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ELCPartially AllowedELC No. 194 of 2018· [2019] KEELC 1538 (KLR)

Mary Njeri Wanderi v James Nyamweya Mamboleo t/a Nyamweya Mamboleo & Co. Advocates & 7 others [2019] KEELC 1538 (KLR)

Environment and Land Court of Kenya
30 September 2019
4,033 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The plaintiff sued over a failed purchase of LR No. 451/47/LVIII under a sale agreement dated 2 March 2017 with the 3rd defendant at Kshs. 44,000,000/=. She claimed the vendor's subsequent sale of the property to the 4th and 5th defendants on 10 July 2017 was fraudulent and collusive, and sought a declaration of ownership, revocation of the second sale, cancellation of the 4th and 5th defendants' title, and specific performance; alternatively a refund and damages. The court found that the plaintiff failed to pay the balance of the purchase price within the 90-day completion period, that a 21-day completion notice issued and was not complied with, and that no written extension of time was ever agreed. The 3rd defendant was therefore within his rights to rescind the agreement and refund what had been received less 5% liquidated damages (Kshs. 9,600,000/= forwarded on 21 November 2017). No evidence of fraud or collusion in the second sale was found; the 4th and 5th defendants were innocent purchasers for value who conducted searches and paid Kshs. 45,000,000/=. The plaintiff's suit was dismissed. The 4th and 5th defendants' counterclaim succeeded: eviction of the plaintiff with 14 days to vacate, mesne profits of Kshs. 360,000/= per month from 9 May 2018 until vacant possession, a permanent injunction, payment of any pending utility bills she incurred, and costs. No orders were made against the 1st defendant, against whom the plaintiff retains liberty to sue directly for monies allegedly withheld, and the case against the 6th and 7th defendants was dismissed with costs.

Key legal issues

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01

Validity of rescission of the sale agreement

Holding

The rescission was valid; the plaintiff failed to pay the balance within the 90-day completion date and did not comply with the 21-day completion notice.

Reasoning

The agreement fixed completion at 90 days (30 May 2017). No extension was agreed in writing by the vendor or his counsel. A 21-day completion notice issued on 9 June 2017 and received on 14 June 2017 was not complied with. Under special condition 8, the vendor was entitled to cancel and refund the monies paid less 5% liquidated damages, which was done.

p. 3
02

Alleged fraud in the second sale

Holding

No fraud or collusion proved; the 4th and 5th defendants purchased for value after searches and are entitled to full rights as registered proprietors.

Reasoning

The court found no evidence of the pleaded collusion. The 4th and 5th defendants conducted official and ground searches, paid Kshs. 45,000,000/= on time, obtained registration, and were unaware of the plaintiff's alleged agreement or possession.

p. 4
03

Refund due to the plaintiff

Holding

The sum payable (Kshs. 9,600,000/=, being monies received less 5% liquidated damages) was duly refunded, albeit outside the 7-day period, disentitling the 2nd and 3rd defendants to costs.

Reasoning

Only Kshs. 11,800,000/= was shown to have been received by the 2nd and 3rd defendants. Refund of what was paid less 5% (Kshs. 2,200,000/=) equals Kshs. 9,600,000/=, forwarded on 21 November 2017. Though late beyond the 7 days in special condition 8, the plaintiff suffered no claim in this suit beyond that.

04

Counterclaim for eviction and mesne profits

Holding

Allowed; eviction ordered with 14 days to vacate, mesne profits of Kshs. 360,000/= per month from 9 May 2018, and a permanent injunction.

Reasoning

The 4th and 5th defendants as registered proprietors are entitled to exclusive possession. They gave the plaintiff notice on 9 May 2018 to vacate, which she ignored. Uncontested valuation evidence placed the monthly rental value at Kshs. 360,000/=.

Legal principles established

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  • A vendor who validly rescinds a sale agreement for the purchaser's non-payment is entitled to sell the property to a third party, whose title cannot be cancelled absent fraud.
  • A fixed completion period binds the parties unless extended by mutual written consent.

Court orders

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  1. 1.Plaintiff's suit against the 2nd and 3rd defendants dismissed, with no orders as to costs for or against them
  2. 2.No orders for or against the 1st defendant, including on costs
  3. 3.Mesne profits awarded to the 4th and 5th defendants at Kshs. 360,000/= per month from 9 May 2018 until the plaintiff moves out of the suit property
  4. 4.Eviction of the plaintiff ordered, with 14 days to vacate, failing which forcible eviction
  5. 5.Permanent injunction barring the plaintiff from entering, being upon, using or interfering with the suit land after expiry of the 14 days
  6. 6.Plaintiff ordered to pay any pending utility bills, rates or rent she incurred within 14 days, failing which the 4th and 5th defendants may pay and recover a refund from her
  7. 7.Costs of the suit and counterclaim awarded to the 4th and 5th defendants against the plaintiff
  8. 8.Case against the 6th and 7th defendants dismissed with costs
Jurisdiction invoked
Environment and Land Court jurisdiction over the suit property (LR No. 451/47/LVIII)

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, "Mary Njeri Wanderi v James Nyamweya Mamboleo t/a Nyamweya Mamboleo & Co. Advocates & 7 others [2019] KEELC 1538 (KLR)", Case Analysis (2019). ELC No. 194 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1538/eng@2019-09-30

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