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ELCPartially AllowedELC Case No. 232 of 2011· [2022] KEELC 2080 (KLR)

Josephin Nyevu Mwadziwe & another v Francis Mujumba Aluha & another [2022] KEELC 2080 (KLR)

Environment and Land Court
18 January 2022
2,500 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 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

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Executive summary

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The plaintiffs, administrators of the estate of the late Joseph Mwadziwe Mwinga and co-registered owners of Plot Nairobi Block 96/19, sued the defendants for vacant possession and removal of a caution placed on the title. They alleged that under a sale agreement dated 5th February 1996 the defendants were to pay a deposit and the entire balance of the purchase price by 30th April 1996, after which the vendors would clear the loan with Savings and Loan Kenya Limited and execute a transfer. The balance was never paid, and the defendants remained in occupation without paying rent from May 1996. The defendants countered that the contract remained valid and enforceable, that the balance was to be financed by the bank upon execution and delivery of a transfer against a professional undertaking, that the plaintiffs frustrated the transaction, and that a suit for specific performance (NRB HC Civil Case No. 806 of 1997 (O.S.)) was still pending. The court found the sale agreement valid under Section 3(3) of the Law of Contract Act, applying the parol evidence rule and the principle that courts cannot rewrite contracts. It held the defendants breached the agreement by failing to pay the balance on the due date, with no evidence of variation or frustration. The plaintiffs' claim for damages for loss of rent failed, as damages for breach of contract must be specifically pleaded and proved and general damages are not available for breach of contract. The court granted vacant possession within 90 days, ordered removal of the caution after that period, and awarded costs to the plaintiffs.

Key legal issues

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01

Validity of the sale agreement

Holding

The sale agreement dated 5th February 1996 satisfied Section 3(3) of the Law of Contract Act and was valid

Reasoning

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.

p. 2
02

Breach of the agreement

Holding

The defendants breached the contract by failing to pay the balance of the purchase price on or before 30th April 1996

Reasoning

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.

p. 2
03

Entitlement to vacant possession and removal of caution

Holding

The plaintiffs proved their case on a balance of probabilities and were granted vacant possession and removal of the caution

Reasoning

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.

p. 3
04

Damages for breach of contract

Holding

General damages for breach of contract could not be awarded as damages were not specifically pleaded and proved

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 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. 3.Costs to the Plaintiffs

Authorities

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Legislation

  • Law of Contract ActSection 3(3)

Cases cited (9)

  • Nelson Kivuvani vs Yuda Komora & Another
    Nairobi HCCC No. 956 of 1991
  • Fidelity Commercial Bank Limited vs Kenya Grange Vehicle Industries Limited
    Civil Appeal No. 61 of 2013 (eKLR)
  • Prudential Assurance Company of Kenya Limited vs Sukhwender Singh Jutney and Another
    Civil Appeal No. 23 of 2005
  • Pius Kimaiyo Langat v Co-operative Bank of Kenya Limited
    (2017) eKLR
  • Rufale vs Umon Manufacturing Co. (Ramsboltom)
    (1918) L.R 1KB 592
  • Attorney General of Belize et al vs Belize Telecom Ltd & Another
    (2009) 1 WLR 1980
  • Trollope Colls Ltd Vs North West Metropolitan Regional Hospital Board
    (1973) I WLR 601
  • Habib Zurich Finance (K) Limited vs Muthoga & Another
    (2002) 1 EA 81
  • Dharamshi vs Karan
    1974, EA 41
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

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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, "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.