Vipingo Properties Limited v Randolph Tindika; Registrar of Titles (Interested Party) [2022] KEELC 1441 (KLR)

The court construed clause 4.1 as requiring the purchaser to pay the balance by RTGS against receipt of the completion documents by his advocates, a contemporaneous exchange. No vendor would surrender original title documents without seeing the money or proof of its existence. The respondent could have inspected the originals, shown proof of funds, procured an undertaking, served a clause 5.2 notice, rescinded, or sued for specific performance, but did none of these. Clause 4.2 protected him from losing money as the balance was held as stakeholder.

The court found as a fact that the respondent did not have the balance of the purchase price and was stalling. Completion fell due 90 days from 2 June 2017 (about 31 August 2017); the money never came despite copies of completion documents being sent by email. The respondent's claim that he never received even copies was disbelieved, since his own affidavits deposed that he received copies.

Section 73(1) permits removal of a caution by the cautioner, by court order, or by the Registrar. Having found the respondent breached and the agreement rescinded, the respondent had no proprietary interest left to protect. Clause 5 of the agreement obliged the respondent to withdraw the caveats within 7 days of failure to pay, which he did not do, entitling the applicant to approach the court.

The court reasoned that had no copies been attached to the emails and letters, the respondent would have replied pointing out that nothing was attached, which he did not do. In his own affidavits the respondent deposed that he received copies, making only a general allegation that they were not in line with clause 4.1 without identifying what was missing.