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ELCPartially AllowedNot stated in excerpt· [2022] KEELC 1006 (KLR)

Jeremiah Kiambi v Joseph Murori & another [2022] KEELC 1006 (KLR)

Environment and Land Court
9 March 2022
4,093 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan land buyer who failed to pay on time lost the land, and the court confirmed vendors can lawfully rescind and resell after proper notice.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Meru against the decision of the lower court in a land sale dispute. The appellant had sued the 1st respondent for breach of constructive trust over L.R. No. Abothuguchi/Kiija/1459, which he bought on 4.12.2012, seeking declarations, invalidation of a resale to the 2nd respondent, specific performance and an injunction. The respondents counterclaimed for liquidated damages and an injunction, alleging the appellant defaulted on the balance of the purchase price, leading to rescission and resale to the 2nd respondent. The ELC identified four issues: who breached the agreement, the implications of the breach, the lawfulness of rescission and resale, and whether the trial court was justified. The court found the appellant breached the agreement by failing to pay the balance by February 2013, that time was of the essence, that the 1st respondent lawfully rescinded after the demand letter and chief's baraza, and that constructive trust and proprietary estoppel failed because the appellant paid only Kshs. 60,000/= out of Kshs. 210,000/= and never tendered the balance. Specific performance was refused for lack of readiness and willingness. However, the Kshs. 420,000/= liquidated damages awarded on the counterclaim were set aside because special damages must be pleaded and proved, and no loss was demonstrated. The appeal succeeded only on the liquidated damages head. The lower court's dismissal of the suit was upheld, the counterclaim allowed in terms of prayer 2 with costs, and the appellant was granted half the costs of the appeal.

Key legal issues

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01

Who breached the sale agreement

Holding

The appellant breached by failing to pay the balance on the due dates

Reasoning

The appellant was to pay Kshs. 100,000/= by end of February 2013 and Kshs. 50,000/= at transfer. No evidence showed tender of payment or refusal by the vendor. The mutation form was filled in 2014, after the appellant was already in default. The court held the vendor had taken necessary steps and could not be in breach.

p. 4
02

Lawfulness of rescission and resale to the 2nd respondent

Holding

Rescission was lawful; time was of the essence and notice was given

Reasoning

After demand letter dated 3.3.2014 and the chief's office meeting giving the appellant two months to vacate, the vendor was entitled to rescind. The appellant's failure to complete despite occupation rendered his conduct unconscionable; he could not take advantage of his own wrongdoing.

p. 4
03

Constructive trust and proprietary estoppel

Holding

Not established; only Kshs. 60,000/= of Kshs. 210,000/= paid and no tender of the balance

Reasoning

The doctrine intervenes against unconscionable conduct. The appellant paid a fraction of the price, remained in occupation for ten years without paying, and never tendered the balance even during the hearing. Distinguished Kitilit where purchasers had paid substantially and taken possession.

p. 5
04

Liquidated damages of Kshs. 420,000/= on the counterclaim

Holding

Set aside; not pleaded nor proved and unjustified on the facts

Reasoning

Special damages must be pleaded and proved; the counterclaim also lacked a verifying affidavit. The vendor resold the land in 2015 for Kshs. 160,000/= and led no evidence of loss. The appellant's ten-year occupation meant no basis for the award.

p. 5

Legal principles established

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  • Where a purchaser drags his feet and is guilty of unnecessary delay, the vendor may serve notice upon whose expiry the sale agreement is treated as rescinded
  • Courts cannot rewrite a clear and unambiguous contract
  • Special damages must be both pleaded and proved
  • A court will not grant a remedy not applied for nor determine issues not pleaded

Court orders

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  1. 1.The lower court finding on the appellant's suit is upheld
  2. 2.The respondents' counterclaim is only allowed in terms of prayer 2 with costs
  3. 3.The appellant is granted half of the costs to this appeal
  4. 4.The claim of liquidated damages of Kshs. 420,000/= is set aside

Authorities

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Legislation

  • Evidence ActSections 109 and 112

Cases cited (19)

  • Edgar Erick Omoto & 7 Others -vs- Samuel Kisorio Moiben
    Kitale ELC No. 70 of 2014
  • Willy Kimutai Kitilit -vs- Michael Kibet
    Civil Appeal No. 51 of 2015; [2018] eKLR
  • Reliable Electronical Engineering Ltd -vs- Mantrac Kenya Ltd
    [2021] eKLR
  • Macharia Mwangi & 87 Others -vs- Davidson Mwangi Kagiri
    [2014] eKLR
  • Seascapes Ltd -vs- Development Finance Co. of Kenya Ltd
    [2009] KLR 384
  • Stephen Mutinda Mule & 3 Others -vs- Independent Electoral and Boundaries Commission
    [2014] eKLR
  • Housing Company of East Africa Limited -vs- Board of Trustees, National Social Security Fund & 2 Others
    [2018] eKLR
  • Nabro Properties Ltd -vs- Sky Structures Ltd & 2 Others
    [2002] eKLR; [2002] 2 KLR 299
  • Zacharia Waweru Thumbi -vs- Samuel Njoroge Thuku
    [2006] eKLR
  • Syedna & Others -vs- Jamil's Engineering Co. Limited
    [1973] 244
  • Gurdev Singh Birdi & Narinder Singh Ghatora as Trustees of Ramgharia Institute of Mombasa -vs- Abubakar Madhbuti
    [1997] eKLR
  • Ngaira -vs- Cheng'oli
    (Civil Appeal 397 of 2017) [2022] KECA 80 (KLR) (Civ) (4 February 2022)
  • Joel Mwangangi Kithure -vs- Priscah Mukorimburi
    [2022] eKLR
  • David Sironga Ole Tukai -vs- Francis Arap Muge & 2 Others
    [2014] eKLR
  • Jivanji -vs- Sanyo Electrical Co. Ltd.
    [2003] 11 E.A 98
  • Mithika M'Inoti -vs- Eusabia Nkuene Julius
    [2013] eKLR
  • Millicent Perpetua Atieno -vs- Louis Onyango Otieno
    [2013] eKLR
  • Capital Fish Kenya Limited -vs- The Kenya Power & Lighting Company Limited
    [2016] eKLR
  • Richard Mugaa -vs- Cyrus Muthui Mwaura
    [2021] eKLR
On appeal from
Magistrates' court (lower court)
Not stated
Jurisdiction invoked
First appeal to the Environment and Land Court against the decision of the lower court

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, "Jeremiah Kiambi v Joseph Murori & another [2022] KEELC 1006 (KLR)", Case Analysis (2022). Not stated in excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1006/eng@2022-03-09

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