Mulela v Fort Properties Limited (Environment & Land Case 162 of 2015) [2022] KEELC 3774 (KLR)
The bottom line
#A Mombasa court ordered a land seller to transfer a fully-paid plot, ruling the buyer didn't owe extra transfer costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the sale agreement complied with the statutory formalities for contracts disposing of an interest in land
The agreement was in writing and signed by the parties, satisfying section 3(3) of the Contract Act, and was a valid enforceable sale agreement
The court perused the sale agreement produced as PExhibit 1 and found it was in writing and signed by the parties, meeting the requirements of section 3(3) of the Contract Act. It contained the parties' names, property description, purchase price and conditions, and was therefore a valid agreement enforceable by the parties, consistent with the Nelson Kivuvani authority.
Whether the purchase price was inclusive of incidental costs such as stamp duty, registration and legal fees
Clause 4 of the special conditions provided the purchase price was inclusive of advocates' fees, stamp duty and registration fees, so the Defendant could not demand the Kshs.137,680.00 disbursements
The court found that clause 4 under the special conditions of the agreement expressly made the purchase price inclusive of advocates' fees, stamp duty and registration fees. Consequently the Defendant's claim that the purchaser should absorb those costs contrary to the agreement could not stand, and the Plaintiff's claim for a declaration to that effect succeeded.
Whether the Plaintiff was entitled to specific performance despite alleged breach of the seven-day completion clause
Specific performance was granted because a valid contract existed and the Plaintiff proved her case on a balance of probabilities
The court held specific performance is discretionary and must be decided on the merits. Relying on the principle that the jurisdiction is based on the existence of a valid enforceable contract, and having found the agreement valid and the purchase price fully paid, the court found the Plaintiff had proved her case on a balance of probabilities and ordered transfer of the property and issuance of the title deed.
Legal principles established
#- An agreement for sale of land that is in writing, signed by the parties, and containing the parties' names, property description, purchase price and conditions satisfies section 3(3) of the Contract Act and is a valid enforceable contract
- Specific performance is a discretionary remedy granted on the merits where a valid enforceable contract exists and damages are inadequate
Court orders
#- 1.A declaration that the purchase price included all other payments payable by the purchasers with regard to plot No.8604 (Original number 1872/328)
- 2.An order that the defendant does transfer the property subject matter hereof and give to the plaintiff a title deed as per the agreement
- 3.Costs of this suit to be paid by the Defendant
- Jurisdiction invoked
- Original civil jurisdiction over the claim for specific performance of a contract for sale of land (Environment and Land Court); the judgment does not cite a specific constitutional provision
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mulela v Fort Properties Limited (Environment & Land Case 162 of 2015) [2022] KEELC 3774 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3774/eng@2022-06-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.