Kafia Mohamed Mohamud v Abdullahi Yussuf Hassan [2019] KEELC 2847 (KLR)
The bottom line
#A Kenyan court refused to force an apartment seller to hand over possession because the buyer hadn't paid the full purchase price by the agreed completion date.
What this practically means
#Executive summary
#Key legal issues
#Interpretation of Clause 6 of the sale agreement on handover of vacant possession
Clause 6 did not entitle the purchaser to vacant possession on 30/4/2016 irrespective of payment of the full purchase price; the agreement must be read as a whole with possession tied to completion.
The court held that Clause 6 was not drafted in elaborate legalistic terms and made reference to possession being handed over on 30/4/2016, which was also the completion date. If Clause 6 meant possession irrespective of full payment, there would be no date by which the purchaser was bound to pay the outstanding price, an absurdity. Clauses 1.1(a), 3.1(b.i) and 4.2 presupposed full payment by the completion date.
Whether the Applicant was entitled to specific performance
No - specific performance is discretionary and equitable, requiring readiness, ability and willingness to perform; the Applicant was not ready, able and willing to pay the balance of the purchase price.
Relying on the authority relied on by the Applicant, the court noted that a plaintiff must show performance of all its undertakings. From correspondence on her loan application in September 2016, it was clear the Applicant was not ready, able and willing to pay the full purchase price by the completion date, and the Respondent's case was that she failed to pay the balance, delaying finalisation of the transaction.
Whether the Applicant was entitled to rent/compensation for non-enjoyment of the property
The claim failed because the Applicant did not prove entitlement to the rent sought.
The Respondent deponed that he vacated the property on 19/12/2016 to enable the purchaser take possession upon payment of the balance. The Applicant, aware of this, did not pay the balance in December 2016 and take possession, but instead filed suit in July 2017. On that state of the evidence, her claim for Kshs. 110,000/= per month was not proved.
Legal principles established
#- A sale agreement must be read as a whole; clauses must not be interpreted in isolation so as to produce an absurd result.
- A plaintiff seeking specific performance must show that it has performed, and was ready, able and willing to perform, all terms it undertook to perform.
Court orders
#- 1.The court declines to grant the orders sought in the Originating Summons
- 2.Each party will bear its own costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over the suit property (L.R. No. 1/380 Nairobi); no specific provision invoked in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kafia Mohamed Mohamud v Abdullahi Yussuf Hassan [2019] KEELC 2847 (KLR)", Case Analysis (2019). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2847/eng@2019-05-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.