Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedELC Suit (Kitale), plaint dated 19th December 2011· [2018] KEELC 1641 (KLR)

Ambrose Okanga Luseno v Leonard Kibiku Masafu (Suing as personal representative of the estate of Ainea Wafula Masafu (deceased) [2018] KEELC 1641 (KLR)

Environment and Land Court
31 May 2018
2,895 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ordered an estate to transfer land to a buyer because accepting late payments and handing over possession waived the original completion deadline.

What this practically means

#

Executive summary

#
The plaintiff sued for specific performance of a written sale agreement dated 1/8/2008 by which the late Ainea Wafula Masafu sold him one acre out of Kitale Municipality Bidii Block 14/43 for Kshs. 420,000/=. He paid a down payment of Kshs. 180,000/= and further sums, took possession and developed the land, but paid in sums smaller and later than the agreed instalments. After the deceased died, his son (the defendant, as administrator) resisted the claim, arguing the plaintiff breached the agreement by failing to complete payment by December 2009, and that the agreement was void for want of Land Control Board consent since the land was agricultural. The court framed three issues: entitlement to specific performance, whether Land Control Board consent was necessary, and what orders should issue. Relying on the Court of Appeal in Lucy Njeri Njoroge v Kaiyahe Njoroge, the court held that the plaintiff's failure to complete payment could not frustrate the contract, since frustrating events must arise without fault of the parties. The deceased's conduct - accepting belated payments, granting vacant possession before completion, proposing allocation of a parcel equivalent to sums paid, and never refunding the price - waived the completion date, so time was no longer of essence. The court found an implied adjustment whereby the purchaser would have whatever he had paid for, and granted specific performance only in respect of the half acre the plaintiff occupied. On consent, the defendant bore the burden of proving the land was agricultural and failed to discharge it, so the agreement was not invalid. Final orders: specific performance of the half acre transfer (with the Deputy Registrar to sign in default), a permanent injunction protecting the plaintiff's possession of that half acre, and costs to the plaintiff.

Key legal issues

#
01

Whether time was of essence so that the plaintiff's breach invalidated the agreement

Holding

No - the defendant's conduct in accepting belated payments and putting the plaintiff into possession after the completion date waived the completion date, so time ceased to be of essence

Reasoning

The deceased accepted belated instalments for some time, granted the purchaser vacant possession of the entire parcel before full payment, proposed allocation of a parcel equivalent to sums paid rather than rescinding, and never refunded the purchase price. These acts altered the agreement and defeated any claim that the bygone completion date invalidated it. The court therefore held the plaintiff was entitled to specific performance, but only in respect of the half acre he occupied, reflecting the implied partial performance.

p. 4
02

Whether the agreement was null and void for want of Land Control Board consent

Holding

No - the defendant failed to prove the land was agricultural land within the Land Control Act; the land was said to be within Kitale Municipality

Reasoning

The plaintiff argued no consent was needed because the land lay within the municipality and there was no evidence it was agricultural land. The court accepted the proposition that the party asserting invalidity for want of consent must prove the land was agricultural land, and found the defendant had not discharged that burden, so the agreement was not invalid for want of consent.

p. 4
03

Whether the plaintiff's default frustrated the contract

Holding

No - a purchaser's failure to complete payment cannot frustrate a contract, as frustrating events must arise without fault of the parties

Reasoning

Relying on the Court of Appeal in Lucy Njeri Njoroge v Kaiyahe Njoroge, which drew on Maritime National Fish v Ocean Trawlers, Davis Contractors, Howard & Company and Bank Line v Arthur Capel, the court held that self-induced frustration cannot be relied upon, and the alleged failure to complete the purchase was not capable of frustrating the contract.

p. 3

Legal principles established

#
  • A seller who allows the purchaser into possession despite lapsed payment timelines cannot later rely on the bygone completion date to terminate the agreement; the conduct of the parties did away with the limitations as to time
  • Self-induced frustration cannot be invoked; a purchaser's own failure to complete payment is not capable of frustrating a sale contract
  • Where a party alleges a transaction was invalid for want of Land Control Board consent, the burden lies on that party to prove the land was agricultural land

Court orders

#
  1. 1.Specific performance of the agreement dated 18/8/2009 compelling the defendant to transfer the half acre piece currently occupied by the plaintiff in Land Reference No. Kitale Municipality Bidii Block 14/43 to the plaintiff, and in default the Deputy Registrar of the court to sign on behalf of the defendant all relevant documents needed for effecting the transfer
  2. 2.A permanent injunction restraining the defendant from in any manner interfering with the plaintiff's possession and occupation of the half acre portion of suit land that he occupies
  3. 3.Costs to the plaintiff

Authorities

#

Legislation

  • Land Control ActCap 302 (interpretation section, definition of agricultural land)

Cases cited (9)

  • Mangi Vs Munyiri & Anor
    1991 eKLR
  • John Miriti Kiraithe Vs Kabubura Kibururu Muchiri
    Nbi Elc 191 of 2007
  • Thrift Homes Vs Kays Investment Limited
    NBI HCCC No 1512 Of 1998
  • Lucy Njeri Njoroge v Kaiyahe Njoroge
    [2015] eKLR
  • Maritime National Fish vs Ocean Trawlers
    [1935] AC 524
  • Davis Contractors Ltd vs Farehum U.D.C.
  • Howard & Company (Africa) Ltd vs Burton
    [1964] EA 157
  • Bank Line Ltd vs Arthur Capel & Company
    [1919] AC p. 425
  • Joseph Mathenge Kamutu Vs Joseph Wainaina Karanja & Another
    Nyeri ELC No 102 Of 2014
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a dispute relating to land (sale and transfer of Kitale Municipality Bidii Block 14/43)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Ambrose Okanga Luseno v Leonard Kibiku Masafu (Suing as personal representative of the estate of Ainea Wafula Masafu (deceased) [2018] KEELC 1641 (KLR)", Case Analysis (2018). ELC Suit (Kitale), plaint dated 19th December 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1641/eng@2018-05-31

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