Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedMalindi ELC (not stated on the judgment excerpt)· [2021] KEELC 4587 (KLR)

Kadhengi Kalama Fondo v Sangaba Yusuf Abdi [2021] KEELC 4587 (KLR)

Environment and Land Court
29 January 2021
JOJ. O. Olola
2,107 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court rescinded a 1999 land sale because the buyer stopped paying and ignored a notice to complete the purchase.

What this practically means

#

Executive summary

#
The Plaintiff sued for a declaration rescinding a sale agreement dated 1st December 1999 under which he sold three acres of Plot No. 218 Mtondia Settlement Scheme to the Defendant at Kshs 165,000/-. He contended that only Kshs 50,000/- (later stated as Kshs 123,000/-) had been paid and that the Defendant refused to collect the refund of the deposit from his advocates. The Defendant admitted the agreement but claimed she had paid Kshs 140,000/-, blamed the Plaintiff for failing to obtain Land Control Board consent, and counterclaimed for specific performance: acceptance of the Kshs 25,000/- balance, obtaining consent, transfer of the land, and execution of the transfer by the Deputy Registrar. At trial, the Plaintiff (PW1) testified alone, while the Defendant called her son (DW1) and cousin (DW2), who detailed the instalments and an alleged 2012 tender of Kshs 42,000/- at the Chief's Office. The court found documentary evidence of payments of only Kshs 128,000/-, discounted the alleged 2012 tender since the Chief's confirming letter was written only in July 2017 when the matter was already in court, and noted the Plaintiff had applied for subdivision and Land Control Board consent shortly after the agreement. Applying Njamunyu v Nyaga (1983) KLR 282, the court held that the Defendant, having defaulted and ignored the 21-day completion notice of 1st October 2013, could not resist rescission nor sustain the Counterclaim. The agreement was rescinded, the Plaintiff's suit allowed as prayed, with costs to the Plaintiff. Judgment delivered at Malindi on 29th January 2021 by J.O. Olola, Judge.

Key legal issues

#
01

Whether the Defendant was in default of the sale agreement so as to justify rescission

Holding

The Defendant was in default; she last paid an instalment on 6th January 2002, made no genuine attempt to pay the balance for over ten years, and failed to comply with the 21-day completion notice issued on 1st October 2013

Reasoning

The court found evidence of payments amounting to only Kshs 128,000/- against a purchase price of Kshs 165,000/-. The purported 2012 tender of Kshs 42,000/- was discredited because the Chief's letter confirming it was written only in July 2017 when the matter was already in court. The Plaintiff had performed his part by sub-dividing the land and applying for Land Control Board consent within two months of the agreement. After notice was given and ignored, rescission properly followed, applying Njamunyu v Nyaga.

p. 3
02

Whether the Defendant's Counterclaim for specific performance could succeed

Holding

The Counterclaim fails because the Defendant was the party in default and did not comply with the notice to complete

Reasoning

A party seeking specific performance must demonstrate readiness and willingness to perform. The Defendant neither completed payment within a reasonable time nor responded to the 21-day notice of 1st October 2013. Her claim that she tendered the balance in 2012 was found unconvincing on the documentary evidence. Having defaulted, she could not compel the Plaintiff to accept the balance, obtain consent, or transfer the three acres.

p. 3

Legal principles established

#
  • Where completion has not taken place as intended, the party in default must be notified of the default and given reasonable time to rectify before the agreement is rescinded
  • Rescission arises where a party in default fails to perform after notice to perform the contract

Court orders

#
  1. 1.The sale agreement dated 1st December 1999 is rescinded
  2. 2.The Plaintiff's suit is allowed as prayed with costs

Authorities

#

Cases cited (1)

  • Njamunyu –vs- Nyaga
    (1983) KLR 282
Jurisdiction invoked
Not expressly stated; original civil jurisdiction of the Environment and Land Court over a land sale agreement dispute

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kadhengi Kalama Fondo v Sangaba Yusuf Abdi [2021] KEELC 4587 (KLR)", Case Analysis (2021). Malindi ELC (not stated on the judgment excerpt). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4587/eng@2021-01-29

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