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ELCPartially Allowed· [2018] KEELC 2375 (KLR)

Anne Murambi v John Munyao Nyamu & another [2018] KEELC 2375 (KLR)

Environment and Land Court
11 July 2018
BEB M Eboso
7,098 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~28 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The dispute concerned Land Reference Number 330/403 on Riara Road, Nairobi, sold by an agreement dated 14/7/2004 executed by the defendants as attorneys of the registered proprietor, Josephine Nthambi Kioko, in favour of the plaintiff, Ann Murambi, for Kshs 6,700,000. The plaintiff paid the 10% deposit; the vendor died two days after execution; succession delayed completion beyond the 90-day completion period; the vendor's advocate nonetheless gave the plaintiff vacant possession in 2004, and she remained in occupation, paying rates and renovating the property. In 2012 the defendants' new advocates declared the agreement 'overtaken by events' and demanded vacant possession, prompting this suit for specific performance, damages and an injunction. The defendants counterclaimed for declarations that the agreement had lapsed, for mesne profits, damages and eviction. The court framed eight issues. It held that the vendor's death terminated only the attorneys' powers, not the contract, which bound the estate; that no completion or rescission notice was ever served under Clause 4(7) of the incorporated Law Society Conditions of Sale (1989 Edition) and time was not of the essence, so the contract was never terminated; that the back-dated 2005 agreement was a nullity for want of authority; that acknowledgements by the administrators and their advocate gave a fresh accrual under Section 23 of the Limitation of Actions Act, and that they held the property in trust for both parties; that the plaintiff committed no breach; and that the counterclaim was wholly unmerited, the plaintiff occupying as licensee under Condition 6(1). Specific performance was decreed, damages were refused as inequitable, and each party was ordered to bear its own costs.

Key legal issues

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01

Whether the 14/7/2004 agreement was terminated or rescinded

Holding

It was not terminated or rescinded and remains enforceable by either party

Reasoning

The defendants never served a completion/termination/rescission notice as required by Clause 4(7) of the Law Society Conditions of Sale (1989 Edition) incorporated in the contract. Time was not expressed to be of the essence, and the parties never agreed the contract would terminate on expiry of the 90-day completion period. Failure to complete within 90 days therefore did not end the contract.

p. 5
02

Whether a valid 2005 variation agreement was created

Holding

No valid contract was created in 2005

Reasoning

The defendants' powers as attorneys ceased on the vendor's death; they only acquired authority to act for the estate in 2007 upon appointment as administrators. They therefore lacked locus standi to create a binding contract on behalf of the deceased or her estate in 2005. The back-dated 2005 agreement incorporating the plaintiff's husband was a nullity.

p. 6
03

Whether the claim is statute-barred under the Limitation of Actions Act

Holding

It is not statute-barred

Reasoning

DW1's evidence and the advocates' letter of 25/2/2010 were unequivocal acknowledgements within Section 23 of the Limitation of Actions Act, giving a fresh accrual of the right of action. Further, the administrators hold the suit property in trust for both parties to the sale agreement, preserving the claim under Section 20; they cannot raise limitation against a beneficiary of that trust.

p. 7
04

Whether the plaintiff breached the contract and whether the counterclaim is merited

Holding

The plaintiff committed no breach and the counterclaim is wholly unmerited

Reasoning

The deposit was paid; the balance was payable only on delivery of completion documents which the vendor never delivered. The vendor's agent gave the plaintiff possession as licensee under Condition 6(1), no licence fee was agreed, no notice to complete or vacate issued until 2012, and the estate's own in diligence caused the delay. The estate is the author of its own predicament.

p. 7
05

Whether specific performance should be granted

Holding

Yes; specific performance rather than damages was the appropriate remedy

Reasoning

The plaintiff was in possession since 2004, had paid rates and outgoings, had renovated the property which the defendants conceded was inhabitable at the time of sale, and the entire balance of the purchase price was held in a joint interest-earning account. These circumstances commended specific performance; the equitable discretion was properly exercisable in her favour.

p. 8

Legal principles established

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  • Death of a vendor terminates the attorney's powers but not the contract executed on the vendor's behalf, which binds the estate
  • An agreement for sale of land does not lapse by effluxion of time where time was not of the essence and no completion notice was served; termination must follow the incorporated Law Society Conditions of Sale
  • A purchaser in possession before completion under Condition 6(1) of the Law Society Conditions of Sale occupies as licensee of the vendor, not as tenant
  • Fresh accrual of limitation under Section 23 of the Limitation of Actions Act arises from unequivocal acknowledgements of the contract by the personal representatives

Court orders

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  1. 1.An order of specific performance compelling the defendants to transfer Land Reference Number 330/403 to the plaintiff within 60 days
  2. 2.In default of transfer by the defendants, the Deputy Registrar of this Court shall execute all documents necessary for transfer of the suit property to the plaintiff
  3. 3.The plaintiff shall bear stamp duty and registration fees on the transfer
  4. 4.An injunction restraining the defendants from ejecting the plaintiff from the suit property
  5. 5.The defendants' counterclaim is dismissed
  6. 6.Within 14 days following transfer, the balance of the purchase price together with accrued interest shall be released to the estate through its advocates on record
  7. 7.Each party bears own costs of this suit

Authorities

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Legislation

  • Limitation of Actions ActSection 4(1)(e)
  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 23
  • Limitation of Actions ActSection 20
  • Law Society of Kenya Conditions of Sale (1989 Edition)Clause 4(7)
  • Law Society of Kenya Conditions of Sale (1989 Edition)Condition 6(1)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land contracts and title (not expressly invoked in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Anne Murambi v John Munyao Nyamu & another [2018] KEELC 2375 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2375/eng@2018-07-11

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