Anthony Kabucho Ngurimu v Josvir Traders & Agencies Ltd & another [2019] KEELC 1593 (KLR)
The bottom line
#A Kenya court refused to order completion of a land sale because the buyer never served the required completion notice, but protected the buyer with an injunction.
What this practically means
#Executive summary
#Key legal issues
#Breach of the agreement for sale
The 1st defendant did not breach the agreement; the plaintiff never served a completion notice, so the agreement remains open and enforceable
The agreement had no completion date, so Condition 2(1)(c) of the 1989 LSK Conditions of Sale fixed completion at 42 days (16 March 2007). Condition 4(7) required a 21-day completion notice before rescission. No such notice was proved; the plaintiff's claim of a letter was unsupported. The agreement therefore subsists and the property can still be transferred.
Misrepresentation and concealment of material facts
Not proved; it was not a term that the 1st defendant was registered owner or that title was unencumbered
The agreement's terms were self-explanatory and accepted by the plaintiff. It was not a term that the 1st defendant was the registered owner of the suit property or the mother title, nor that title was unencumbered. The ongoing litigation and unregistered status of the mother title did not amount to misrepresentation or concealment.
Professional negligence by the 2nd defendant
Not established; duty limited by clause 10 to drawing the agreement
Clause 10 limited instructions to drawing the agreement. Due diligence on the vendor's title was not part of the mandate, and the property had no title to search in any event. The family relationship between a partner and the vendor's director was common knowledge among the parties, and no evidence showed the agreement was influenced to the plaintiff's detriment.
Loss and damages
No loss proved; demolition not attributed to the 1st defendant and construction lacked approved plans
The plaintiff remained in possession and the 1st defendant had not dispossessed him. The demolition of structures was not connected by evidence to the 1st defendant, and no approved building plans were produced. Consequently no compensable loss arose from the agreement for sale.
Legal principles established
#- Where an agreement for sale does not provide a completion date, the Law Society Conditions of Sale supply a default completion date of 42 days from the date of the agreement (or from receipt of consent for controlled transactions)
- A purchaser who does not serve a 21-day completion notice under Condition 4(7) cannot rescind or treat the vendor as in breach; the agreement remains open and enforceable
- An advocate whose instructions are expressly limited to drawing a sale agreement owes no duty to conduct due diligence on title
- The sale of a subdivision does not automatically inherit the character of the mother title; the user can change during subdivision
Court orders
#- 1.The plaintiff's suit against the 2nd defendant is dismissed with costs to the 2nd defendant
- 2.An injunction restraining the 1st defendant, its agents, successors or assigns from selling, transferring, disposing of or offering for sale Plot Number 7 within L.R. No. 13041/1 to any other person pending transfer and registration of the parcel in the plaintiff's name
- 3.Each party to bear its own costs as between the plaintiff and the 1st defendant
- Jurisdiction invoked
- Original civil jurisdiction of the High Court over land claims (suit filed in the High Court, Nairobi)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Anthony Kabucho Ngurimu v Josvir Traders & Agencies Ltd & another [2019] KEELC 1593 (KLR)", Case Analysis (2019). HCCC (not stated in judgment; ELC suit at Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1593/eng@2019-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.