Catherine Wamuyu Ng’ang’a & another v Kabete Dam Limited & another [2020] KEELC 3864 (KLR)
The bottom line
#A Kenyan court ordered a developer to refund Kshs. 31.5 million with interest and pay Kshs. 38 million in damages after reselling a buyer's off-plan house.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiffs were entitled to a refund of the purchase price paid
Yes; the Defendants did not deny receipt of Kshs. 31,500,000/= and repudiated the contract by selling the Suit Property to third parties
The Defendants' replying affidavit did not deny receipt of the purchase price; their contentions that the Plaintiffs breached the payment schedule and that alternative offers were made were unsupported by evidence. The Defendants sold the Suit Property to Sachin and Seema Dhanani in 2015 for Kshs. 85,000,000/=. The court treated 18/7/2015 as the date of repudiation and held the Plaintiffs entitled to a refund with interest from the dates of payment.
The quantum of damages for breach of contract
Damages for loss of bargain of Kshs. 38,000,000/= awarded, based on the repudiation-date resale price rather than the claimed current market value
The court adopted Halsbury's Laws of England, Volume 12, paragraph 1183: the deposit is returned with interest plus damages for loss of bargain measured at the date of repudiation. As the property was sold for Kshs. 85,000,000/= against a contract price of Kshs. 47,000,000/=, loss of bargain was Kshs. 38,000,000/=. The Plaintiffs' claim for Kshs. 106,722,500/= based on an 80.85% increment rate failed for want of valuation evidence.
Legal principles established
#- Measure of damages for a vendor's repudiation of a sale of land contract is return of the deposit with interest plus loss of bargain, computed as the difference between the market value at the date of repudiation and the contract price
- A party claiming damages must prove its loss with evidence; absent a valuation report, the court may rely on the price for which the property was actually resold at repudiation
Court orders
#- 1.Refund of Kshs. 31,500,000/= paid by the Plaintiffs to the Defendants, with interest at court rates from the dates of payment until payment in full
- 2.Damages for loss of bargain of Kshs. 38,000,000/=, being the difference between the Kshs. 85,000,000/= sale price on the date of repudiation and the contractual price of Kshs. 47,000,000/=
- 3.Costs of the suit to the Plaintiffs
- Jurisdiction invoked
- Environment and Land Court jurisdiction under the Environment and Land Court Act (original suit over breach of a sale of land contract)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Catherine Wamuyu Ng’ang’a & another v Kabete Dam Limited & another [2020] KEELC 3864 (KLR)", Case Analysis (2020). ELC Case No. 12 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3864/eng@2020-01-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.