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ELCPartially AllowedNot stated in the judgment as provided· [2020] KEELC 1592 (KLR)

Harjinder Singh Bhogal & another v Edward Mukundi Karanja & another [2020] KEELC 1592 (KLR)

Environment and Land Court
23 July 2020
7,755 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~31 min to read original · ~4 min brief

The bottom line

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A land buyer who breached the sale agreement could not force the seller to complete the sale and only recovered their deposit.

What this practically means

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Executive summary

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The plaintiffs sued for specific performance of a sale agreement dated 10th January 2011 over subplot No. 1, a subdivision of L.R No. 2259/44 (Karen), for Kshs. 31,000,000/-, or alternatively a refund of the Kshs. 3,100,000/- deposit, damages for loss of bargain and interest. They alleged the defendants issued a completion notice on 14th May 2012 without all completion documents and failed to complete. The defendants admitted issuing the notice without complete documents but blamed the missing original parent title (lost at KCB) and, crucially, the plaintiffs' caveat registered on 17th August 2012 on the parent title contrary to Special Condition O, which blocked the application for a provisional title. The parties agreed six issues. The court held the defendants were initially in breach by issuing a completion notice without all completion documents, but the plaintiffs waived that breach by their letter of 10th July 2012 extending the completion date pending a provisional title. The plaintiffs then breached Special Condition O by registering a caveat without consent, frustrating completion of the sale. Specific performance was refused because a plaintiff who has contravened essential terms cannot invoke equitable relief; damages for loss of bargain (hypothetically Kshs. 10,000,000/-) were not payable as the defendants were not in breach. Judgment was entered only for a refund of the Kshs. 3,100,000/- deposit with interest at court rates from the date of judgment, with each party bearing its own costs. Judgment delivered at Nairobi on 23rd July 2020 by S. Okong'o, J.

Key legal issues

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01

Who breached the sale agreement of 10th January, 2011

Holding

The defendants were initially in breach by issuing a completion notice without all completion documents, but the plaintiffs subsequently breached Special Condition O by registering a caveat without consent, frustrating completion

Reasoning

The defendants gave a completion notice without completion documents, but the plaintiffs by their letter of 10th July 2012 left the completion date open pending a provisional title. The plaintiffs then registered a caveat on the parent title contrary to Special Condition O, blocking issuance of a provisional title and making completion impossible. Their breach frustrated the agreement.

p. 6
02

Whether the plaintiffs were entitled to specific performance

Holding

No - a plaintiff in breach of essential terms cannot obtain specific performance

Reasoning

Specific performance is discretionary and equitable. The plaintiffs registered a caveat without the defendants' consent contrary to Special Condition O, preventing the defendants from obtaining a provisional title which was a completion document. Having acted in contravention of essential terms, the plaintiffs could not invoke the court's equitable assistance.

p. 6
03

Whether damages for loss of bargain were payable

Holding

Hypothetically quantifiable at Kshs. 10,000,000/- but not awarded because the defendants did not breach the agreement

Reasoning

The court indicated that had the defendants been in breach, it would have awarded Kshs. 10,000,000/- for loss of bargain based on the appreciated value of the property, doing the best it could on uncontradicted but unproven valuation evidence. However, since breach was attributed to the plaintiffs, no loss arose from defendants' breach.

p. 6

Legal principles established

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  • A party seeking specific performance must have performed or be willing to perform all terms of the agreement and must not have contravened its essential terms.
  • A party responsible for fulfilment of a condition cannot rely on non-occurrence of that event without taking diligent steps.

Court orders

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  1. 1.Judgment entered for the plaintiffs against the defendants in the sum of Kshs. 3,100,000/- being refund of the deposit
  2. 2.Interest on Kshs. 3,100,000/- at court rates from the date of judgment until payment in full
  3. 3.Each party to bear its own costs of the suit

Authorities

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Legislation

  • Civil Procedure Actsection 26

Cases cited (11)

  • Neon & Norlo Signs (Kenya) Ltd. v Alarkhia and others
    [1970] E.A 82
  • Delilah Kerubo Otiso v Ramesh Chander Ndingra
    [2018] eKLR
  • Openda v Ahn
    [1984] KLR 208
  • Karia & Co. Ltd. v Dhanani
    [1969] E.A 392
  • Karachi Gas Co. Ltd. v H. Isaaq
    [1965] E.A 42
  • Davis Contractors v Fareham UDC
    [1956] 2 All ER 145
  • Akash Himatlal Dodhia v Dorothy Margret Wanjiku Kung'u & Another
    [2017] eKLR
  • Wagiciengo v Gerrard
    [1982] KLR 336
  • Johnson v Agnew
    [1980] AC 367
  • Millicent Perpetua Atieno v Louis Onyango Otieno
    [2013] eKLR
  • Gurdev Singh Birdi and Marinder Singh Ghatora v Abubakar Madhubuti
    CA No. 165 of 1996
Jurisdiction invoked
Original civil jurisdiction over a claim relating to land (sale of subplot of L.R No. 2259/44), Environment and Land Court

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, "Harjinder Singh Bhogal & another v Edward Mukundi Karanja & another [2020] KEELC 1592 (KLR)", Case Analysis (2020). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1592/eng@2020-07-23

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