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ELCPartially AllowedNot stated in the judgment (original plaint dated 26/5/2009)· [2018] KEELC 4276 (KLR)

Oscar Ochieng & another v Prilcscot Company Limited [2018] KEELC 4276 (KLR)

Environment and Land Court
23 February 2018
BEB M Eboso
1,702 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court ordered a developer to complete a Syokimau house sale, but denied extra damages because the buyers hadn't paid the balance.

What this practically means

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Executive summary

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The plaintiffs and the defendant entered into an off plan house purchase agreement on 2/7/2007 under which the defendant was to develop Elan Park Estate on LR Number 7149/52, Syokimau, and sell the plaintiffs Unit Number 161 Phase II for Kshs 3,900,000. The plaintiffs paid a deposit of Kshs 1,000,000, with the balance due on completion on 30/3/2008. Alleging the defendant failed to execute construction as agreed, the plaintiffs sued by plaint dated 26/5/2009 seeking specific performance, accounts, general damages, costs and interest. The defendant's defence was struck out on 16/11/2009 by Khamoni J as a sham, and the suit proceeded as formal proof on 25/7/2017. PW1 (the 1st plaintiff) proved the agreement and deposit; PW2, a valuer, assessed the value of a completed unit at Kshs 14,000,000 with probable monthly rent of Kshs 45,000-55,000. The defendant led no evidence. The court held that specific performance is a discretionary equitable remedy governed by common law principles and, since the defendant itself submitted that it still held the certificate of lease and no ground for withholding the remedy existed, specific performance was granted. General damages were refused because the plaintiffs had not tendered the balance of Kshs 2,900,000 when filing suit, and they were already obtaining a unit worth Kshs 14,000,000 at the contractual price of Kshs 3,900,000. Judgment was entered in terms of prayers (a) and (d); the plaintiffs must deposit the balance in court within 60 days, failing which the award stands vacated and the suit dismissed with no orders as to costs.

Key legal issues

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01

Entitlement to specific performance of the agreement for sale

Holding

Specific performance was granted because the defendant still held the certificate of lease and there was no evidence making it inequitable to order completion

Reasoning

The defence had been struck out as a sham, leaving the plaintiffs' claim unchallenged. The court set out common law and equitable principles governing specific performance, noting that the remedy is discretionary and will be refused where the vendor cannot convey the land, where enforcement entails hardship, or where title is in doubt. The defendant's own submission confirmed it still held the certificate of lease for the entire property, so no ground for refusing the remedy was established.

p. 2
02

Whether general damages for breach of contract should accompany specific performance

Holding

General damages were refused because the plaintiffs did not tender the balance of the purchase price when filing suit and were already receiving a substantial benefit

Reasoning

The court accepted that general damages can be awarded alongside specific performance in appropriate cases. However, the balance of Kshs 2,900,000 was never tendered in court or to the defendant when the suit was filed. Weighing this against the fact that the unit was now valued at Kshs 14,000,000 while the contractual price was Kshs 3,900,000, the court held this was not a suitable case for general damages in addition to specific performance.

p. 2

Legal principles established

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  • The court will not decree specific performance where evidence shows the vendor is unable to convey the land
  • Specific performance is an equitable remedy granted at the court's discretion and may be refused on grounds of hardship, doubtful title or protracted litigation
  • General damages for breach of contract may properly be awarded in appropriate cases in addition to specific performance

Court orders

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  1. 1.Judgment entered in favour of the plaintiffs against the defendant in terms of prayers (a) and (d) of the plaint (specific performance and costs)
  2. 2.The plaintiffs shall deposit in court the balance of purchase price (Kshs 2,900,000) within 60 days and the court shall release the money to the defendant
  3. 3.In the event of default by the plaintiffs, the award shall stand vacated and the suit shall stand dismissed with no orders as to costs
  4. 4.Parties at liberty to move the court for enforcement orders in tandem with common law practice governing specific performance decrees

Authorities

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Cases cited (3)

  • Mohamed Ali Shosi v Mohamed Swaleh
    Malindi Land Case No. 146 of 2013
  • Kennedy Simiyu Wekesa v Anna Nanjala Mukhebi
    Kitale ELRC Land Case No. 43 of 2014
  • Sudbrook v Eggle Tome
    The Times, July 15, 1982
Jurisdiction invoked
Original civil jurisdiction over a claim for specific performance of an agreement for sale of land (LR Number 7149/52, Syokimau, Machakos County)

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, "Oscar Ochieng & another v Prilcscot Company Limited [2018] KEELC 4276 (KLR)", Case Analysis (2018). Not stated in the judgment (original plaint dated 26/5/2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4276/eng@2018-02-23

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