Daniel Karuru Mwaura & 12 others v Edward Kanjabi & another [2019] KEELC 3480 (KLR)
The bottom line
#Buyers got their money back but no land or damages, because they couldn't prove the plots were bigger and hadn't paid in full.
What this practically means
#Executive summary
#Key legal issues
#Competency of the suit under section 3(3) Law of Contract Act and Order XXIX Rule 1
The suit was competent: application forms and receipts satisfied section 3(3); naming the firm as Membley Housing Scheme instead of Membley Housing was not fatal; joining Samuel B. Mbugua did not defeat the suit
The court found the application forms and receipts constituted a memorandum showing the price and description of each property, sufficient under pre-2003 section 3(3). DW1's admission that the application forms formed the contract bound him. Misnaming the firm caused no prejudice, and under Order 1 Rule 9 misjoinder or non-joinder does not defeat a suit. A certificate of registration was insufficient to disprove Mbugua's partnership.
Existence of contracts for sale
The plot application forms and receipts constituted valid and binding agreements for sale
The court held that the executed application forms and issued receipts constituted a written memorandum signed by the party to be charged, containing price and property descriptions, and therefore valid and binding agreements for sale of land despite the defendant's submission that they were offers subject to contract.
Breach by the defendants
The defendants did not breach the agreements; the plaintiffs refused to accept what was offered
The burden lay on the plaintiffs to prove the plots measured 1/8 acre. The claimed subdivision scheme was not produced; the one in evidence showed 1/16 acre plots. No admission from DW2 established 1/8 acre plots. The plaintiffs, having failed to discharge the burden, could not establish breach, as it was they who rejected the plots offered.
Entitlement to specific performance, refund with interest, and general damages
Specific performance refused; refund of Kshs. 670,000/- granted but without interest; general damages refused
Specific performance is discretionary and requires the plaintiff to have performed all terms; the plaintiffs failed to pay the full purchase price within the prescribed period and did not establish agreements entitling them to 1/8 acre plots. A refund was awarded to prevent unjust enrichment, but interest and general damages were refused as no fault was established against the defendants.
Legal principles established
#- Plot application forms and payment receipts may constitute a sufficient memorandum under section 3(3) of the Law of Contract Act, and failure to state plot measurements does not render them deficient
- A plaintiff seeking specific performance must show performance of all terms undertaken
- No suit shall be defeated solely on account of misjoinder or non-joinder of parties
Court orders
#- 1.Judgment is entered for the plaintiffs against the defendants in the sum of Kshs. 670,000/- being a refund of the purchase price paid by the plaintiffs to the defendants
- 2.The plaintiffs' prayers for specific performance and general damages are dismissed
- 3.Each party shall bear its own costs of the suit
- Jurisdiction invoked
- Original civil jurisdiction over a claim for land sale contracts, specific performance and refund
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Daniel Karuru Mwaura & 12 others v Edward Kanjabi & another [2019] KEELC 3480 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3480/eng@2019-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.