Nancy Njeri Ndichu v Rose Mbithe & 3 others
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiffs defaulted on the payment schedule
Yes. Only the first instalment was paid on time; the 2nd and 3rd instalments were late and/or short, breaching special condition 1.2.
The contract was clear and the court cannot rewrite it. The Plaintiffs admitted in cross-examination that they did not pay the instalments in full or on time. The court held that even a one-day delay amounts to default, so the Plaintiffs breached the agreement despite having paid a substantial portion of the price.
Whether the 3rd and 4th Defendants acquired lawful and indefeasible title
Yes; they are bona fide purchasers for value without notice under s.23 of the repealed RTA.
The transfer was governed by the repealed RTA since it predated the Land Registration Act. The Plaintiffs pleaded illegality but never pleaded or proved fraud or misrepresentation against the 3rd and 4th Defendants to the heightened standard required. The 4th Defendant conducted due diligence, paid the full purchase price, and the caveat was never entered on the title's encumbrance section.
Validity of the completion notice and rescission
The completion notice was ambiguous and invalid, so rescission was improper and the Plaintiffs were entitled to a refund of all sums paid.
The notice dated 28th March 2007 threatened rescission within 14 days yet simultaneously stated that payments made thereafter would be received without prejudice to the vendors' rights. The vendors cannot have 'their cake and eat it'. Because a proper completion notice was a precondition to forfeiture of the 10% deposit, the vendors were not entitled to forfeit; the Plaintiffs were entitled to a refund of the total Kshs. 7,980,000/= with interest.
Legal principles established
#- A completion notice must be unequivocal; a notice that simultaneously threatens rescission and continues receiving payments is ambiguous and cannot found forfeiture of the deposit or rescission.
- Where rescission is premature for want of a proper completion notice, the defaulting purchaser is entitled to a refund of the entire amounts paid, not forfeiture of the 10% deposit.
- Fraud must be specifically pleaded, distinctly alleged and distinctly proved, and cannot be inferred from the facts.
- Under s.23 of the repealed Registration of Titles Act, a certificate of title is conclusive evidence of indefeasible ownership, challengeable only on fraud or misrepresentation to which the proprietor is a party.
Court orders
#- 1.Judgment entered in favour of the Plaintiff against the 1st and 2nd Defendants jointly and severally for a refund of Kshs. 7,980,000/= with interest at court rates from the date of filing suit until payment in full.
- 2.The Plaintiff and the 4th Defendant to have the costs of the suit as against the 1st and 2nd Defendants.
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the dispute relating to land parcel LR No. 7793/61
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nancy Njeri Ndichu v Rose Mbithe & 3 others", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1180/eng@2024-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.