Javid Iqbal Karim & another v Ze Yun Yang [2018] KEELC 4883 (KLR)
The bottom line
#A Kenyan court enforced two stacked land sale agreements as one deal and ordered the buyer to pay the outstanding balance, but refused to cancel the property transfer.
What this practically means
#Executive summary
#Key legal issues
#Which documents constituted the sale agreement
Both the interim agreement of 4th February 2004 and the second agreement of 1st March 2004 are binding and must be read together
The first agreement was expressly styled an 'Interim Agreement' signalling a temporary arrangement, but the second agreement did not state it superseded the first. Applying the rule against re-writing contracts, the court held the parties bound by both agreements, giving a combined price of Kshs.17,500,000/=.
Who obtained the extension of lease
The Defendant, through his advocate Kihara Muttu, applied for and obtained the extension of lease at a cost of Kshs.300,000/=
The Defendant produced an application for extension of lease dated 18th February 2004 made by his advocate, plus correspondence between the City Council and Commissioner of Lands. The Plaintiffs, who alleged their advocate M. A. Khan obtained it, produced no documents; bearing the onus under Section 107 of the Evidence Act, they failed to prove their assertion.
Whether the Defendant breached the sale agreements
Yes; the Defendant left an unpaid balance of Kshs.4,702,313/=
Total price was Kshs.17,500,000/=. The Defendant paid Kshs.12,000,216/= directly and incurred expenses of Kshs.497,471/= on the Plaintiffs' behalf (tenant vacation payments of Kshs.310,000/= and water bill of Kshs.182,471/=), leaving Kshs.4,702,313/= unpaid. Unproven undocumented expenses were not allowed.
Whether Plaintiffs were entitled to the prayers sought
Only the prayer for payment of the balance; cancellation of transfer, mesne profits and possession were refused
Although the Defendant breached by underpaying, the transfer was regular and third parties had acquired the 160 flats built on the land. The Plaintiffs voluntarily handed over vacant possession before completion of payment, defeating claims for mesne profits and possession.
Legal principles established
#- A court cannot re-write a contract between parties; parties are bound by their terms unless coercion, fraud or undue influence are pleaded and proved
- Where a second agreement does not expressly supersede the first, both agreements are to be read together
- The burden of proving a fact rests on the party asserting it
Court orders
#- 1.Judgment entered for the Plaintiffs against the Defendant for payment of Kshs.4,702,313/= as balance of the purchase price
- 2.Plaintiffs' other prayers (forfeiture, cancellation of transfer, mesne profits, possession) disallowed
- 3.Plaintiffs awarded costs of the suit to the extent of their success
- Jurisdiction invoked
- Original civil jurisdiction of the High Court (Environment and Land Division) over a contract for sale of land LR.No.209/1673
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Javid Iqbal Karim & another v Ze Yun Yang [2018] KEELC 4883 (KLR)", Case Analysis (2018). Civil Suit No.736 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4883/eng@2018-02-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.