Angelina Kalamba Mwasi & 5 others v Versus Mbaruk Ayub Ali Mbaruk [2020] KEELC 2259 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Execution and enforceability of the sale agreement
The agreement was null and void because only five of six vendors signed it and no written authority for the signatory was shown
All six vendors were noted in the agreement, but Mariamu never signed; Angelina thumb-printed on her behalf without any demonstrated written authority. The court held an agreement binds only its executors, so Mariamu could not be bound, and the respondent could not acquire the house unless all persons entitled executed the agreement.
Payment of consideration and the receipt clause
The trial Magistrate erred in holding that Clause 2 (acknowledging receipt on signing) proved payment; it was common ground that Kshs. 1,400,000/= was never paid on execution, so the respondent was in breach
The court held it could not close its eyes to the undisputed fact that the money was not paid on execution despite the clause acknowledging receipt. Any different payment arrangement needed a written variation or waiver, and paying in instalments without the vendors' agreed variation was a unilateral variation of the contract.
The alleged variation: Kshs. 500,000/= cash and a house worth Kshs. 450,000/=
On re-assessment of the evidence, the court found a subsequent verbal understanding that the balance would be Kshs. 500,000/= cash and a house worth Kshs. 450,000/=
PW-3, a witness called by the respondent, gave direct evidence that the respondent was to build a house in lieu of cash; this was not hearsay. The respondent's own willingness to build a house pointed to a contractual obligation rather than charity. Only Kshs. 170,000/= of the Kshs. 950,000/= cash was concretely proved paid, and no house was ever built.
Rescission and re-sale to the 7th appellant
Having not been paid, the vendors were entitled to rescind and re-sell; the respondent's only remedy was a refund
Because the respondent did not perform his part of the bargain under the original agreement or its variation, the vendors could rescind and sell to the third party. The issue of Kiburu Enterprises Limited not being sued was not necessary to determine since the respondent was not entitled to the house; the company could have applied to be enjoined.
Counterclaim for rent
Dismissed for lack of proof of the monthly rent of Kshs. 10,000/=
The court held that since the sale was never completed, the respondent never had the right of possession and had no entitlement to collect rent. However, the pleaded loss of Kshs. 10,000/= monthly needed evidentiary backing which was not provided, so no award could be made.
Legal principles established
#- An agreement binds only its executors; a vendor who never executed a sale agreement cannot be bound by it, and a purchaser acquires no interest unless all persons entitled execute the agreement
- Where an agreement acknowledges receipt of consideration on execution, but payment was in fact not made on execution, the court will not pretend payment occurred; failure to pay as drawn is a breach entitling the vendor to rescind
Court orders
#- 1.The 2nd appellant to refund to the respondent the sum of Kshs. 450,000/= with interest at court rates from 6 May 2020 until payment in full
- 2.The 1st, 3rd, 4th and 5th appellants to refund to the respondent the sum of Kshs. 170,000/= with interest at court rates until payment in full
- 3.The 1st-6th appellants jointly and/or severally to refund ground rent of Kshs. 28,200/= to the respondent with interest at court rates until payment in full
- 4.The counterclaim dismissed with no order as to costs of the counterclaim
- 5.The respondent's suit in the Magistrate's Court dismissed save for the order of refund
- 6.Declaration that the respondent is not entitled to the disputed house and must immediately vacate the disputed premises
- 7.The respondent to pay the costs of the suit before the Magistrate's Court and the costs of the appeal
- On appeal from
- Chief Magistrate's Court, Mombasa
- Mombasa CMCC No. 121 of 2013
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the Magistrates' Court (Environment and Land Court Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Angelina Kalamba Mwasi & 5 others v Versus Mbaruk Ayub Ali Mbaruk [2020] KEELC 2259 (KLR)", Case Analysis (2020). Mombasa ELCA No. 21 of 2018 (consolidated with Mombasa ELCA No. 30 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2259/eng@2020-05-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.