Elizabeth Wanjiru Kamau & another v James Mubia Gitumbi & another [2021] KEELC 4769 (KLR)
The bottom line
#A Kenyan court ruled that a land buyer who broke the payment terms could not force the sale, and the advocate who handled the deal for both sides must return the title deed.
What this practically means
#Executive summary
#Key legal issues
#Breach of the sale agreement dated 27th March 2009
It was the 1st Defendant who breached the agreement by failing to pay the full stakeholder sum at execution, failing to pay the balance within 90 days, and failing to pay rates and rents.
The written agreement required payment of Kes.2,000,000 deposit at execution and the balance of the purchase price within 90 days or 7 days after registration, whichever was earlier, together with rates and rents. Only Kes.1,000,000 was paid at execution; the balance of the deposit came almost a year later; the rates were ultimately paid by the Plaintiffs. The 90-day period expired on 28th June 2009 without compliance, entitling the Plaintiffs to repudiate.
Professional impartiality of the 2nd Defendant as advocate for both parties
The 2nd Defendant failed to exercise impartiality, due diligence and professional competence by attesting the agreement as if the deposit had been paid and by releasing the original title to the 1st Defendant on alleged verbal instructions.
Acting for both sides, the 2nd Defendant attested signatures creating an impression that the full stakeholder sum had been paid when only Kes.1,000,000 had. She failed to act on the Plaintiffs' protests and released the original title before payment of the purchase price without written instructions, contrary to the rule that a written contract can only be varied in writing.
1st Defendant's entitlement to specific performance
The 1st Defendant, being in breach, is not entitled to the equitable remedy of specific performance; the counterclaim is dismissed.
Specific performance is discretionary and equitable; a party seeking it must have performed his own obligations. The 1st Defendant neither completed the deposit, paid the purchase price within 90 days, nor settled the rates. Granting the order would sanction an illegality and be contrary to social justice under Article 10(2)(b) of the Constitution.
Damages for breach of contract
No damages awarded because none were specifically pleaded or particularly proved.
The plaint did not specify the nature or quantum of the damages claimed. Damages for breach of contract are special in nature, ascertainable from the onset, and must be specifically pleaded and particularly proved; absent such pleading, none are awardable.
Legal principles established
#- A written contract binds the parties and cannot be varied by oral evidence; extrinsic evidence cannot contradict, vary or add to the terms of a written document.
- A court of law cannot re-write a contract between the parties; parties are bound by the terms of their contract unless coercion, fraud or undue influence are pleaded and proved.
- Specific performance is a discretionary equitable remedy granted only where the plaintiff has performed his own obligations and it is just and equitable to grant it.
- Damages for breach of contract are in the nature of special damages and must be pleaded and proved.
Court orders
#- 1.Declaration issued that the sale agreement dated 27th March 2009 was breached by the 1st Defendant.
- 2.Order directing the Defendants, jointly and/or severally, to surrender and/or hand over the original title document in respect of L.R No. 9363/7 to the Plaintiffs forthwith and in any event within 14 days.
- 3.The 1st Defendant's counterclaim dated 1st August 2011 dismissed.
- 4.Plaintiffs awarded the costs of the suit and the counterclaim.
- 5.Plaintiffs at liberty to pursue the issue of professional misconduct with the Advocates Disciplinary Tribunal under the Advocates Act, Chapter 16 Laws of Kenya.
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land contracts and title (L.R No. 9363/7)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Elizabeth Wanjiru Kamau & another v James Mubia Gitumbi & another [2021] KEELC 4769 (KLR)", Case Analysis (2021). ELC Case (Plaint dated 10th June 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4769/eng@2021-11-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.