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ELCPartially AllowedNot stated in the excerpt· [2022] KEELC 2394 (KLR)

Nzomo (Suing as the Legal Representative of the Estate of the Late Daniel Nzomo Wambua) v Makueni County Government (Environment & Land Case 355 of 2017) [2022] KEELC 2394 (KLR)

Environment and Land Court
31 May 2022
5,080 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ordered Makueni County to pay Kshs 40 million for land it occupied without paying the purchase price.

What this practically means

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Executive summary

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The plaintiff sued the County Government of Makueni (successor of the defunct Wote Town Council) for eviction, compensation at Kshs. 62,000,000/-, mesne profits of Kshs. 55,000,000/-, general damages for trespass, interest and costs over 0.8147 hectares of Makueni/Unoa/1573 occupied as the Wote Bus Park. The parties entered a sale agreement on December 5, 2002 for Kshs. 2,800,000/- payable in instalments ending July 2003; the purchase price was never paid. The defendant contended the agreement was invalid for want of proper attestation, that the plaintiff refused two cheques, and that time was not of the essence. The court held the agreement valid under section 3(3) of the Law of Contract Act, properly witnessed by the District Commissioner. Following Aida Nunes, it held that where time is not of the essence, termination required a notice; the plaintiff's April 2, 2003 notice validly made time the essence, the defendant defaulted, and the agreement irredeemably lapsed. The mesne profits claim failed as speculative since the date possession was taken was indeterminate, and mesne profits and trespass damages cannot both be awarded. Compensation was assessed at approximately Kshs. 40,000,000/- based on uncontradicted valuation evidence. Mindful that the suit property is a public utility, the court ordered the defendant to pay Kshs. 40,000,000/- within 120 days; in default, eviction would issue, with Kshs. 2,000,000/- general damages for trespass, plus costs and interest at court rates.

Key legal issues

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01

Validity of the sale agreement

Holding

The sale agreement dated December 5, 2002 was valid and legally binding, complying with section 3(3) of the Law of Contract Act as it was written, signed by the parties and witnessed by the District Commissioner

Reasoning

The court applied section 3(3) of the Law of Contract Act and found the agreement was in writing, signed by all parties and attested by the District Commissioner, Makueni District, despite the defendant's contention about attestation by the Council Chairman. The Halsbury elements of a valid contract were also all present, and both parties acted on the agreement intending legal relations.

p. 6
02

Which party breached the sale agreement

Holding

The defendant breached the agreement by failing to pay the purchase price within the agreed timelines, and the plaintiff's April 2, 2003 notice lawfully made time the essence; the agreement lapsed on April 16, 2003

Reasoning

Relying on Aida Nunes v John Mbiyo Njonjo, the court held that absent an express time-is-the-essence clause, termination required a notice. The plaintiff served a 14-day notice on April 2, 2003 which the defendant ignored. The defendant's delay was unreasonable and the agreement irredeemably lapsed on account of the defendant's breach.

p. 7
03

Whether the plaintiff was entitled to mesne profits of Kshs. 55,000,000/-

Holding

The claim for mesne profits was refused as speculative because the date the defendant took possession was indeterminate

Reasoning

Section 2 of the Civil Procedure Act defines mesne profits; the Court of Appeal in Christine Nyanchama Oanda requires them to be pleaded and proved, and prohibits double recovery of mesne profits and trespass damages. The valuation report indicated possession was taken in 2002 while the plaint pleaded from 1990, making the award speculative.

p. 8
04

Compensation at current market value and general damages for trespass

Holding

The plaintiff was entitled to compensation of approximately Kshs. 40,000,000/= calculated from the uncontroverted valuation, with general damages of Kshs. 2,000,000/= for trespass payable in default

