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ELCDismissedELC. Case No. 2315 of 2007· [2018] KEELC 2038 (KLR)

Salim Hussein Dungarwalla v Uzima Press Limited & 2 others [2018] KEELC 2038 (KLR)

Environment and Land Court of Kenya
4 July 2018
KBK. Bor
4,296 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Nairobi buyer lost his land suit because he couldn't prove an altered contract or show he could pay the balance.

What this practically means

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Executive summary

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The Plaintiff entered into a sale agreement with the 1st Defendant on 23/6/2005 for the purchase of L.R. No. 1870/X/24 in Westlands, Nairobi, for Kshs. 27 million, paying a deposit of Kshs. 2.7 million. He obtained extensions of time to complete and then sought to assign his rights to the 2nd Defendant for Kshs. 47 million. The 1st Defendant rescinded the agreement in May 2007, alleging the Plaintiff had fraudulently altered the purchase price to Kshs. 37 million, and thereafter sold the property to the 2nd Defendant for Kshs. 40 million. The Plaintiff sued for a declaration that the agreement was valid, specific performance through a transfer in his favour, and injunctions restraining dealings with the property. The 1st Defendant counterclaimed for a declaration that the agreement was voided by the Plaintiff's fraud and that the transfer to the 2nd Defendant was valid. The court heard the Plaintiff's advocate, the 1st Defendant's General Manager and the 2nd Defendant's director. It found the Plaintiff produced no evidence of the terms of his deed of assignment and did not controvert the evidence of the altered agreement; the deed of assignment showing Kshs. 37 million was the only one in existence. The Plaintiff also failed to prove readiness, ability and willingness to pay the balance, defeating his claim to specific performance. The suit was dismissed, prayers (a) and (b) of the 1st Defendant's counterclaim were allowed, and, because the deposit of Kshs. 2.7 million was never refunded, each party was ordered to bear its own costs.

Key legal issues

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01

Validity of the rescission of the sale agreement dated 23/6/2005

Holding

The agreement was validly rescinded by the 1st Defendant

Reasoning

The court found that the altered deed of assignment showing Kshs. 37 million as the consideration was the only deed of assignment in existence, and the Plaintiff did not controvert the 2nd Defendant's evidence of misrepresentation. The 1st Defendant was therefore entitled to rescind under Clause 8 of the Special Conditions upon the purchaser's default/fraud.

p. 4
02

Entitlement to specific performance

Holding

Specific performance was refused because the Plaintiff was not ready, able and willing to complete

Reasoning

The Plaintiff conceded he could not raise the balance of the purchase price and never paid it or gave an undertaking; his advocate confirmed the balance had not been paid. A party seeking equity must show readiness, willingness and ability to comply, which the Plaintiff failed to do.

p. 4

Legal principles established

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  • A party seeking specific performance must show that it is ready, willing and able to comply with the contract
  • Fraud must be specifically pleaded and distinctly proved

Court orders

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  1. 1.The Plaintiff's suit is dismissed
  2. 2.Prayers (a) and (b) of the 1st Defendant's Counterclaim are allowed
  3. 3.Each party to bear its own costs

Authorities

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Legislation

  • Registration of Titles ActSection 2 (definition of fraud)

Cases cited (5)

  • Nancy Kahoya Amadiva v Expert Credit Limited and Another
    [2015] eKLR
  • Vijay Morjaria v Nansingh Madhusingh Darbar & Hulashiba Nansingh Darbar
    [2000] eKLR
  • Halling Manzoor v Serwan Singh Baram, Civil Appeal No. 9 of 2001
    null
  • Gurdev Singh Birdi & Marinder Singh Ghatora as Trustees of Ramgharia Institute of Mombasa v Abubakar Madhubuti, Civil Appeal Number 165 of 1996
    null
  • Nabro Properties Limited v Sky Structures Limited and 2 others
    [2002] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a dispute relating to a contract for the sale of land

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, "Salim Hussein Dungarwalla v Uzima Press Limited & 2 others [2018] KEELC 2038 (KLR)", Case Analysis (2018). ELC. Case No. 2315 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2038/eng@2018-07-04

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