Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the judgment text provided (Plaint dated 25th October 2016, filed 26th October 2016)· [2020] KEELC 1226 (KLR)

Rakesh Rajspal v Paola Giacosa [2020] KEELC 1226 (KLR)

Environment and Land Court of Kenya
25 September 2020
3,658 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

#

A Kenyan court dismissed a property buyer's refund claim, holding he forfeited his deposit by failing to pay instalments and wrongly blaming the seller for document discrepancies.

What this practically means

#

Executive summary

#
The Plaintiff, a medical practitioner in Malindi, sued the Defendant for a refund of Euros 30,000 paid as a 10% deposit under a sale agreement dated 28th August 2015 for the purchase of a villa on parcel 624/711 (CR 24711) at Mambrui, Malindi, together with Kshs 85,000 paid to workers, damages for breach of contract and misrepresentation, and costs. He alleged the title documents were falsified in that the sub-division's acreage exceeded the mother title, and that the Defendant dispossessed him and failed to refund the deposit. The Defendant denied falsifying the documents, contending they were the same ones issued to her when she acquired the property in 1993, and by Counterclaim sought a declaration that the Plaintiff was in breach of the agreement and not entitled to a refund or specific performance. The court found the sale agreement contained no commitments as to measurements, and that the Certificate of Title and the Plaintiff's own postal search both reflected 1.898 Ha, matching registry records. The Registrar of Titles, the Plaintiff's own witness, confirmed the documents were genuine and conceded the Deed Plan number discrepancy may have emanated from the registry. The court held the Plaintiff had a duty of due diligence, that the Defendant committed no breach, and that the Plaintiff breached Clause 19 by failing to pay the instalments and thereafter repudiated the agreement, thereby forfeiting the deposit. The Plaintiff also could not claim possession since Clause 12 entitled him to possession only upon full payment. The suit was dismissed in its entirety and judgment entered for the Defendant on her Counterclaim, with costs to the Defendant.

Key legal issues

#
01

Whether the Defendant falsified the title documents

Holding

No falsification was proved; the documents presented matched the registry records and the discrepancy in numbers likely emanated from the registry

Reasoning

The agreement itself contained no commitments as to measurements, and the Certificate of Title and Postal Search both reflected 1.898 Ha. PW3, the Registrar of Titles, confirmed the documents were genuine per registry records and conceded the wrong Deed Plan Number may have been typed by his office. The Defendant received the same documents when she acquired the property in 1993.

p. 3
02

Whether the Defendant breached the agreement

Holding

No breach by the Defendant was established; the Plaintiff was the breaching party

Reasoning

Clause 18 entitled the Plaintiff to a refund only where the Defendant breached the agreement. The court found no breach by the Defendant. Conversely, the Plaintiff failed to pay the instalments due on 30th October 2015, 31st December 2015 and 30th June 2016, breaching Clause 19, then unilaterally terminated the agreement.

p. 4
03

Whether the Plaintiff was dispossessed of possession

Holding

The Plaintiff could not claim dispossession since possession was only due on full payment of the purchase price

Reasoning

Clause 12 provided that full possession would be taken immediately on payment of the purchase price in full. The Plaintiff had only paid the 10% deposit at the time of filing suit, so he could not accuse the Defendant of dispossessing him of property whose possession he was yet to rightfully assume.

p. 4
04

Whether the Defendant's Counterclaim was proved

Holding

The Counterclaim was proved on a balance of probabilities

Reasoning

Having found that the Plaintiff breached and repudiated the agreement while no breach was established against the Defendant, the court was satisfied that the Defendant proved her claim for a declaration that the Plaintiff is in breach and not entitled to a refund or specific performance.

p. 4

Legal principles established

#
  • A purchaser of land has a duty to conduct appropriate due diligence on all relevant aspects of the property being purchased
  • A party who repudiates a contract for no breach by the other party forfeits the deposit paid
  • Where the deposit alone has been paid, the purchaser is not entitled to take full possession of the property

Court orders

#
  1. 1.The Plaintiff's suit is dismissed in its entirety
  2. 2.Judgment is entered for the Defendant as prayed in the Counterclaim (a declaration that the Plaintiff is in breach of the sale agreement and therefore not entitled to a refund of monies paid or to specific performance)
  3. 3.The Defendant shall have the costs of the Plaintiff's suit and of the Counterclaim
Jurisdiction invoked
Original civil suit on land and contract claims before the Environment and Land Court (specific provision not stated in the judgment)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Rakesh Rajspal v Paola Giacosa [2020] KEELC 1226 (KLR)", Case Analysis (2020). Not stated in the judgment text provided (Plaint dated 25th October 2016, filed 26th October 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1226/eng@2020-09-25

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