Kasinga & 22 others v Kikambala Housing Estate Limited & another; Bank of Africa Kenya Limited (Interested Party) (Environment and Land Case 207 of 2015) [2024] KEELC 5478 (KLR)
The bottom line
#Kenya's Environment and Land Court ordered a housing developer to transfer title to buyers who paid in full, with a refund if it fails.
What this practically means
#Executive summary
#Key legal issues
#Whether the Interested Party (Bank) unlawfully charged the Freehold Title and is liable for the delay
No. The 1st Defendant bears the liability; the Bank was not shown to be at fault.
The court found an Agreement to Create Security dated 28th October 2013 under which the Bank would discharge the charge on condition of a new charge on the leasehold title. The 1st Defendant failed to execute the surrender instruments and lease, and took no steps to ensure the leasehold title was charged. No sufficient evidence supported liability of the Bank, which had discharged the charge once informed of the Change of User.
Whether the Plaintiffs are entitled to specific performance
Yes. Having paid the purchase price, they are entitled to orders of specific performance against the 1st Defendant.
The doctrines of specific performance, constructive trust and unjust enrichment were held applicable mutatis mutandis. The Plaintiffs performed their part by paying the purchase price, and the 1st Defendant admitted on oath that all Plaintiffs had paid and were entitled to subleases. The Partial Settlement Agreement dated 11th June 2018 was recognised and endorsed as enforceable on the parties who supported it.
Whether other pleaded damages were payable
No; they were not quantified or proved.
The court held that the other damages pleaded were neither quantified nor proved and directed parties to the provisions of their respective agreements in case of any damages.
Legal principles established
#- A party who has performed its obligations under a contract for sale of property is entitled to specific performance, an equitable and discretionary remedy granted where it does complete justice
- Constructive trust and proprietary estoppel operate on the conscience of the legal owner to defeat unconscionable reneging on a common intention, even where formalities are imperfect
- A party cannot retain a benefit derived from another against conscience; restitution is required under the doctrine of unjust enrichment
Court orders
#- 1.Subject to the fulfillment of orders issued in ELC 355 of 2016, an order of Specific Performance compelling the 1st Defendant to take steps and facilitate the transfer and registration of the Plaintiffs as owners of their specific Housing Units
- 2.In default of specific performance, the 1st Defendant to refund the total purchase prices to the Plaintiffs and any other costs incurred to develop and improve their respective Housing Units or as per their respective sale agreements
- 3.Costs of the suit and interest at Court rates to be borne by the 1st Defendant for the Plaintiffs, the 2nd Defendant and the Interested Party
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over disputes relating to land (Article 162(2)(b) Constitution / ELC Act); heard together with Malindi ELC No. 355 of 2016 (Bank of Africa Limited v Kikambala Housing Estate Limited and another)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Kasinga & 22 others v Kikambala Housing Estate Limited & another; Bank of Africa Kenya Limited (Interested Party) (Environment and Land Case 207 of 2015) [2024] KEELC 5478 (KLR)", Case Analysis (2024). Malindi ELC No. 207 of 2015 (Lead File). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5478/eng@2024-07-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.