Charo Manyule Mangi & another v Tropical Treasure Limited & 2 others [2019] KEELC 1190 (KLR)
The bottom line
#The court cancelled a land buyer's victory where it proved only Kshs 2 million of a Kshs 41.5 million price was actually paid.
What this practically means
#Executive summary
#Key legal issues
#Effect of the terms of the Sale Agreement on transfer and payment
The Plaintiffs did agree to transfer the property before completion of payment, as Clauses 1 and 2 provided payment in full upon acquisition of the Certificate of Title
The Agreement, drafted by the Purchaser's Advocates, required the purchase price to be paid in full upon acquisition of the Certificate of Title, at which point possession would pass. The court therefore rejected the Plaintiffs' contention that transfer could not occur before full payment, while equally rejecting the 1st Defendant's assumption that issuance of title proved payment.
Whether the 1st Defendant paid the agreed purchase price
The 1st Defendant did not prove payment of the balance; only Kshs 2,020,000/- was paid, and its own letters acknowledged the balance was outstanding
The Replying Affidavit nowhere deponed to payment of Kshs 41,500,000/-; only Kshs 2,020,000/- was admitted as part payment. Letters from the 1st Defendant's Advocates in 2013 and 2014 acknowledged the balance was unpaid pending resolution of a squatter issue. Generalized assertions could not discharge the burden of proving payment.
Conflict of interest of the Purchaser's Advocate/Director
The same person was a Director of the 1st Defendant and the Advocate who drafted the Agreement, rendering the transaction lopsided and supporting the Plaintiffs' claim
The Statement of Account annexed showed the Advocate, who was also a Director of the 1st Defendant, charging Kshs 4,709,500/- for services. This dual role explained the lopsided terms requiring transfer before payment, and undermined the 1st Defendant's claim that value had been paid.
Whether the Plaintiffs' case was proved on a balance of probabilities
The Plaintiffs' case was proved against the 1st Defendant on a balance of probabilities
Given the unpaid balance, the lopsided agreement, and the 1st Defendant's possession without payment, the court was satisfied the Plaintiffs had proved their case against the 1st Defendant. However, no case was sustained against the 2nd and 3rd Defendants.
Legal principles established
#- A party alleging non-payment of an agreed purchase price need only raise it; the burden shifts to the payer to demonstrate the fact of payment
- Possession under this sale agreement could only be taken upon payment of the purchase price
Court orders
#- 1.The Plaintiffs' suit allowed as against the 1st Defendant with costs
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the land dispute (not expressly stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charo Manyule Mangi & another v Tropical Treasure Limited & 2 others [2019] KEELC 1190 (KLR)", Case Analysis (2019). Not stated in judgment (Plaint dated 12th February 2015, filed 23rd February 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1190/eng@2019-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.