Jahadhmy & another v Fort Jesus Sea View Apartments Ltd
The bottom line
#A Mombasa court ordered a developer to refund Kshs 3 million in apartment deposits with 12% interest after failing to build, but refused extra damages.
What this practically means
#Executive summary
#Key legal issues
#Validity of the sale agreements
The sale agreements were valid and enforceable, complying with Section 3(3) of the Law of Contract Act
The court perused the sale agreements produced as exhibits and found them in writing, signed by the parties and attested by witnesses, containing the parties' names, property description, purchase price and conditions, thereby satisfying the formal requirements for contracts for disposition of an interest in land.
Breach of contract
The Respondent committed a clear breach by taking deposits and failing to construct or deliver the apartments
The Applicants' evidence was uncontroverted as the Respondent entered appearance but filed no defence. Deposit slips and acknowledgement receipts proved payment of Kshs 3,000,000. The apartments were never constructed nor delivered and the Respondent offered no explanation, amounting to a clear breach of the contracts.
Appropriate remedy
Refund of the deposit with interest rather than specific performance
Specific performance is discretionary and the court declined to order it because the apartments do not exist and the Respondent might be unable to deliver them given its failure to construct anything since 2018. The suitable remedy was held to be a refund of the deposits already paid.
Damages for breach of contract
Damages refused as not specifically pleaded or proved
Relying on Court of Appeal authority, the court held that general damages cannot be awarded for breach of contract; contractual damages are in the nature of special damages which must be specifically pleaded and proved. The Applicants' claim for damages was neither pleaded nor proved and could not be awarded.
Legal principles established
#- An agreement for sale of land containing parties' names, property description, purchase price and conditions, signed and witnessed, is a valid contract under Section 3(3) of the Law of Contract Act
- General damages cannot be awarded on a claim anchored on breach of contract; contractual damages are in the nature of special damages and must be pleaded and proved
- Specific performance is discretionary and will not be ordered where there is an adequate alternative remedy
Court orders
#- 1.A refund of the deposit paid of Kshs 3,000,000 being the total for the deposits paid for Apartments A4 & B4 and A5 & B5 plus interest at 12% per annum from the date of payment
- 2.Costs of the suit to the Applicants
- Jurisdiction invoked
- Environment and Land Court jurisdiction over contracts for disposition of interest in land (Environment and Land Court Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jahadhmy & another v Fort Jesus Sea View Apartments Ltd", Case Analysis (2023). Environment and Land Miscellaneous Application 1 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18362/eng@2023-06-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.