Susan Wanjiku Muthama v Malindi Estates Limited [2021] KEELC 3938 (KLR)
The bottom line
#A Kenyan court ordered a land seller to complete a 2007 sale after full payment, ruling that oral plot swaps cannot override a written agreement.
What this practically means
#Executive summary
#Key legal issues
#Payment of the purchase price
The court found the Defendant received the full purchase price of Kshs 650,000/- for Plot No. 4883
The Defendant's claim that only Kshs 450,000/- was paid was not candid: the receipts omitted the acknowledged Kshs 100,000/- deposit, two receipts had unexplained alterations (Kijabe Street crossed out), and no demand for the alleged Kshs 200,000/- balance was ever made even when transfer documents were requested in 2013.
Attempted variation of the property sold
No valid variation substituting Plot No. 4884 for Plot No. 4883; the claim of a balance was an afterthought
The Defendant alleged a mutual oral agreement to swap plots but produced no written variation. The Plaintiff denied agreeing to take an alternative plot. The court held the purported variation could not stand orally and that the balance claim was aimed at frustrating the Plaintiff.
Breach and entitlement to specific performance
The Defendant breached by refusing to execute the indenture and by failing to supply the correct Deed Plan for Plot No. 4883
Despite full payment, the Defendant declined to execute the transfer documents and insisted on providing a Deed Plan for Plot 4884, land the Plaintiff never purchased. The court accordingly ordered specific performance with the Deputy Registrar empowered to execute documents in default.
Damages
No damages awarded
Though the delay caused loss and damage, special damages were not proved and general damages are not generally recoverable for breach of contract. Only the prayer for specific performance succeeded.
Legal principles established
#- An agreement in writing requiring variations cannot be varied by oral agreement absent written agreement
- A vendor who accepts late part-payments without objection waives the contractual completion date
Court orders
#- 1.Judgment entered for the Plaintiff as prayed at paragraph 'a' of the Plaint - an order compelling the Defendant to perform and complete its part of the bargain under the contract executed on 7th May 2007, and in default of execution of registrable documents/transfer, the Deputy Registrar Malindi Law Courts to execute the same on behalf of the Defendant
- 2.Plaintiff awarded the costs of the suit
- Jurisdiction invoked
- Original civil jurisdiction over a claim for specific performance of a contract for sale of land
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Susan Wanjiku Muthama v Malindi Estates Limited [2021] KEELC 3938 (KLR)", Case Analysis (2021). Not stated in judgment (Plaint dated 19th June 2015, filed 2nd July 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3938/eng@2021-03-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.