Chania Frontiers Limited v Bibiana Mbatha Ngotho [2019] KEELC 3936 (KLR)
The bottom line
#A Kenyan court blocked a land seller from cancelling a property deal because she failed to follow the notice steps required in the contract.
What this practically means
#Executive summary
#Key legal issues
#Validity of the rescission notice
The Notice of 7th March, 2017 was not a valid rescission notice; it could not, prima facie, rescind the Agreement because Clause 7.1 required first a 21-day notice to remedy breach
Clause 7.1 entitled the Vendor, upon the Purchaser's default, to serve a written notice requiring remedy within 21 days, and only upon expiry of that notice to rescind. The notice of 7th March 2017 purported to terminate the sale of the remaining 60 plots without first being a notice to complete specifying breaches, so it was ineffective as a rescission notice. The Defendant's own later letter of 25th April 2017 described the 7th March letter as a completion notice.
Notice to complete must specify all breaches
The Defendant was obliged to state in the notice to complete all breaches, including late payment and accrued interest, before a valid rescission notice could issue
The Defendant introduced the issue of non-payment of accrued interest under the Law Society Conditions of Sale only in the rescission letter of 25th April 2017, not in the earlier notice. Since the notice to complete did not alert the Plaintiff to remedy that breach, reliance on it as a ground of rescission was procedurally defective. This defect, together with the Plaintiff's payment of the balance upon notice, established a prima facie case.
Prima facie case and irreparable injury
The Plaintiff established a prima facie case with chances of success and would suffer irreparable injury not compensable in damages
Having paid the balance of the purchase price upon service of the defective notice, and the notice not being clear on the breaches to remedy, the Plaintiff showed a prima facie case. The Defendant, who had quantified her claim in the Counter-claim and still held the titles to the 60 plots, would suffer no irreparable loss; the Plaintiff, having paid the full purchase price, would lose the properties if sold to third parties.
Legal principles established
#- Before rescinding an agreement for breach, a vendor must first serve a notice to complete specifying all breaches, and may only rescind if the purchaser fails to remedy them
Court orders
#- 1.Injunction restraining the Respondent, her agents and/or servants from selling, dealing with, interfering, alienating or disposing of all those parcels of land known as Mavoko Town Block 2/4072, 4073, 4074, 4075, 4090, 4091, 4094, 4095, 4096, 4097, 4098, 4099, 4100, 4101, 4102, 4117, 4126, 4127, 4128, 4129, 4130, 4131, 4132, 4133, 4134, 4135, 4136, 4137, 4138, 4141, 4142, 4143, 4144, 4145, 4146, 4147, 4148, 4149, 4154, 4160, 4164, 4165, 4166, 4167, 4168, 4169, 4170, 4171, 4175, 4178, 4179, 4180, 4181, 4227, 4228, 4229, 4230, 4231, 4232, 4233, 4234, 4285, 4286 and 4287, pending the hearing and determination of the suit
- 2.Costs of the Application to be borne by the Defendant/Respondent
- Jurisdiction invoked
- Not expressly stated; original civil jurisdiction over land disputes (interlocutory application in a pending suit)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chania Frontiers Limited v Bibiana Mbatha Ngotho [2019] KEELC 3936 (KLR)", Case Analysis (2019). Not stated in judgment (Application dated 9th March, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3936/eng@2019-03-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.