Reasoning

The valuation of Kshs. 2,500,000/= per 0.125 acres was not contradicted by evidence. The court computed the value of 2.013 acres at approximately Kshs. 40,000,000/=. The defendant's continued possession after the agreement lapsed constituted trespass to land, justifying general damages. Because the property is a public utility, compensation was preferred over immediate eviction.

p. 9

Legal principles established

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  • Where time has not been made the essence of a land sale contract, a party cannot avoid it for unreasonable delay until a notice making time the essence has been served
  • A land sale agreement without a time-is-the-essence clause becomes voidable, not void, upon default, at the election of the performing party
  • A claimant cannot recover both mesne profits and damages for trespass; only one may be granted
  • A contract for disposition of an interest in land must comply with section 3(3) of the Law of Contract Act - in writing, signed by all parties and attested by a witness
  • Mandatory injunctions (including eviction orders) should issue only in the clearest and special cases, with utmost care and reluctance

Court orders

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  1. 1.The defendant is ordered to compensate the plaintiff for the portion of land it is occupying measuring 0.8147 hectares within Makueni/Unoa/1573 at the current market value of Kshs. 40,000,000/= within One Hundred and Twenty (120) days
  2. 2.In default of payment, an eviction order shall issue in terms of prayer (a) of the Amended Plaint
  3. 3.In default of (a), the plaintiff is awarded Kshs. 2,000,000/= general damages for trespass
  4. 4.Costs and interest at court rates

Authorities

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Legislation

  • Law of Contract Actsection 3(3)
  • Civil Procedure Actsection 2 (definition of mesne profits)

Cases cited (19)

  • Margaret Ngina Kamau v Christopher Karanja Muchai & another
    [2021] eKLR
  • Stima Investment Co-operative Society Limited v David Waiganjo Kigwe
    [2020] eKLR
  • Nebart Njeru Munyi v Nicholas Muriithi Zakaria
    [2015] eKLR
  • George Njenga Kagai v Samuel Kabi Njoroge & another
    [2019] eKLR
  • Fredrick Korir v Soin United Women Group (Sued through Eunice Towett, Jane Mwolomet, Lucio Chebocho
    [2018] eKLR
  • Leo Investment Ltd v Estuarine Estate Ltd
    [2017] eKLR
  • Gurdev Singh Birdi & another v Abubakar Madhbuti
    [1997] eKLR
  • Richard Mugaa v Cyrus Muthui Mwaura
    [2021] eKLR
  • Peter Mwangi Mbuthia & another v Samow Edin Osman
    [2014] eKLR
  • Chief Land Registrar & others v Nathan Tirop Koech & 4 others
    [2018] eKLR
  • Aida Nunes v John Mbiyo Njonjo and Charles Kigwe
    [1962] 1 EA 88
  • Christine Nyanchama Oanda v Catholic Diocese of Homa Bay Registered Trustees
    [2020] eKLR
  • Peter Mwangi Msuitia & another v Samow Edin Osman
    [2014] eKLR
  • Inverugie Investment v Hackett
    [1995] 3 AllER 842
  • Kenya Hotel Proprietors Ltd v Willesden Investments Ltd
    [2009] KLR 126
  • Kenya Power & Lighting Company Ltd & another v Ringera & 2 others
    (Civil Appeal E247 & E248 of 2020 (Consolidated)) [2022] KECA 104 (KLR)
  • Philip Ayaya Aluchio v Crispinus Ngayo
    [2014] eKLR
  • Kamau Mucuha v Ripples Ltd
    [1993] eKLR
  • Hostler v GreenPark Development Co
    986 S W 2d 500
Jurisdiction invoked
Original civil suit on land contract, trespass and title (Environment and Land Court); no constitutional/statutory jurisdictional provision expressly invoked

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, "Nzomo (Suing as the Legal Representative of the Estate of the Late Daniel Nzomo Wambua) v Makueni County Government (Environment & Land Case 355 of 2017) [2022] KEELC 2394 (KLR)", Case Analysis (2022). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2394/eng@2022-05-31

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