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ELCDismissedELC No. 535 of 2013· [2021] KEELC 3420 (KLR)

Zipporah Muthoni Ndungu v Kenya Industrial Estates Ltd & another [2021] KEELC 3420 (KLR)

Environment and Land Court
4 February 2021
EOE. O. Obaga
4,704 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a buyer's claim against Kenya Industrial Estates, confirming lawful repossession after payment default and refusing unproven damages claims.

What this practically means

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Executive summary

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The suit, originally filed in 2003 by Simon Ndungu Gathaiya (since deceased and substituted by his wife Zipporah Muthoni Ndungu), concerned Shed No. 48 on LR No. 209/11501, Industrial Area, Nairobi. The deceased had taken over a tenant-purchase arrangement from Japhet G Shamalla and entered into an agreement with Kenya Industrial Estates Ltd dated 13th April 1995, undertaking to repay the mortgage inherited from Shamalla. After persistent default, the Defendant issued a repossession notice in January 2003 and repossessed the premises in May 2004. The Plaintiff sought specific performance, a declaration that the repossession was unlawful, an injunction, accounts and refund, special damages of Kshs.38,820,853/=, damages for breach of contract, trespass and aggravated damages. The court framed four issues: breach, lawfulness of repossession, entitlement to reliefs, and costs. It found that the agreement did not oblige the Defendant to process title to be charged as security, that the deceased was in substantial arrears (over Kshs.10 million outstanding at filing), and that the repossession complied with clause 8 of the agreement following one month's notice. Specific performance was refused as the deceased had not performed his obligations; special damages failed for want of pleading and proof; general damages for breach of contract are not allowable in addition to quantified damages; and no trespass or aggravated damages were made out. The suit was dismissed with costs to the Defendant on 4th February 2021.

Key legal issues

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01

Whether the Defendant breached the agreement of 13th April 1995

Holding

The Defendant did not breach the agreement; the agreement was not predicated on the processing of title to be charged as security.

Reasoning

The court found the agreement clear in its terms: monthly installments of Kshs.51,283.65 under clause 7 and repossession upon default on one month's notice under clause 8. There was no term requiring the Defendant to process a title to be charged as security, so interest was properly chargeable on the mortgage taken over from Shamalla, and the deceased was persistently in arrears.

p. 3
02

Whether the repossession of the suit premises was lawful

Holding

The repossession was lawful and in accordance with clause 8 of the agreement.

Reasoning

The deceased was in default of installments; the Defendant issued a repossession notice by letter dated 23rd January 2003 giving one month's notice as the agreement required, and thereafter repossessed the premises on 26th May 2004. The court held nothing unlawful occurred.

p. 3
03

Whether the Plaintiff proved special damages

Holding

The special damages claim failed for want of pleading and proof.

Reasoning

PW1 gave no evidence touching on the claimed Kshs.38,820,853/= or the Kshs.90,000/= monthly rental income. The valuer's figures (mesne profits of Kshs.14,190,000/= and loss of rental income of Kshs.20,640,000/=) were never pleaded and did not support the pleaded claim. Moreover, the deceased having failed to complete the purchase could not claim rental income or mesne profits.

p. 5

Legal principles established

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  • Specific performance is an equitable remedy available only where the claimant has performed or is ready and willing to perform his obligations under the contract.
  • Special damages must be specifically pleaded and strictly proved with as much particularity as circumstances permit.
  • General damages are not allowable in addition to quantified damages for breach of contract.

Court orders

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  1. 1.The Plaintiff's suit is dismissed with costs to the Defendant

Authorities

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Cases cited (8)

  • Purple Rose Trading Company Limited Vs Bhanoo Shashikant Jai
    (2014) eKLR
  • Gurdev Singh Birdi and Marinder Singh Ghatora and Abubakar Madhbuti
    Civil Appeal No.165 of 1996
  • Capital Fish Kenya Limited Vs The Kenya Power & Lighting Company Limited
    (2016) eKLR
  • National Social Security Fund Board of Trustees vs Sifa International Limited
    (2016) eKLR
  • Macharia & Waiguru vs Muranga Municipal Council & Another
    (2014) eKLR
  • Provincial Insurance Co. EA Ltd vs Mordekai Mwanga Nandwa
    KSM CACA 179 of 1995
  • Dharamsi Vs Karsan
    (1974) EA
  • Nairobi Star Publication Ltd Vs Elizabeth Atieno Oyoo
    (2018) eKLR
Jurisdiction invoked
Environment and Land Court, Environment and Land Court Act (original jurisdiction over land disputes)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Zipporah Muthoni Ndungu v Kenya Industrial Estates Ltd & another [2021] KEELC 3420 (KLR)", Case Analysis (2021). ELC No. 535 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3420/eng@2021-02-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.