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ELCPartially AllowedPlaintiff's plaint dated 13th June, 2011 (Mombasa)· [2018] KEELC 1841 (KLR)

Nabhan Swaleh Salim v Rhoda Ndivo [2018] KEELC 1841 (KLR)

Environment and Land Court
25 September 2018
CYC. Yano
3,822 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A Kenyan court forced a Mombasa land seller to complete a sale because payments made to her own lawyers counted as payment to her.

What this practically means

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Executive summary

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The plaintiff, an advocate, sued for specific performance of an agreement for sale dated 14th June 2007 over leasehold property Mombasa/Block XI/613 for Kshs.7,500,000/=. He claimed he paid the deposit and the balance of the purchase price to the defendant's advocates, Omondi Waweru & Co. Advocates, before the 90-day completion date, but the defendant purported to rescind by letter dated 8th October 2007. The defendant admitted the agreement but contended she never received the deposit or purchase price, that the money was paid to her advocates without instructions, and that the property was now worth far more, so that ordering specific performance would occasion her substantial loss. The trial, commenced before Justice Mukunya, heard the plaintiff, a partner in the defendant's advocate firm, the estate agent, the defendant and her husband. The court framed three issues: agency, authority to receive the consideration, and whether payment was made before rescission. It held that under the incorporated Law Society Conditions of Sale the vendor's advocate was the vendor's agent with authority to receive the consideration; the deposit, payable directly to the defendant, was paid instead to her advocates, but this was a trivial, non-essential breach that could not justify unilateral rescission. The defendant's claim of increased property value was immaterial absent pleaded fraud, coercion or undue influence. The court entered judgment for the plaintiff: specific performance within 45 days, execution by the Deputy Registrar in default, general damages of Kshs.1,000,000, and costs to the plaintiff.

Key legal issues

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01

Whether Omondi Waweru & Co. Advocates were the defendant's agents with authority to receive the purchase price

Holding

The firm was the defendant's agent with authority to receive the consideration sums other than the deposit, which was to be paid directly to the defendant; however, payment of the deposit to the agent was only a trivial breach

Reasoning

Clause 4 of the sale agreement incorporated the Law Society Conditions of Sale (1989 Edition), under which the vendor's advocate is the vendor's agent entitled to receive both deposit and balance. The agreement expressly directed the deposit to the defendant personally but was silent on the balance; clause 7 placed completion at the vendor advocate's office. The court concluded the advocates had authority to receive the balance, and that payment of the deposit to them was a non-essential breach.

p. 4
02

Whether the plaintiff paid the consideration before the notice to rescind issued on 8th October 2007

Holding

The plaintiff paid both the deposit and the balance on time to the defendant's advocates, who acknowledged receipt; the defendant's failure to collect from her advocates could not defeat the contract

Reasoning

PW2, a partner in Omondi Waweru & Co. Advocates, confirmed receipt of the full purchase price on behalf of the defendant before the completion date. The defendant did not deny executing the agreement or that the price was paid. The court held it was up to the defendant to demand release of the payment from her advocates, and that her rescission came only after the balance had been tendered.

p. 4
03

Whether the defendant could resist specific performance on the ground that the property had risen in value

Holding

No; the defendant did not plead coercion, fraud or undue influence, and the rise in value is immaterial to enforcement of the contract

Reasoning

The court relied on the principle that equity will not relieve a party from a bad bargain. The language of the agreement was plain and unambiguous, and the defendant never alleged that she was coerced, induced or fraudulently made to sign. Specific performance is based on the existence of a valid enforceable contract, which was not disputed.

p. 4

Legal principles established

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  • The vendor's advocate under the Law Society Conditions of Sale is the vendor's agent with express authority to receive the deposit and the balance of the purchase price on the vendor's behalf, unless the contract expressly directs otherwise
  • A trivial or non-essential breach, such as paying the deposit to the vendor's authorized agent rather than the vendor personally, does not entitle the vendor to unilaterally avoid the contract
  • A court cannot rewrite a contract between parties; parties are bound by their bargain absent coercion, fraud or undue influence, and a rise in the value of the property is immaterial

Court orders

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  1. 1.An order of specific performance directed to the defendant to sign all the relevant transfer forms and supply completion documents to facilitate transfer of MOMBASA/BLOCK XI/613 into the plaintiff's name within 45 days
  2. 2.In default, the Deputy Registrar of the court to execute all relevant documents to facilitate transfer and registration of MOMBASA/BLOCK XI/613 into the plaintiff's name upon expiry of the 45 days
  3. 3.The plaintiff is awarded Kshs.1,000,000/= as general damages
  4. 4.The defendant shall pay the costs of the suit

Authorities

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Legislation

  • Law Society Conditions of Sale1989 Edition, condition 3 and condition 2(9)

Cases cited (6)

  • Rithos –v- Karithi and Another
    (1988) KLR 237
  • Reliable Electrical Engineers Ltd –v- Mantrac Kenya Ltd
    (2006) eKLR
  • Bir Singh –v- Parmar
    (1971) EA 209
  • Dyster –v- Randall & Sons
    (1926) Ch. Div. 932
  • National Bank of Kenya Ltd –v- Samcroft Ltd & Another
    (2002) EA 503
  • Fina Bank Ltd –v- Spares and Industries Ltd
    (2000) IEA 52
Jurisdiction invoked
Original civil suit on contract for sale of land (plaint dated 13th June, 2011); no specific constitutional/statutory provision stated

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Nabhan Swaleh Salim v Rhoda Ndivo [2018] KEELC 1841 (KLR)", Case Analysis (2018). Plaintiff's plaint dated 13th June, 2011 (Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1841/eng@2018-09-25

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