Samson Njuguna Mwaura v Jane Cherotich Mutai [2020] KEELC 1107 (KLR)
The bottom line
#A Kenyan land seller who cancelled a sale without notice making time of the essence lost his eviction bid and was ordered to complete the sale.
What this practically means
#Executive summary
#Key legal issues
#Whether the sale agreement was rescinded
The agreement was not validly rescinded because Samson served no notice making time of the essence, and the agreement itself made no provision for rescission or forfeiture and did not make time of the essence
The agreement was home-made and handwritten, without a rescission or forfeiture clause and without an express stipulation that time was of the essence. Following Gurdev Singh Birdi, a party alleging delay must serve notice making time of the essence before cancellation. Samson admitted under cross-examination he issued no notice of revocation, and no notice was produced in evidence.
Whether Jane breached the agreement and the consequences
Jane was in breach from 30 June 2009 for failure to pay the balance of KShs 600,000 by the agreed date; she is liable to pay the balance plus the 20% penalty of KShs 270,000 under clause 6
The terms of the agreement were clear and had to be complied with unless varied in writing; sickness or travel was no defence. Jane could simply have banked the money in Samson's account whose details she had. Her attempt to pay on 9 May 2013 was nearly five years late. Clause 6 provides that a breaching party loses 20% of the purchase price.
Whether Jane is entitled to specific performance and a permanent injunction
Yes; Jane demonstrated readiness and willingness to pay the balance and penalty before the suits were filed, and the justice of the case required completion of the contract
The cut-off point for readiness is the date of filing suit; Jane had banker's cheques for the balance and penalty ready by 9 May 2013, before filing on 23 May 2013. She had taken possession under the contract and developed the property with a school. Samson had received KShs 750,000 and sought no relief as to that sum. Substantive justice under Section 3 of the Environment and Land Court Act, Sections 1A and 1B of the Civil Procedure Act and Article 159(2) favoured completion.
Legal principles established
#- Where time is not of the essence of a land sale agreement, a party seeking to rescind must first serve notice making time of the essence; rescission without such notice is invalid
- Specific performance may issue to a plaintiff who, though previously in breach, was ready and willing to perform at the date of filing suit
- An agreed 20% penalty clause binds a party in breach of the payment terms
Court orders
#- 1.Samson Njuguna Mwaura's prayers for orders of injunction and eviction are dismissed
- 2.Judgment entered against Jane Cherotich Mutai and in favour of Samson Njuguna Mwaura for KShs 600,000 being balance of the purchase price
- 3.Judgment for KShs 270,000 being 20% penalty as per the sale agreement
- 4.The amounts to be paid within 21 days of delivery of judgment, failing which Jane to deposit them in court
- 5.Upon payment or deposit, Samson to transfer Rongai/Lengenet Block 2/46 (Mawe) to Jane within 21 days; in default the Deputy Registrar to sign all such documents on his behalf
- 6.Permanent injunction issued restraining Samson from selling, transferring, alienating or disposing the suit property to any person other than Jane
- 7.No order as to costs
- Jurisdiction invoked
- Environment and Land Court Act, Section 3 (with Sections 1A and 1B Civil Procedure Act and Article 159(2) of the Constitution cited)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samson Njuguna Mwaura v Jane Cherotich Mutai [2020] KEELC 1107 (KLR)", Case Analysis (2020). ELCC No. 379 of 2013 (lead file, consolidated with ELCC No. 381 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1107/eng@2020-09-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.