Enkasiti Flower Growers Limited v Protein & Fruits Processing Limited & another [2020] KEELC 2032 (KLR)
The bottom line
#A Kenyan court ordered a land seller to complete the sale after taking the buyer's Kshs.31 million, ruling it could not renege on its own agreement.
What this practically means
#Executive summary
#Key legal issues
#Validity and enforceability of the sale agreements of 11th June 1996 and 24th April 1997
Both agreements were validly executed and enforceable; the plaintiff proved payment of the full consideration of Kshs.31,000,000 and the 1st defendant surrendered possession
Section 3(3) of the Law of Contract Act was satisfied: the agreements were in writing, signed by the contracting parties and attested. PW1 testified the CEO was authorised to sign, and the 1st defendant gave instructions on payments to the 2nd defendant without challenge. Payment was proved by receipts. The court applied RTS Flexible Systems on objective contractual formation and estopped the 1st defendant from resiling.
Effect of lack of timely land control board consent
Consent was properly sought and granted on 17th June 2008, curing any defect; in any event estoppel and constructive trust apply
The plaintiff exhibited the consent granted on 17th June 2008, produced as exhibit P17a, and the 1st defendant called no evidence to disprove its legitimacy. Following Kiplagat Kotut and Willy Kimutai Kitilit, the doctrines of estoppel and constructive trust prevent a vendor who allowed the purchaser to incur expense and take possession from asserting invalidity. The chargee's release of title documents evidenced its consent to the sale.
Whether the 1st defendant's counterclaim was merited and/or res judicata
Counterclaim not merited; no particulars or evidence of bad faith or undue influence; it raised the same issues as HCCC 1207 of 2005 and was an abuse of process
The plaintiff had performed its obligations and no notice to rescind was issued. The allegations of bad faith and undue influence were not particularised or supported by evidence. The same issues had been raised in HCCC 1207 of 2005, which was dismissed, so under section 7 of the Civil Procedure Act the counterclaim was res judicata and an abuse of court process.
Legal principles established
#- A suit on a contract for the disposition of an interest in land must comply with section 3(3) of the Law of Contract Act - the contract must be in writing, signed by all parties and attested by a witness
- A party who by representation induces another to pay consideration or discharge obligations on the faith of an agreement is estopped from reneging on it; constructive trust and proprietary estoppel may save contracts otherwise defective, including for lack of land control board consent
- Specific performance is a discretionary equitable remedy granted only where a valid enforceable contract exists
Court orders
#- 1.An order of specific performance directing the 1st defendant to execute a transfer of LR No. 10871/1 Thika free from all encumbrances in favour of the plaintiff
- 2.In default of the 1st defendant executing the transfer, the Deputy Registrar of the court to execute such transfer on behalf of or in the names of the 1st defendant
- 3.The plaintiff and the 2nd defendant to have costs of the suit, to be borne by the 1st defendant
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (suit concerning land; court not stated to have sat on appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Enkasiti Flower Growers Limited v Protein & Fruits Processing Limited & another [2020] KEELC 2032 (KLR)", Case Analysis (2020). ELC Suit No. 359 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2032/eng@2020-06-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.