Margaret Wangechi Nderi v Julia Wanjiku Justus [2021] KEELC 2740 (KLR)
The bottom line
#The Nyeri Land Court ordered a widow to complete a 2001 land sale because the seller—not the buyer—broke the agreement first.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit was time-barred under the Limitation of Actions Act
The issue of limitation was not a legitimate issue for determination as it was never pleaded in the defence or counterclaim.
The Defendant sought to rely on limitation at submissions stage though it was absent from her pleadings. Applying the Court of Appeal's decision in Stephen Onyango Achola and Order 2 rule 4(1) of the Civil Procedure Rules, the court held that a party must specifically plead limitation to rely on it, and a party entitled to the defence may waive it. Accordingly, the plea failed.
Admissibility of the unstamped sale agreement
The agreement, already admitted in evidence without objection at trial, was not rendered inadmissible; the Plaintiff was directed to pay stamp duty and penalties out of time.
The Defendant never objected to production of the agreement at trial, which would have allowed the Plaintiff to seek leave to stamp it. Following Keshavji Jivraj Shah v Kanwal Sarjit Singh Dhiman, the court treated non-stamping as curable under Sections 19(3) and 20 of the Stamp Duty Act and directed payment upon delivery of judgment with evidence of payment filed within a set period.
Which party breached the sale agreement
It was the deceased who was in breach by failing to avail the consent to transfer and duly signed transfer instruments within the completion period.
Clause 3 obliged the deceased to obtain the rates clearance certificate and consent to transfer at his cost. The letter of 26th July 2001 was merely conditional approval, one condition being payment of consent fees at 2% of consideration, which was never paid. No executed transfer instrument was produced. Since the balance was payable upon signing transfer instruments, the Plaintiff's failure to pay the balance was not default.
Whether the Plaintiff was entitled to specific performance
Yes; the court found the Plaintiff always ready and willing to perform and granted specific performance.
Having found the deceased in breach, the court held that a defaulting party cannot rescind an agreement to his advantage by refunding the deposit. The Plaintiff paid the deposit and an extra Kshs.80,000/-, leaving only Kshs.120,000/- outstanding payable on completion. Specific performance was granted with liberty to pay the consent fee and set it off against the balance.
Whether the counterclaim was proved
The counterclaim was dismissed in its entirety as the Defendant failed to prove it.
The counterclaim sought eviction and a compelled refund less 20% liquidated damages. Since the breach lay with the deceased, the Plaintiff's occupation was with consent and not trespass, and a defaulting party cannot claim remedies from his own breach. The court found the counterclaim unproved to the required standard.
Legal principles established
#- Cases must be decided on the issues pleaded; a party who fails to plead limitation cannot rely on it at trial and may waive the defence
- An unstamped instrument is not fatally defective; the court may direct stamping out of time under Sections 19(3) and 20 of the Stamp Duty Act
- A party in breach of an agreement cannot rescind it to his advantage nor claim remedies flowing from his own breach
- Conditional approval by the Commissioner of Lands becomes valid only upon fulfilment of the conditions imposed
- Costs follow the event unless the court, for good reason, directs otherwise
Court orders
#- 1.The Plaintiff's suit is allowed in terms of prayer (a) and an order for specific performance of the sale agreement dated 22nd February, 2001 is made directing the Defendant to transfer Title No. Nyeri Municipality Block 1/1133 to the Plaintiff within 14 days from the date of judgment.
- 2.In default of the Defendant's compliance, the Deputy Registrar of the court shall sign and execute all necessary documents to facilitate transfer of the suit property to the Plaintiff.
- 3.The Plaintiff shall be at liberty to pay the consent fee of 2% on behalf of the Defendant and set off the same against the balance of the purchase price.
- 4.The Plaintiff shall pay stamp duty on the sale agreement dated 22nd January, 2001 together with any penalties and interest thereon within 14 days and file evidence of payment in court.
- 5.The Defendant's counterclaim is dismissed in its entirety.
- 6.The Plaintiff is awarded costs of the suit and the counterclaim.
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a dispute relating to Title No. Nyeri Municipality/Block 1/1133 (specific provision not stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Margaret Wangechi Nderi v Julia Wanjiku Justus [2021] KEELC 2740 (KLR)", Case Analysis (2021). Nyeri ELC Civil Suit (as stated in the plaint dated 5th May 2008; number not reproduced in the judgment text). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2740/eng@2021-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.