Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedEnvironment and Land Case 107 of 2018· [2023] KEELC 16821 (KLR)

Ngomanze Investment Limited v Sammy & another

Environment and Land Court
17 April 2023
COChristine A Ochieng
2,040 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ordered land sellers to refund Kshs 2.6 million plus interest after failing to transfer land they had sold, confirming buyers can recover deposits and expenses.

What this practically means

#

Executive summary

#
The Plaintiff company sued the Defendants for refund of monies paid under a Sale Agreement dated 25th November 2014 for the purchase of one acre to be excised from Plot 2730 within Katelembo Athiani Mavuti Ranching Cooperative Society. The agreed purchase price was Kshs. 3,800,000, of which the Plaintiff paid Kshs. 2,400,000 and took possession, fencing the land at a cost of Kshs. 150,000. The Defendants had represented that the 1st Defendant purchased the land from the late Mulevu Mboya and that it would be transferred upon confirmation of the Grant of Letters of Administration. The Grant was confirmed but conferred no interest on the Plaintiff; third parties claiming to have bought the entire plot in 2014 entered the land, prompting the Plaintiff to rescind the agreement by letter dated 23rd February 2018 and demand a refund, which went unanswered. The Defendants, though served, neither entered appearance nor filed a defence. PW1, a director, adopted his witness statement and produced the Sale Agreement, payment evidence, receipts and correspondence. The court framed a single issue: whether the Plaintiff was entitled to the orders sought. Applying Section 3(3) of the Law of Contract Act, it found a valid written contract; on the uncontroverted evidence it found the Defendants breached the agreement by failing to transfer the land, and that the Plaintiff proved special damages by receipts. Relying on Millicent Perpetua Atieno v Louis Onyango Otieno on the measure of damages for a vendor's wrongful refusal to complete, the court entered judgment for the Plaintiff: Kshs. 2,400,000, Kshs. 38,000, Kshs. 29,800 and Kshs. 150,000, each with interest, plus costs of the suit with interest at 14% per annum from judgment until payment in full.

Key legal issues

#
01

Validity of the land sale agreement

Holding

The Sale Agreement dated 25th November 2014 was valid, satisfying Section 3(3) of the Law of Contract Act

Reasoning

The court applied Section 3(3) of the Law of Contract Act, which requires a contract for disposition of land to be in writing, executed by the parties and attested. Since a written Sale Agreement existed between the parties, the court found a valid contract had been concluded.

p. 3
02

Breach of contract and entitlement to refund

Holding

The Defendants breached the agreement by failing to transfer the suit land despite payment, entitling the Plaintiff to a refund with interest and agreed compensation

Reasoning

The Plaintiff paid Kshs. 2,400,000 as acknowledged in the Sale Agreement, but the Defendants never transferred the land. Ownership disputes (ELC No. 240 of 2017) showed the Defendants lacked capacity to sell. The Plaintiff rescinded the agreement by letter dated 23rd February 2018, which went unanswered. Clause 2.1 obliged the vendor to refund the purchase price plus interest on default.

p. 3
03

Proof of special damages

Holding

The Plaintiff proved special damages by means of receipts produced in evidence

Reasoning

The court found that the receipts produced established the special damages pleaded, including advocate's fees, survey/land plan charges and the cost of fencing, and awarded them as agreed compensation under the contract's default clause.

Legal principles established

#
  • A valid contract for the disposition of land must be in writing, executed by the parties and attested to under Section 3(3) of the Law of Contract Act
  • Where a vendor wrongfully refuses to complete, damages include return of the deposit with interest and expenses incurred in investigating title

Court orders

#
  1. 1.Payment of Kshs. 2,400,000 plus interest thereon calculated at court's rate from the date of filing the suit
  2. 2.Payment of Kshs. 38,000 plus interest at the court rates calculated from the day of filing this suit
  3. 3.Payment of Kshs. 29,800 plus interest thereon at court's rate calculated from the day of filing this suit
  4. 4.Payment of Kshs. 150,000 being the cost of fencing the suit land plus interest thereon
  5. 5.Cost of this suit plus interest at the rate of 14% per annum calculated from the date of judgment until payment in full

Authorities

#

Legislation

  • Law of Contract ActSection 3(3)

Cases cited (5)

  • General Properties Limited v Saika Two Estate Developers Limited
    (2021) eKLR

    A person should not be allowed to keep an advantage obtained by fraud

  • Broadspect Investment Limited v Francis Njoroge Mwangi
    (2017) eKLR
  • Ratilal Ghela Shah v Darius Mwiti Kirimi, Land Registrar, Kwale
    (2021) eKLR
  • Hahn v Singh
    Civil Appeal No. 42 of 1993 (1985) KLR 716
  • Millicent Perpetua Atieno v Louis Onyango Otieno
    (2013) eKLR

    Measure of damages for vendor's wrongful refusal to complete, citing Halsbury's Laws of England Vol 12

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (land dispute); not expressly stated in the judgment

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Ngomanze Investment Limited v Sammy & another", Case Analysis (2023). Environment and Land Case 107 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16821/eng@2023-04-17

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