Nicholas Thuo Kabaiku v Serah Njeri Mbatia [2021] KEELC 1976 (KLR)

The Plaintiff paid the deposit, remitted stamp duty to the common advocate, advanced capital gains tax to the Defendant, and secured a bank professional undertaking for the balance. Completion documents were never sent to the bank's advocates because the common advocate lodged the transfer at the lands office. No evidence tied the Plaintiff to that act. The rescission notices did not comply with clause G(i)(a) requiring 21 days' notice to the purchaser, and the second notice was addressed to the advocates, not the purchaser.

Although the Defendant pleaded particulars of fraud against the Plaintiff and his advocate, she produced no evidence of the Plaintiff's participation. The Plaintiff in fact lodged a disciplinary complaint against the advocate and had paid the full stamp duty sum. Fraud allegations require a higher standard of proof in civil matters, which the Defendant did not meet.

Clause G required 21 days' notice to the purchaser at his address. No evidence showed how the 26/1/2018 notice was served, and the 9/2/2018 notice was addressed to Righa & Mburu Advocates, not the Plaintiff. The Defendant's conduct was inconsistent with rescission since she simultaneously wrote to the Plaintiff's financing bank requesting payment of the balance.

The Plaintiff proved his case on a balance of probabilities, had financing in place, and the Defendant was unwilling to complete, allegedly seeking a higher price of Kshs. 35,000,000/=. The Defendant resided in the USA, making enforcement of damages difficult. The court therefore ordered completion via release of completion documents to the financing bank upon an acceptable professional undertaking.