Josephin Nyevu Mwadziwe & another v Francis Mujumba Aluha & another [2022] KEELC 2080 (KLR)
The bottom line
#A Kenyan court ordered land buyers to vacate after 26 years because they never paid the purchase balance, and refused the sellers' rent damages claim.
What this practically means
#Executive summary
#Key legal issues
#Validity of the sale agreement
The sale agreement dated 5th February 1996 satisfied Section 3(3) of the Law of Contract Act and was valid
The agreement contained the parties' names, the property number, the purchase price, the conditions and obligations of the parties, and was signed and witnessed by two witnesses, meeting the requirements set out in the Nelson Kivuvani v Yuda Komora authority and Section 3(3) of the Contract Act.
Breach of the agreement
The defendants breached the contract by failing to pay the balance of the purchase price on or before 30th April 1996
The terms of the written agreement were clear: the deposit was payable on execution and the entire balance on or before 30th April 1996. Under the parol evidence rule, extrinsic evidence could not vary this term. The defendants never paid the balance, made no attempt to deposit it in court, and no evidence showed the plaintiffs frustrated the contract. The court cannot rewrite the contract.
Entitlement to vacant possession and removal of caution
The plaintiffs proved their case on a balance of probabilities and were granted vacant possession and removal of the caution
Having found the contract valid and breached by the defendants, whose continued occupation lacked lawful basis, the court ordered the defendants to vacate within 90 days and directed removal of the caution they had placed to safeguard their purchaser's interest after that period, and awarded costs to the plaintiffs.
Damages for breach of contract
General damages for breach of contract could not be awarded as damages were not specifically pleaded and proved
The plaintiffs sought compensation for loss of rent of Kshs. 8,000 per month from May 1996, asking the court to assess damages. Citing Dharamshi v Karan as approved in Habib Zurich Finance (K) Limited v Muthoga, the court held that general damages cannot be awarded for breach of contract because such damages are quantifiable, and damages must be specifically pleaded and proved.
Legal principles established
#- Courts are not to rewrite contracts between parties but to interpret the terms as agreed, absent coercion, fraud or undue influence
- An agreement for sale of land containing names of parties, property number, purchase price, conditions and signed and witnessed by two witnesses amounts to a valid contract satisfying Section 3(3) of the Law of Contract Act
- General damages cannot be awarded for breach of contract where damages are quantifiable
- No parol/extrinsic evidence is admissible to contradict, vary or alter the terms of a written contract
Court orders
#- 1.The defendants are to vacate the suit property Plot Block No. 96/19 and give vacant possession within 90 (ninety) days from the date of the judgment
- 2.An order to issue lifting and/or removing the caution placed on Plot No. Block 96/19 after 90 (ninety) days from the date of the judgment
- 3.Costs to the Plaintiffs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court (Environment and Land Court Act) over the suit property and the sale agreement dispute
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Josephin Nyevu Mwadziwe & another v Francis Mujumba Aluha & another [2022] KEELC 2080 (KLR)", Case Analysis (2022). ELC Case No. 232 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2080/eng@2022-01-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.