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ELCPartially AllowedELC No. 417 of 2016 (formerly Nakuru CMCC No. 1372 of 2004)· [2019] KEELC 2720 (KLR)

Jesse Warui Chege v Simon Njoroge Kariuki [2019] KEELC 2720 (KLR)

Environment and Land Court
13 June 2019
2,297 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A buyer who once claimed a land sale was fraud cannot later demand that same land — only his money back, plus a 20% penalty.

What this practically means

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Executive summary

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The plaintiff sued on a written sale agreement dated 11 August 1994 for the purchase of 1 ½ acres out of Bahati LR No. 6746/15 at Kshs. 182,000/=. He sought an injunction, a declaration of ownership and an order for specific performance, or alternatively a refund. The suit was filed in 2004 in the Chief Magistrate's Court at Nakuru and transferred to the Environment and Land Court. The defendant, who never participated in the hearing, had pleaded that the land was registered in the name of his deceased father, Jonah Kariuki Gakuo, that he had no capacity to sell it, and that the plaintiff's remedy lay in a refund. The court found that the defendant indeed had no capacity to sell, as the estate was only distributed on 16 July 2004 with no prior court permission to sell. Critically, the plaintiff had caused the defendant to be charged, convicted and jailed for obtaining the purchase money by false pretences on the very same agreement. The court held this made it antithetical for the plaintiff to enforce the agreement he had himself denounced as a fraud; he was estopped from claiming its benefit save for a refund. The court distinguished the decision in Jackson Kamau Kanyuru v Stephen Githinji Weru, where specific performance was granted because part of the transaction postdated confirmation of the grant. Judgment was entered on the plaintiff's alternative claim for a refund of Kshs. 180,000/= plus the 20% contractual penalty of Kshs. 36,000/=, totalling Kshs. 216,000/=. Specific performance and injunctive relief were refused. No orders as to costs were made.

Key legal issues

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01

Capacity to sell land forming part of an unadministered estate

Holding

The defendant had no capacity to sell the land registered in his deceased father's name before distribution of the estate on 16 July 2004

Reasoning

The court held that at the time of the 1994 agreement the land was registered in the name of the defendant's deceased father. No grant was confirmed and no court permission to sell had been obtained. The estate was only distributed in 2004, long after the sale, so the purported sale was made without capacity.

p. 2
02

Estoppel from enforcing an agreement previously alleged to be fraudulent

Holding

Having procured the defendant's conviction for obtaining money by false pretences on the same agreement, the plaintiff was estopped from seeking its specific performance

Reasoning

The plaintiff had complained that the defendant obtained Kshs. 182,000/= by falsely pretending he could sell land, and the defendant was convicted and jailed. The court held the plaintiff could not then assert the same agreement was valid and enforceable. Upon his own complaint, the defendant had nothing to sell and the plaintiff's remedy lay in a refund only.

p. 2
03

Entitlement to refund and contractual penalty

Holding

The plaintiff was entitled only to a refund of Kshs. 180,000/= plus the 20% penalty of Kshs. 36,000/=, totalling Kshs. 216,000/=

Reasoning

The agreement contained a clause 9 requiring a party backing out to pay 20% of the purchase price. The court found the agreement self-executing and the defendant backed out when specific performance was impossible. It noted a refund by banker's cheque had been offered but rebuffed, so judgment was entered on the alternative claim only.

p. 2
04

Distinguishability of Jackson Kamau Kanyuru v Stephen Githinji Weru

Holding

The precedent granting specific performance on analogous facts was distinguished because there part of the transaction occurred after confirmation of grant and the defendant was uncontested

Reasoning

In the cited case the completion date fell after confirmation of the grant, part of the price was paid after confirmation, the land had ceased to vest in the estate, and the defendant never filed a defence. None of these features obtained here, and the plaintiff had also disowned the transaction via the criminal complaint.

p. 2

Legal principles established

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  • A person cannot enforce a written agreement which he has in other proceedings successfully alleged was fraudulent; he is estopped from claiming its benefit save for a refund
  • A beneficiary of a deceased's unadministered estate has no capacity to sell estate land before confirmation of grant or court permission
  • A party who backs out of a self-executing sale agreement is liable under clause 9 to pay the innocent party 20% of the purchase price

Court orders

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  1. 1.Judgment entered for the plaintiff on his alternative claim for a refund of Kshs. 180,000/= plus damages of Kshs. 36,000/= (20% penalty), totalling Kshs. 216,000/=
  2. 2.No orders as to costs

Authorities

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Legislation

  • Constitution of Kenya2010 (basis for transfer of the suit to the ELC)

Cases cited (2)

  • Jackson Kamau Kanyuru vs Stephen Githinji Weru
    Nyahururu ELC No. 428 of 2017
  • Willy Kimutai vs Michael Kibet
    (2018) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court under the Constitution of 2010, to which the suit was transferred from the Chief Magistrate's Court at Nakuru

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, "Jesse Warui Chege v Simon Njoroge Kariuki [2019] KEELC 2720 (KLR)", Case Analysis (2019). ELC No. 417 of 2016 (formerly Nakuru CMCC No. 1372 of 2004). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2720/eng@2019-06-13

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