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ELCPartially AllowedELC. Case No. 103 of 2017· [2018] KEELC 3105 (KLR)

Paul Nsava & 14 others v Archer Dramond Morgan Limited & 4 others [2018] KEELC 3105 (KLR)

Environment and Land Court
25 May 2018
OAO.A. Angote
1,149 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ordered a developer to hand homeowners their titles, guard house, borehole and company shares, but refused promises not written into the contract.

What this practically means

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Executive summary

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Fifteen plaintiffs sued Archer Dramond Morgan Limited (named as first to fifth defendant) in the Environment and Land Court at Machakos, claiming breaches of individual sale agreements, leases and a management agreement for 110 housing units in the Hill Crest Park development on L.R. No. 27317, Athi River. They alleged conversion of the guard house into a shop, failure to furnish houses, failure to construct a playground, swimming pool and shopping mall, sale of land designated for a mall to Mavuno Church, failure to incorporate homeowners into the Management Company, failure to maintain the estate and to provide audited accounts and driveways. The defendants were served but neither entered appearance nor filed a defence, and the matter proceeded as a formal proof suit on 20th November 2017, with the first plaintiff testifying on behalf of all. The court found the lease required the Management Company to issue shares to unit holders and the sale agreement required security services, obligations that had not been met and which the unopposed evidence established. However, the court declined to grant specific performance of unpleaded contractual terms, finding no clause obligating construction of a swimming pool or shopping mall. On 25th May 2018 the court allowed the suit in terms of prayers (a), (c), (d), (f) and (h): retention of the guard house, retention of the borehole as estate property, excision of L.R. 27317 into individual titles for the 110 units, incorporation of paid-up homeowners as shareholders in the management company, and costs with interest at court rates until implementation.

Key legal issues

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01

Whether the Defendants breached the Sale Agreements and Leases

Holding

The Defendants, though served, neither entered appearance nor filed a defence, and the allegations were therefore unrebutted; specific performance was granted only for the contractual obligations proved

Reasoning

The Plaintiffs proved individual lease and sale agreements over units on L.R. No. 27317. The Lease required the Management Company to issue shares to unit holders and the Sale Agreement required security services. These obligations were not met and the Defendants filed no defence to rebut the averments, leaving the Plaintiffs' evidence uncontroverted.

p. 2
02

The scope of specific performance

Holding

Specific performance is enforceable only in respect of obligations expressly contained in the Sale Agreement and Lease, not additional implied expectations

Reasoning

Although the Plaintiffs were entitled to specific performance, the court perused the produced Sale Agreement and Lease and found no clause obligating construction of a swimming pool or shopping mall. Pw 1 could not point to any such clause, so relief was confined to the express obligations.

p. 2

Legal principles established

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  • An order of specific performance is limited to obligations specifically stated in the contract between the parties

Court orders

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  1. 1.A declaration that the part used as guard quarters be retained as the guard house and that the defendant's agent, servant and or employee be stopped from letting the same forthwith
  2. 2.A declaration that the borehole sunk within L.R. 27317 paid up by the homeowners be retained as property belonging to Hill Crest Estate
  3. 3.That L.R. 27317 be excised so as to have individual title deeds for the 110 house units
  4. 4.A declaration that the paid up home owners be incorporated as shareholders in the second defendant company
  5. 5.Costs of the suit plus interest thereon at court rates from the date of judgment until the prayers have been implemented
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to land and contracts for sale and lease of land (Environment and Land Court Act)

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, "Paul Nsava & 14 others v Archer Dramond Morgan Limited & 4 others [2018] KEELC 3105 (KLR)", Case Analysis (2018). ELC. Case No. 103 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3105/eng@2018-05-25

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