Mercy Nkirote v Lawrence Ngaku Bundi & 2 Others [2022] KEELC 657 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Validity of the sale agreement between the appellant and the 1st respondent
The agreement dated 12.8.2014 was valid in law, complying with Section 3(3) of the Law of Contract Act and Section 38 of the Land Act.
The agreement was duly executed and witnessed, the vendor acknowledged receipt of the deposit, and no party pleaded illegality, coercion or undue influence. The parol evidence rule barred importation of extrinsic evidence to contradict its clear and unambiguous terms, including on who received the purchase monies.
Whether the appellant took lawful vacant possession
The appellant breached the agreement by failing to pay the balance by 1.9.2014 and could not lawfully take possession before that date; any entry and development without consent was unlawful.
Under the agreement, possession and utilization of the land were to follow clearance of the balance. The appellant tendered no evidence of demanding extension or seeking to complete. Her unilateral entry rendered her a trespasser under Section 3 of the Trespass Act, Cap 294, defeating claims against the 2nd and 3rd respondents.
Whether the 1st respondent's resale without notice breached the agreement
The appellant was entitled to a statutory thirty days' notice which had not been given when the 1st respondent resold on 8.11.2014; his failure to inform the 2nd respondent of the prior sale amounted to cheating, for which he was convicted.
Although the agreement had become voidable for non-compliance, the 1st respondent never issued a completion or rescission notice. The criminal conviction in Githongo SRM CR Case No. 1137 of 2017 under Section 315 of the Penal Code was unchallenged. The only remedy available to the appellant was refund of her deposit under Section 40 of the Land Act.
Liability of the 2nd and 3rd respondents
They were not liable; they were purchasers for value who obtained consent, transfer and title, and the appellant was a trespasser on the land.
The 2nd respondent bought the land on 8.11.2014, obtained land control board consent and was registered on 10.11.2016. They were strangers to the appellant's agreement, and there was no proof of collusion, fraud or connivance, nor proof that the 3rd respondent caused the crop damage.
Legal principles established
#- A purchaser who fails to complete payment on the agreed date breaches the contract and cannot unilaterally take vacant possession or develop the land without the vendor's consent.
- A vendor must issue the statutory thirty days' completion/breach notice under Sections 41 and 42 of the Land Act before rescinding a sale agreement.
- On a first appeal, the court must rehear, reassess and re-evaluate the lower court record and reach independent conclusions while bearing in mind the trial court's advantage of observing witness demeanour.
Court orders
#- 1.Appeal allowed.
- 2.The appellant's claim in the lower court against the 1st respondent allowed only in terms of prayer (1) for a refund of Kshs. 290,000/= with interest from 8.11.2014 until payment in full at court rates.
- 3.Prayers for general and special damages and permanent injunction against the 1st, 2nd and 3rd respondents dismissed.
- 4.Costs of the appeal and the suit to be met by the 1st respondent.
- On appeal from
- Chief Magistrate's Court (Tigania Law Courts)
- Not stated in the extract
- Jurisdiction invoked
- First appeal under Section 78 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mercy Nkirote v Lawrence Ngaku Bundi & 2 Others [2022] KEELC 657 (KLR)", Case Analysis (2022). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/657/eng@2022-03-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.