Moses Shivanda Amuhaya v Torokasi Kavere Kadanye [2021] KEELC 2539 (KLR)
The bottom line
#A Kenyan land buyer whose plot was resold to someone else won back his Kshs 780,000 plus interest, but could not get the land itself.
What this practically means
#Executive summary
#Key legal issues
#Validity of the sale agreement and the plaintiff's entitlement
The plaintiff proved on a balance of probabilities that he bought 5.5 acres from the defendant and her late husband and paid Kshs 780,000/=; the confirmed grant and agreements signed by the defendant confirmed his interest
The plaintiff produced two sale agreements signed by the defendant, and the certificate of confirmation of grant showed he was entitled to 5.5 acres of the suit land. The defendant, as administratrix, could not disown the agreements as a mistake or claim lack of capacity. The Land Registrar produced a transfer by personal representative signed by the defendant, confirming her involvement.
Whether specific performance could be granted
Specific performance was refused because the land had been fraudulently resold to a third party (DW2), making the contract incapable of performance
DW2 testified he bought the land in 2008, took possession, and obtained it after succession. The court, relying on Fiat Kenya Ltd v Ali Jama Roble and Reliable Electrical Engineers, held that specific performance is never awarded where the order cannot be enforced. The plaintiff's remedy lay in rescission and refund of the purchase price.
Defendant's liability to refund the purchase price
The defendant was held liable to refund Kshs 780,000/= with interest from the date of filing suit
Despite accepting the purchase price, the defendant fraudulently resold the suit land to DW2 and failed to transfer it to the plaintiff. Following Simiyu v Watambala and Kenneth Kipruto Chebet v Laban Kipkering Murei, the recovery of purchase money under Section 7 of the Land Control Act and rescission with refund were the appropriate remedies.
Legal principles established
#- Specific performance will not be ordered where the contract is invalid or incapable of performance; damages and recovery of purchase money are adequate alternatives
- Where a controlled transaction becomes void for want of land control consent, the buyer's remedy is damages plus recovery of purchase money under Section 7 of the Land Control Act
- Where land is resold to another buyer, the plaintiff is entitled to rescission and refund of the money paid
Court orders
#- 1.The defendant is to refund the sum of Kshs 780,000/= plus interest at court rates from the date of filing this suit
- 2.Costs of this suit to the plaintiff
- Jurisdiction invoked
- Environment and Land Court jurisdiction over disputes relating to land (Environment and Land Court Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moses Shivanda Amuhaya v Torokasi Kavere Kadanye [2021] KEELC 2539 (KLR)", Case Analysis (2021). ELC Case No. 151 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2539/eng@2021-07-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.