Bayusuf & another v Siraf Wings Limited (Environment and Land Case Civil Suit E006 of 2023) [2024] KEELC 6185 (KLR)
The bottom line
#A Mombasa court cancelled a Sh70 million land sale after the buyer failed to pay the balance, letting the sellers keep the deposit and reclaim the plot.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defendant breached the sale agreement by failing to pay the outstanding balance of the purchase price
Yes - the Defendant failed to pay the outstanding Kshs. 7,500,000/- despite demands and a 21 days' completion notice, amounting to breach of the Agreement for Sale dated 8th November, 2016.
The transaction was to be completed 90 days from 8th November 2016. The Defendant took possession, obtained an advocate's professional undertaking for Kshs. 12,500,000/-, paid only a further Kshs. 5,000,000/- and left Kshs. 7,500,000/- outstanding despite demands and the completion notice. The Defence was mere denial with no witnesses called, leaving the claim uncontroverted. The Court found breach proved on a balance of probabilities.
Whether the Plaintiffs were entitled to the reliefs sought, including rescission and forfeiture of the deposit
Yes - having proved breach, the Plaintiffs were granted declarations of breach and rescission, a restraining injunction, vacation/removal of structures, forfeiture of deposit, with the alternative payment of the outstanding balance, and costs.
The Court held that parties' agreement contained a default clause and the Court could not interfere with the contract. The prayers concerned use, occupation and title to land, within the Court's jurisdiction. The Plaintiffs proved their claim on a balance of probability and the Defendant had no legal right to remain on the suit land. Reliefs (a)-(e) were granted per Sections 24, 25 and 26 of the Land Registration Act.
Who bears the costs of the suit
Costs follow the event; the successful Plaintiffs were awarded costs with interest at court rates.
Section 27(1) of the Civil Procedure Act provides that costs follow the event. Citing Harun Mutwiri v Nairobi City County Government, KUCFAWU v Bidco Africa and Hussein Muhumed Sirat v Attorney General, the Court reaffirmed that the successful party is typically entitled to costs absent compelling reasons. The Plaintiffs having established their case, costs were awarded to them.
Legal principles established
#- Where a plaintiff's case is uncontroverted, the plaintiff still retains the burden to prove the case on a balance of probabilities
- Courts cannot re-write contracts for parties nor imply terms not in the contract
- Costs follow the event under Section 27(1) of the Civil Procedure Act
- Dispositions of land must comply with Section 3(3) of the Law of Contract Act and Section 38 of the Land Act
Court orders
#- 1.Judgment entered in favour of the Plaintiff as pleaded in the Plaint dated 1st February, 2023
- 2.Declaration that the Defendant's actions constitute a breach of the Agreement for Sale dated 8th November, 2016
- 3.Declaration that the agreement for sale dated 8th November, 2016 for Plot No. 5061/I/MN stands rescinded on account of the Defendant's breach and failure to complete
- 4.Restraining injunction against the Defendant from entering, developing, constructing on, accessing, wasting, selling or otherwise dealing with the suit property
- 5.Order for vacation and removal of any structure erected on the suit property
- 6.Order that the Plaintiffs forfeit and retain any deposit paid by the Defendant towards the purchase
- 7.In default of compliance with prayers (b) to (f), the Defendant to pay Kenya Shillings 7,500,000/- being the outstanding balance of the purchase price
- 8.Costs of the suit and interest at court rates awarded to the Plaintiffs
- Jurisdiction invoked
- Environment and Land Court jurisdiction over use, occupation and title to land; Plaintiffs admitted the Court's jurisdiction; orders relate to Sections 24, 25 and 26 of the Land Registration Act, No. 3 of 2012
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.
- Theuri & another v Mweni & 4 others (Environment and Land Case 223 of 2020) [2026] KEELC 582 (KLR)[2026] KEELC 582 (KLR)6 Feb 2026
Cite this brief
#Cite this brief
Caselaw, "Bayusuf & another v Siraf Wings Limited (Environment and Land Case Civil Suit E006 of 2023) [2024] KEELC 6185 (KLR)", Case Analysis (2024). ELC Case of 2023 (Plaint dated 1st February, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6185/eng@2024-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.