). E.L.C. Case No. 58 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/935/eng@2018-10-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.