Austin Omonyo Barasa v James Irungu Mwangi [2020] KEELC 3511 (KLR)
The bottom line
#A Kenyan land seller who withheld the signed transfer document had to complete the sale anyway, because the buyer wasn't the one in breach.
What this practically means
#Executive summary
#Key legal issues
#Obligation to draft and engross the Transfer instrument
The joint advocate's role was limited by Clause 8 to preparing, witnessing and arbitrating on the Agreement; the obligation to draft and execute the Transfer fell on the Defendant through his own appointed advocate
Clause 8 confined Tim Okwaro Associates to preparing, witnessing and arbitrating on the Agreement. Special condition 1 required the Defendant to submit a duly executed Transfer. The Defendant never instructed Martin Keffa Simiyu Advocate to release an executed Transfer, never requested Tim Okwaro Associates to draft one, and adduced no evidence of paying fees for drafting. Had the joint advocate not been so limited, he would ordinarily have drafted both the Agreement and the Transfer.
Entitlement to rescind under Clause 5
Only a party not in breach may serve a completion notice and rescind; the Defendant, being in breach, could not validly terminate
Clause 5 entitled a party not in breach to serve notice and rescind. The court found the Defendant breached the Agreement by failing to release the duly executed Transfer within the 90-day completion period. Having released all other completion documents, he had no valid reason to withhold the executed Transfer. The termination notice of 5th August 2015 and rescission letter of 8th September 2015 were therefore of no effect, and the Defendant's apparent motive was to obtain a higher price.
Plaintiff's readiness and willingness
The Plaintiff was ready and willing to pay the balance upon lodging of the Transfer as agreed, and had paid more than the 10% deposit
Legal principles established
#- Where a sale agreement limits the joint advocate's instructions to preparing, witnessing and arbitrating on the agreement, the advocate is not obliged to draft the Transfer instrument; the vendor must furnish the duly executed Transfer as a completion document
- A party in breach of a sale agreement cannot invoke a completion/rescission notice clause against the other party
Court orders
#- 1.An order of specific performance commanding the Defendant to complete the Sale Agreement of 18th December, 2014
- 2.The Defendant to pay the costs of the suit
- 3.The Defendant's Counter-claim is dismissed with costs
- Jurisdiction invoked
- Original civil suit; no constitutional/statutory basis expressly invoked in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Austin Omonyo Barasa v James Irungu Mwangi [2020] KEELC 3511 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3511/eng@2020-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.