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ELCPartially AllowedELC Civil Case No. 1331A of 2016· [2019] KEELC 3776 (KLR)

Lydia Wambui Gitau & another v Patrick Karimeri Thuku [2019] KEELC 3776 (KLR)

Environment and Land Court
26 March 2019
LKL. Komingoi
644 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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A land seller who breaches a sale agreement must refund the buyer's deposit and pay damages, even without a default clause.

What this practically means

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Executive summary

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The plaintiffs sued the defendant for breach of a sale agreement dated 29th October 2010 over an acre of land along Southern Bypass Road. They sought judgment based on the current market value of between Kshs 20 million and 30 million, or in the alternative a refund of the Kshs 2 million deposit with interest at 25% per annum, plus general damages including legal expenses in a criminal case in which the defendant was charged, costs and any other relief. The defendant entered appearance but filed no defence, and the suit proceeded ex parte. The 1st plaintiff testified that the defendant agreed to sell land, a sale agreement was executed and a deposit of Kshs 2 million paid, but a registry search revealed no records of the suit parcel, LR No. 9363/72, which the copy title showed registered in the defendant's name. The 2nd plaintiff confirmed this evidence and produced the sale agreement, cheques, copy of the title deed and a valuation report. The court found the transaction was not completed and that the defendant breached the agreement. It faulted the plaintiffs for failing to conduct due diligence, noting they ought to have obtained a certificate of official search before depositing the money. It also noted the agreement had no default clause but held the plaintiffs entitled to damages. Finding the plaintiffs' case uncontroverted and proved on a balance of probabilities, the court ordered a refund of Kshs 2 million, awarded general damages of Kshs 100,000, and granted the plaintiffs costs of the suit and interest. The claims for market-value judgment, 25% interest and criminal-case legal expenses were not granted as sought.

Key legal issues

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01

Breach of the land sale agreement

Holding

The defendant breached the agreement and the plaintiffs proved their case on a balance of probabilities, the suit being uncontroverted

Reasoning

The court found the transaction was not completed and that it was the defendant who breached the agreement. Although the agreement had no default clause, breach entitled the plaintiffs to damages. The plaintiffs' evidence was uncontroverted as the matter proceeded ex parte, and they proved their case on a balance of probabilities.

p. 1
02

Plaintiffs' failure of due diligence

Holding

The plaintiffs were faulted for failing to conduct due diligence before paying the deposit

Reasoning

The court observed that the plaintiffs should have sought a certificate of official search from the Land Registry to confirm registration of the suit parcel in the defendant's name. The records of LR No. 9363/72, though shown on the title deed copy in the defendant's name, could not be traced at the lands registry. This finding informed the modest damages award.

p. 1

Legal principles established

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  • A party who breaches a sale agreement is liable in damages to the other party even where the agreement contains no default clause
  • Purchasers must exercise due diligence, including obtaining a certificate of official search, before depositing purchase money

Court orders

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  1. 1.An order directing the defendant to refund to the plaintiffs the sum of Kshs. 2 Million paid to him
  2. 2.The defendant to pay the plaintiffs general damages for breach of contract of Kshs 100,000
  3. 3.The plaintiffs to have costs of the suit and interest
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a land sale agreement dispute

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, "Lydia Wambui Gitau & another v Patrick Karimeri Thuku [2019] KEELC 3776 (KLR)", Case Analysis (2019). ELC Civil Case No. 1331A of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3776/eng@2019-03-26

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