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ELCOtherNot stated in the judgment as provided· [2020] KEELC 1816 (KLR)

Lucy Wangari Ngugi v Elizabeth Atieno Wanyanga & another [2020] KEELC 1816 (KLR)

Environment and Land Court
2 July 2020
SOS. Okong'o
6,236 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiff sued for declarations, specific performance of an assignment agreement dated 7th November 2008, an injunction, damages and a set-off of rent against the purchase price, over L.R No. 209/870/36, City Park Estate, Nairobi. The 2nd defendant had sold the property to the 1st defendant in October 2008 for Kshs. 7,100,000/-; the 1st defendant assigned her interest to the plaintiff days later. The 2nd defendant denied knowledge of the assignment, averring that it rescinded its agreement with the 1st defendant after a 21-day completion notice, and counterclaimed for vacant possession, rent arrears, mesne profits, damages for trespass and costs. At the hearing on 1st July 2019 the plaintiff's advocates declined to tender evidence, and the plaintiff's suit was dismissed with costs. The court then heard the counter-claim. It held, on the evidence including a letter from Kale Maina & Bundotich Advocates, that the 2nd defendant knew of and consented to the assignment and was estopped from denying it. However, the plaintiff breached both agreements by failing to pay the purchase price balance and rent. The 21-day notice having been served and expired on about 10th August 2009, the agreement was validly rescinded, leaving the plaintiff with no interest; her continued occupation was trespass. Judgment was entered for the 2nd defendant: vacant possession within 60 days, rent arrears against the 1st defendant (September–November 2008) and the plaintiff (December 2008–August 2009) at Kshs. 25,000/- monthly, mesne profits from September 2009 until possession is delivered, and costs of the counter-claim to the 2nd defendant, payable by the plaintiff. VAT on rent was refused for want of evidence.

Key legal issues

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01

Whether the 2nd defendant knew of and consented to the assignment of the sale agreement to the plaintiff

Holding

The court found the 2nd defendant was aware of and consented to the assignment, evidenced by a letter from Kale Maina & Bundotich Advocates dated 3rd June 2009 confirming no objection; the 2nd defendant was estopped from denying it.

Reasoning

The same firm of advocates acted for all parties. A letter from that firm confirmed the 2nd defendant had no objection to the assignment. The 2nd defendant did not sue the firm or call a partner to explain the letter, so the court accepted that the firm acted on instructions and that both the plaintiff and the 1st defendant relied on the representation of consent.

02

Whether the plaintiff breached the two agreements of sale

Holding

The plaintiff breached both agreements by failing to pay the balance of the purchase price by the completion date and by failing to pay rent as it fell due.

Reasoning

The plaintiff assumed the 1st defendant's obligations, including payment of the balance of Kshs. 6,390,000/- on or before 27th January, 2009, which she never paid. Clause 7.2 of the assignment agreement obliged her to keep paying rent until the purchase price was paid, and she failed to do so as and when it fell due.

p. 6
03

Whether the 2nd defendant was entitled to vacant possession, rent and mesne profits

Holding

Following service of the 21-day completion notice and rescission, the plaintiff had no interest in the property; her continued occupation was trespass entitling the 2nd defendant to vacant possession, rent up to 10th August 2009 and mesne profits thereafter.

Reasoning

Clause 5.1 permitted rescission on failure to complete after notice; the notice was served on both the 1st defendant and the plaintiff on 20th July 2009. The plaintiff was liable for rent at Kshs. 25,000/- per month up to 10th August 2009, and mesne profits at Kshs. 25,000/- monthly from September 2009 to June 2015 and Kshs. 35,000/- monthly thereafter, subject to deductions for payments made.

p. 6

Legal principles established

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  • A party who represents through its advocates that it has approved a transaction, on which representation others act, is estopped from denying knowledge or consent of that transaction.
  • Costs follow the event unless the court orders otherwise for good reason.

Court orders

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  1. 1.Vacant possession of all that parcel of land known as House No. 4, City Park, Nairobi situated on L.R No. 209/870/36.
  2. 2.Vacant possession shall be given within 60 days from the date hereof in default of which the 2nd defendant shall be at liberty to apply for the forceful eviction of the plaintiff and the 1st defendant from the property.
  3. 3.The 2nd defendant shall serve a copy of the decree extracted from this judgment upon the occupants of House No. 4, City Park, Nairobi situated on L.R No. 209/870/36 for their information.
  4. 4.The 1st defendant shall pay to the 2nd defendant rent arrears at the rate of Kshs. 25,000/- per month for the months of September, 2008 to November, 2008.
  5. 5.The plaintiff shall pay to the 2nd defendant rent arrears at the rate of Kshs. 25,000/- per month from December, 2008 up to August, 2009.
  6. 6.The plaintiff shall pay to the 2nd defendant mesne profits at the rate of Kshs. 25,000/- from September, 2009 up to June, 2015 and at the rate of Kshs. 35,000/- per month from July, 2015 until the date when vacant possession of the suit property is handed over to the 2nd defendant.
  7. 7.The 2nd defendant shall have the costs of the counter-claim to be paid by the plaintiff.
Jurisdiction invoked
Original civil jurisdiction over land claims (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, "Lucy Wangari Ngugi v Elizabeth Atieno Wanyanga & another [2020] KEELC 1816 (KLR)", Case Analysis (2020). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1816/eng@2020-07-02

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