Daniel Tumbes Olonapa v Briton (K) Ltd & 2 others [2019] KEELC 437 (KLR)

The sale agreement was in writing, signed and attested, satisfying section 3(3) of the Law of Contract Act and was therefore valid. Clause 3 required a Kshs. 5,000,000 deposit; only Kshs. 920,000 was paid as shown in the bank statement. The default clause (clause 12) and the Law Society Conditions of Sale entitled the vendor to serve a 21-day completion notice, which the Plaintiff did. The 1st Defendant's failure to pay even the full 10% deposit and the balance constituted a violation of its contractual obligations, aligning with the Black's Law Dictionary definition of breach.

Relying on section 80 of the Land Registration Act and authorities including Alice Chemutai Too, Agnes Naipanoi Pasha and Arthi Highway Developers, the court reasoned that title procured through fraud or from one without title is impeachable. The sale agreement did not permit resale before completion, and clause 3.4 required the parties' advocates to retain the title in the vendor's name until completion of payment. The 1st Defendant therefore dealt with the land as it wished and transferred it without consent, passing no valid title to the subsequent parties.

The court invoked the established injunction principles in Giella v Cassman Brown and found that, given the proven breach and the invalid transfer of the suit land to third parties, the Plaintiff had demonstrated a prima facie case with a right to be protected, justifying a permanent restraint against subdivision, alienation, transfer or interference with the suit land and its resultant subdivisions.

The court found that the Plaintiff was the inconvenienced party due to the actions of the Defendants and was thus entitled to costs, but the final order imposed costs only on the 1st Defendant, with interest from the date of filing the suit at court rates.