Michael Ndungu Mbugua & 2 others v Cecilia Wanjiru Cooper & another [2018] KEELC 2216 (KLR)
The bottom line
#A Mombasa court forced a land seller to complete a sale after she tried to back out for a higher offer from another buyer.
What this practically means
#Executive summary
#Key legal issues
#Whether the sale agreement dated 7th July 2010 was breached and by whom
Both the Plaintiffs and the 1st Defendant were in breach of the agreement, time having been made of essence.
Clause D required the vendor to deliver completion documents upon receipt of the full purchase price, and the Plaintiffs had not paid in full by the 90th day. Clause 6 made time of the essence, with extension only by mutual written agreement; none was produced. On her side, the 1st Defendant did not avail the completion documents listed under clause D (a)-(h) within the 90 days, the subdivision grants being registered only in June 2011.
Whether the orders of specific performance sought in the plaint were available to the Plaintiffs
The Plaintiffs were entitled to specific performance of the agreement in respect of plot No. MN/1/17640, being the only subdivision measuring an 1/8 acre.
Although both parties breached, the conduct of both showed an intention to extend time: the Plaintiffs continued part payments after the 90th day which the 1st Defendant accepted, and she delivered deed plans and left the mother title with the Plaintiffs' advocate after the lapse. Her attempted rescission of 2nd August 2011 came too late and after she had agreed to sell to the 2nd Defendant for a higher price. Of the subdivisions created, only plot 17640 measured the agreed 1/8 acre (0.05 ha).
Whether the 1st Defendant had capacity to sell given joint ownership with her late husband
She had capacity; the husband's interest had reverted to her on his death by operation of law.
The register recorded the husband's death in 1999, so at execution of the agreement the whole registered interest vested in the 1st Defendant as surviving joint tenant. The court rejected the argument that consent of the deceased co-owner was needed, noting it could neither be given nor refused.
Fate of the 2nd Defendant's counter-claim based on his purchase for value without notice
The counter-claim was dismissed because there was no privity of contract with the Plaintiffs and the 2nd Defendant brought no claim against the 1st Defendant.
The 2nd Defendant's grievance lay against the 1st Defendant, who sold him the very portion she had already sold to the Plaintiffs. Having sued only the Plaintiffs, against whom he had no contract, the counter-claim could not be sustained despite his contention that he was a purchaser for value without notice.
Legal principles established
#- A court will not rewrite a contract for parties unless coercion, fraud or undue influence are pleaded and proved
- A party who by conduct or words leads another to believe he may safely act is not allowed to go back on what he said or done (estoppel by conduct)
- A vendor who, despite an alleged breach, continues to receive part payments and perform the transaction is estopped from later rescinding the agreement, particularly where she does so to accept a higher offer
- Upon joint ownership, the interest of a deceased joint proprietor automatically reverts to the surviving joint tenant
Court orders
#- 1.Judgment entered for the plaintiffs as per prayer (a) of the plaint - an order of specific performance of the sale agreement dated 7th July 2010, compelling the 1st Defendant to avail the completion documents including a duly executed transfer for plot no. MN/1/17640 within thirty days of the order
- 2.Judgment as per prayer (b) of the plaint - in default of compliance, the Deputy Registrar of the court to execute a transfer of Plot No. MN/1/17640 in favour of the Plaintiffs and cause its registration and issuance of title
- 3.Dismissal of the 2nd Defendant's counter-claim
- 4.Each party to bear their respective costs of the suit
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a dispute relating to title to land (plot MN/1/17640 excised from subdivision No. 1435 Section 1 Mainland North)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- NASSOR MOHAMED NAHDY v ABDALLA AHMED OMAR[2012] KEHC 1677 (KLR)16 Oct 2012
- MARGIT SOMMER CHARO v ISAAC NJUGUNA NJOROGE[2012] KEHC 5775 (KLR)6 Sept 2012applied
Cite this brief
#Cite this brief
Caselaw, "Michael Ndungu Mbugua & 2 others v Cecilia Wanjiru Cooper & another [2018] KEELC 2216 (KLR)", Case Analysis (2018). Not stated in the judgment as extracted. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2216/eng@2018-08-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.