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ELCDismissedELC Case (Plaint dated 14th September, 2017, amended 1st November, 2021) - Machakos· [2024] KEELC 408 (KLR)

Njoroge v Chal Developers Limited & another (Environment & Land Case 383 of 2017) [2024] KEELC 408 (KLR)

Environment and Land Court
31 January 2024
4,332 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Plaintiff sued the 1st Defendant seeking a declaration that he is the rightful proprietor of LR Nos. 28052/26 and 28052/38 (subdivisions of LR 18046), specific performance of a Sale Agreement dated 16th September, 2006 for a purchase price of Kshs 1,000,000, and a mandatory injunction compelling the Land Registrar, Nairobi to effect transfer upon payment of the Kshs 245,000 balance. The 1st Defendant denied the claim, asserting the Plaintiff breached the contract by failing to pay the agreed price and that the suit was statute barred. The 2nd Defendant, who bought the same parcels from the 1st Defendant under agreements of 2012 and 2014, paid the full price, took possession and developed them, counter-claimed for removal of the Plaintiff's caveats and general damages. The court framed four issues: limitation, entitlement to specific performance, entitlement to the orders sought in the Plaint, and the Defendants' entitlement to Counter-claim relief. Applying Section 4(1) of the Limitation of Actions Act, and rejecting the Plaintiff's reliance on Section 7, the court held the suit, filed in September 2017 against a 2006 agreement, was statute barred; parties are bound by contractual timelines and the Plaintiff was estopped from relying on a 2012 completion notice to defer accrual. On specific performance, the court applied the principle that a plaintiff must show performance of his own obligations; the admitted failure to pay the balance, and the hardship of ordering transfer of plots already sold to and developed by the 2nd Defendant, disentitled him. The Plaintiff's suit was dismissed with costs, and judgment entered on the Counter-claims: the Land Registrar, Nairobi was ordered to remove the caveats on the suit properties and costs of the suit and Counter-claim were awarded to the Defendants.

Key legal issues

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01

Whether the Plaintiff's claim founded on contract was statute barred

Holding

The claim was statute barred under Section 4(1) of the Limitation of Actions Act; the Plaintiff was estopped from invoking Section 7 to extend the period

Reasoning

The cause of action arose from the Sale Agreement dated 16th September, 2006 whose completion date was 31st March, 2006 (said to be a mistake for 2007). Suit was filed on 15th September, 2017, more than ten years later. The Plaintiff argued the cause of action arose in 2012 upon issue of a completion notice, but the court held that the letter was sent several years after the completion date, and that parties are bound by the terms of the agreement they made, so the Plaintiff was estopped from relying on Section 7. The suit was therefore caught by limitation.

p. 6
02

Whether the Plaintiff was entitled to specific performance of the Sale Agreement

Holding

Specific performance refused; the Plaintiff breached the contract by failing to pay the balance of the purchase price and the remedy would cause severe hardship

Reasoning

Under the Sale Agreement the Plaintiff was to pay the full purchase price before the completion date. He admitted in pleadings and evidence that he had not finalized payment. The 1st Defendant had since sold the plots to the 2nd Defendant who paid the full price, took possession and developed them. Applying the principle that specific performance is discretionary and may be refused on grounds of severe hardship, the court found the Plaintiff was the defaulting party and his remedy lay in damages or contractual redress rather than specific performance.

p. 8
03

Whether the Defendants were entitled to the relief sought in their Counter-claims

Holding

The Counter-claims succeeded; the Plaintiff's caveats on LR Nos. 28052/26 and 28052/38 were to be removed and costs awarded to the Defendants

Reasoning

Having found that the Plaintiff had no legal or equitable interest capable of supporting the caveats, having failed to prove his case and being statute barred, the court held the Defendants had proved their Counter-claims. The 2nd Defendant had purchased the plots, taken possession and developed them, and registration of her leases was obstructed by the Plaintiff's caveats. The court directed the Land Registrar, Nairobi to remove the caveats and awarded costs to the Defendants.

p. 8

Legal principles established

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  • A party is bound by the express timelines in a contract and cannot rely on a later completion notice to postpone the accrual of the cause of action for limitation purposes
  • A plaintiff seeking specific performance must show performance of all his obligations under the contract; an admitted failure to pay the purchase price disentitles him to the equitable remedy

Court orders

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  1. 1.The Plaintiff's suit is dismissed with costs
  2. 2.An order directing the Land Registrar, Nairobi to remove the caveats and/or cautions placed on the suit properties namely Land Reference Numbers 28052/26 and 28052/38
  3. 3.Judgment entered for the Defendants on their Counter-claims
  4. 4.Costs of the suit and Counter-claim awarded to the Defendants

Authorities

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Legislation

  • Limitation of Actions ActSection 4(1)
  • Limitation of Actions ActSection 7
  • Land Registration ActSection 71(1)

Cases cited (23)

  • Olive Mwea Wachira & Dan Nduhiu Wahome (as administrators of the estate of John Wahome Wachira (deceased) v Amboseli Court Limited
    (2021) eKLR
  • Schon Noorani v Damji Ramji Patel & 2 Others
    (2006) eKLR
  • Toshike Construction Company Limited v Harambee Cooperative Savings & Credit Society Limited
    (2021) eKLR
  • James Muchangi Gachemi v Solio Group Ranch
    (2023) (unreported on KLR)
  • Abdelhafid Tchoketch & Another v Mercy Nyambura Kanyara
    (2021) eKLR
  • In the matter of Interim Independent Electoral Commission
    (2011) eKLR
  • Attorney General & Another v Andrew Maina Githinji & Another
    (2016) eKLR
  • Dennis Koikai Naiso v Erik Tipis & 3 Others
    (2019) eKLR
  • Victoria Laundry (Windsor) Ltd v Neman Industries Ltd: Coulson & Co. Ltd (Third Parties)
    (1949) 2KB 528
  • Kenya Tourist Development v Sundowner Lodge Limited
    (2018) eKLR
  • Daniel Otieno Migore v South Nyanza Sugar Co. Ltd
    (2018) eKLR
  • Adnarm v Earl of Sandwich
    (1877) 2QB 485
  • Haron Onyancha v National Police Service Commission & Another
    Kisii ELC 168 of 2016
  • Kenya Airways Ltd v Classical Travel & Tours Ltd
    (2003) LLR 2704 (CCK)
  • Gurdev Singh Birdi & Marinder Singh Ghatora v Abubakar Madhubuti
    CA No. 165 of 1996
  • Amina Abdulkadir Hawa v Rabinder Nath Anand & Another
    (2012) eKLR
  • Reliable Electrical Engineers Limited v Mantrac Kenya Limited
    (2006) eKLR
  • Malier Unissa Karim v Edward Oluoch Odumbe
    (2015) eKLR
  • Arthi Highway Developers Limited v West End Butchery Limited & 6 Others
    (2015) eKLR
  • Samuel Kamere v Lands Registrar, Kajiado
    (2015) eKLR
  • Mehta v Shah
    [1965] EA 321
  • Salim Mohamed Salim Tweshe v Khalid Salim Naaman & 5 others
    (2020) eKLR
  • Joseph Kiprono Maswan v Veronica Mukami Nkatha Reithi & another
    [2021] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land contracts, caveats and registration of interests in land (Environment and Land Court Act), invoked by a Plaint and Counter-claims

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, "Njoroge v Chal Developers Limited & another (Environment & Land Case 383 of 2017) [2024] KEELC 408 (KLR)", Case Analysis (2024). ELC Case (Plaint dated 14th September, 2017, amended 1st November, 2021) - Machakos. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/408/eng@2024-01-31

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