Jane Wambui & another (Suing as the Administrators of the Estate of Emma Wangui Kamau-Deceased) v Benard Herman Karanja & another [2021] KEELC 1628 (KLR)
The bottom line
#A Kenyan court ordered a seller to complete a land sale made through a valid written agreement, even though the property was registered in someone else's name.
What this practically means
#Executive summary
#Key legal issues
#Whether there was a valid and enforceable contract between the Deceased and the 1st Defendant
The sale agreements were in writing, signed by the parties, and contained the parties' names, property description, price and conditions, satisfying Section 3(3) of the Law of Contract Act; the contract was valid and enforceable
The Court perused the sale agreements produced as exhibits and found they were in writing and signed by the parties, thus meeting the statutory formalities. The agreements disclosed the parties, the property, the purchase price and conditions. Both the agreement of 18th January 2006 and that of 15th February 2006 showed the 1st Defendant agreed to sell to the Deceased despite the 2nd Defendant being registered owner, and no illegality was found.
Whether specific performance should be granted despite the 1st Defendant not being the registered owner
Yes. A party may hold a beneficial interest; the 1st Defendant had agreed to sell the property allocated to him, the 2nd Defendant claimed no rights and no hardship would be suffered
Specific performance is discretionary but the Court found no illegality, no adequate alternative remedy raised, and no hardship to the 1st Defendant since the 2nd Defendant claimed no rights over the property. The Court found the Plaintiffs had adduced sufficient evidence to warrant exercise of discretion in their favour and ordered specific performance compelling transfer, with the 2nd Defendant to transfer in the alternative.
Whether the Plaintiffs were entitled to mesne profits
No - mesne profits were not specifically pleaded and are special damages that must be proved
Relying on the Court of Appeal decision in Peter Mwangi Msuitia & Another v Samow Edin Osman, the Court held mesne profits are special damages to be specifically pleaded and proved. Since the Plaintiffs failed to specifically plead mesne profits, that head of relief failed even though specific performance succeeded.
Legal principles established
#- A suit upon a contract for the disposition of an interest in land must comply with Section 3(3) of the Law of Contract Act - in writing, signed by all parties, signatures attested by a witness
- Specific performance is a discretionary equitable remedy granted on well-laid principles where a valid enforceable contract exists
- Mesne profits must be specifically pleaded and proved as special damages
Court orders
#- 1.An order of Specific Performance be and is hereby made compelling the 1st Defendant to do all that is necessary to facilitate the transfer of plot Number Thika Municipality Block 9/301 from the 2nd Defendant to the Plaintiffs and or in the alternative the 2nd Defendant be and is hereby ordered to transfer the said subject plot into the names of the Plaintiffs.
- 2.The Costs of this suit will be borne by the 1st Defendant
- 3.Any party is at liberty to apply.
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a dispute relating to land (Thika Municipality Block 9/301); no specific constitutional/statutory basis stated
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jane Wambui & another (Suing as the Administrators of the Estate of Emma Wangui Kamau-Deceased) v Benard Herman Karanja & another [2021] KEELC 1628 (KLR)", Case Analysis (2021). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1628/eng@2021-10-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.