Maureen Muthua v Nathan Kahara & another [2018] KEELC 3747 (KLR)
The bottom line
#A Nairobi court ruled that a property buyer who demanded a refund and walked away from a sale cannot later sue the seller for breach.
What this practically means
#Executive summary
#Key legal issues
#Material terms of the sale agreement dated 31st March 2008
The material term was clause 3, making completion the 30th day after the vendor's letter confirming authority to occupy had been granted by the City Council of Nairobi, notwithstanding the shifting estimated completion dates
The estimated completion date of April 2009 kept changing due to problems with contractors, and the plaintiff was kept informed and accepted the new dates. However, the governing agreement remained that of 31st March 2008 since a draft new agreement incorporating a fresh completion date was never executed. Clause 3 tied completion to the Council's grant of authority to occupy, not the earlier estimates.
Who was in breach of the sale agreement
The plaintiff, not the defendants, was in breach; her letter of 24th February 2011 amounted to rescission/renunciation which the defendants accepted
The plaintiff gave 14 days notice to complete failing which she would demand a refund; this was a plain refusal to continue with the contract. The defendants accepted the withdrawal, sought her account details for a refund, and pursuant to that rescission sold the apartment to a third party. Her later change of mind was communicated without prejudice and is inadmissible. There was thus no breach by the defendants.
Entitlement to permanent injunction, specific performance and damages
All reliefs fail: the apartment had already been sold so an injunction would act in vain; specific performance is unavailable to a party who herself rescinded; and damages cannot follow absent breach
The court found the suit was concluded on the plaintiff's own rescission. Equitable relief cannot issue to a party whose own conduct discharged the contract, and damages for breach presuppose breach, which was not established against the defendants. The suit was therefore dismissed in its entirety with costs to the defendants.
Legal principles established
#- A party who by words or conduct evinces an intention not to perform, or absolutely refuses to perform, the contract entitles the other party to treat himself as discharged; a rescission once accepted discharges both parties.
- Without prejudice correspondence that does not result in agreement is inadmissible in evidence.
Court orders
#- 1.The plaintiff's suit is dismissed
- 2.Costs of the suit awarded to the defendants
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to land (Environment and Land Court Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maureen Muthua v Nathan Kahara & another [2018] KEELC 3747 (KLR)", Case Analysis (2018). ELC No. 809 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3747/eng@2018-04-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.