Samuel Murigi Waigwa Francis Babu Mwangi [2021] [2021] KEELC 517 (KLR)
The bottom line
#A Kenyan vendor who has already transferred land to a buyer cannot cancel the sale; they must sue for the unpaid balance instead.
What this practically means
#Executive summary
#Key legal issues
#Whether the appellant breached the sale agreement
Yes - failure to pay the balance of the purchase price despite transfer and possession was a fundamental breach
The agreement fixed a 90-day completion date, time being of the essence, and required payment into the vendor's named bank account upon transfer. The property was transferred on 19/2/2019 and the appellant acknowledged this, yet paid only Kshs 1,000,000 of the Kshs 2,800,000 price, made no payment after demand, and never deposited the balance in court.
Whether rescission had crystallised and was available
No on both limbs - no compliant completion notice preceded the purported rescission, and rescission was unavailable after conveyance and handover of possession
Under special condition (b) and paragraph 13.4.1 of the LSK Conditions of Sale (2015), rescission requires a prior unequivocal completion notice. The letter of 7/3/2019 was a mere demand for the balance, and the letter of 9/4/2019 purported to rescind immediately rather than call for completion. Further, following Mwangi v Kiiru, a vendor who has conveyed the land must sue for damages referable to the balance of the purchase price.
What remedy was available to the respondent
Recovery of the balance of the purchase price (Kshs 1,800,000) with interest from filing suit
The contract for the disposal of an interest in land was subject to Section 3 of the Law of Contract Act, and there was no agreement allowing payment to a third party (Sampesa Agency Limited). The appellant neither counterclaimed nor pleaded a set-off, so he could not deduct Kshs 713,492 from the purchase price; Sampesa could pursue the respondent directly.
Legal principles established
#- The jurisdiction of the first appellate court is to re-evaluate and re-assess the entire evidence and arrive at independent conclusions
- Rescission must follow a completion notice duly issued and served, and such notice must be unequivocal
- Where the vendor has conveyed the land and handed over possession, rescission is unavailable; the remedy is to sue for the balance of the purchase price
- A purchaser has no right to withhold the purchase price on account of an unpleaded third-party claim
Court orders
#- 1.The disposal orders made by the trial court in Ruiru MCL & E Case No 41 of 2019 are set aside and substituted with an award of Kshs 1,800,000 being the balance of the purchase price relating to Ruiru/Kiu Block 2 (Githunguri) 14214 in favour of the plaintiff, Francis Babu Mwangi
- 2.Interest on the sum of Kshs 1,800,000 at court rate from the date of filing suit till payment in full
- 3.Costs of the suit in the Magistrate Court to the respondent/plaintiff
- 4.Parties shall bear their respective costs of this appeal
- On appeal from
- Senior Principal Magistrate's Court at Ruiru
- Ruiru MCL & E Case No 41 of 2019
- Jurisdiction invoked
- First appellate jurisdiction over the Senior Principal Magistrate's Court at Ruiru
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Murigi Waigwa Francis Babu Mwangi [2021] [2021] KEELC 517 (KLR)", Case Analysis (2021). Ruiru MCL & E Case No 41 of 2019 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/517/eng@2021-12-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.