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ELCPartially AllowedNot stated in judgment· [2022] KEELC 876 (KLR)

Francis Muthusi Kiminza & 11 others v Amboseli Court Limited [2022] KEELC 876 (KLR)

Environment and Land Court
21 February 2022
3,110 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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Twelve plaintiffs sued over plots carved out of LR No. 15400, Kayole, which the defendant sold to them between 1994 and 1996. They contended that they paid the purchase prices in full, received letters confirming full payment and authorising development, but after litigation between the defendant and third parties concluded, the defendant demanded increased purchase prices and threatened resale. They sought injunction, a declaration against the price increase, specific performance, refunds, damages and costs. On 11/3/2019 the plaintiffs withdrew the injunction and specific performance prayers. The defendant filed a defence in 2017 alleging prices were provisional, but tendered no evidence and did not cross-examine the ten plaintiffs who testified, each producing receipts for payments ranging from Kshs 205,000 to Kshs 555,000. The court framed three issues: breach, entitlement to reliefs, and costs. It found the defendant's demand for more money and resale to third parties constituted breach of the sale agreements as regards the ten plaintiffs who led evidence; no evidence supported the claims of Pamela Agola Opiyo and Francis Mbuthia Mukuna. Specific performance and injunction had been abandoned; general damages are not awardable in contract and special damages were unsupported. Judgment was entered for the ten successful plaintiffs for refunds of their respective payments, with interest at court rates from filing suit, and the defendant to bear their costs. The two unsupported claims were dismissed with costs to the defendant.

Key legal issues

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01

Whether the defendant breached the sale agreements

Holding

Yes, in respect of the ten plaintiffs who tendered evidence

Reasoning

The ten plaintiffs produced letters confirming full payment of purchase price and authorising them to take possession; the letters did not allude to additional monies. The defendant filed a defence but tendered no evidence and did not cross-examine the plaintiffs. Its demands for more money and resale to third parties therefore constituted breach. No evidence supported the claims of Opiyo and Mukuna.

p. 4
02

What reliefs are available

Holding

Only refund of purchase prices/deposits with interest; injunction, specific performance, general and special damages unavailable

Reasoning

The plaintiffs abandoned injunction and specific performance; general damages are not awardable in contract and no evidence supported special damages. Since the defendant retained the money although the plots were no longer available, refund with interest at court rates from filing suit was granted.

p. 4
03

Costs

Holding

Defendant to pay costs of the successful plaintiffs

Reasoning

Having breached the agreements and lost the suit as against the ten plaintiffs who led evidence, the defendant was ordered to bear their costs, while the two unsuccessful plaintiffs bore the defendant's costs.

p. 5

Legal principles established

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  • Where letters confirm receipt of full purchase price and authorise possession, the seller cannot demand additional purchase price or resell the plots; doing so is breach of the sale agreements
  • Unchallenged evidence, where the defendant neither tendered evidence nor cross-examined, is uncontroverted and must be accepted
  • General damages are not awardable in a claim founded on breach of contract

Court orders

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  1. 1.Judgment entered in favour of the 10 plaintiffs who led evidence, for refund of moneys paid to the defendant (Kshs 205,000; 555,000; 205,000; 285,000; 205,000; 250,000; 258,000; 255,000; 350,000; 250,000 respectively)
  2. 2.Interest on those sums at court rate from the date of filing the suit
  3. 3.The defendant to bear the costs of the ten successful plaintiffs
  4. 4.The claims of the two plaintiffs who did not lead evidence dismissed with costs to the defendant
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act over the contract for sale of land dispute (not expressly cited in judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Francis Muthusi Kiminza & 11 others v Amboseli Court Limited [2022] KEELC 876 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/876/eng@2022-02-21

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