George Boniface Mbugua v Mohammed Jawayd Iqbal (Sued as the Personal Representative of the Estate of the Late Ghulam Rasool Janmohamed) [2018] KEELC 3128 (KLR)
The bottom line
#A Nairobi buyer who kept paying and negotiating after missed deadlines proved the sale was still alive and won the land.
What this practically means
#Executive summary
#Key legal issues
#Payment of the Kshs. 500,000/= instalment
The court found the Plaintiff had paid Kshs. 700,000/= before the Nationwide Finance payment of Kshs. 516,295/=, corroborated by the vendor's advocate's letter of 11/12/1985 showing a balance of Kshs. 1.3 million.
The Plaintiff claimed he paid Kshs. 500,000/= in cash to the late Ghulam Rasool in 1985. The vendor's advocate's letter of 11/12/1985 indicated an outstanding balance of Kshs. 1.3 million, which only makes sense if the Kshs. 500,000/= had been received. The court accepted this corroboration, together with the parties' good relationship and the vendor forwarding the title documents before completion, as proving the payment on a balance of probabilities.
Whether the sale agreement was rescinded
The attempted rescission was ineffective because the Defendant engaged in further negotiations and accepted payments after the dates set for completion, waiving time as of essence.
Although the vendor's advocate gave 21 days to complete and later declared the agreement cancelled and rescinded with deposits forfeited, the vendor thereafter engaged in negotiations and accepted further payments from the Plaintiff. On the court's statement of the law, waiver by conduct and post-completion negotiations cause time to cease to be of essence, so the purported rescission could not stand.
The Defendant's counterclaim for rent
The counterclaim failed because the Plaintiff was found to have taken possession as a purchaser, not a tenant, and the sale was not validly rescinded.
The Defendant counterclaimed rent of Kshs. 25,020,000/= from 1986 to 2011 plus interest, contending the Plaintiff occupied as a tenant after repudiation. The court found the vendor gave the Plaintiff possession as purchaser before full payment and that no valid rescission occurred; therefore the Plaintiff lawfully occupied the Suit Property and the Defendant failed to prove the counterclaim.
Legal principles established
#- Time will not be considered of essence in a contract unless expressly stipulated, circumstances show it, or notice making time of essence is given after unreasonable delay.
- A party may waive a time-is-of-the-essence provision by words or conduct, including by post-completion negotiations or by accepting payments after the completion date.
- A party seeking specific performance must show performance of all terms he has undertaken to perform.
Court orders
#- 1.Prayers (a) and (b) of the Amended Plaint granted, being an order that the Defendant transfer L.R. No. 1/387, Ngong Road Nairobi to the Plaintiff
- 2.The Defendant's Amended Counterclaim dismissed with costs to the Plaintiff
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "George Boniface Mbugua v Mohammed Jawayd Iqbal (Sued as the Personal Representative of the Estate of the Late Ghulam Rasool Janmohamed) [2018] KEELC 3128 (KLR)", Case Analysis (2018). E.L.C. Case No. 1107 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3128/eng@2018-05-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.