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ELCAllowedELC Case of 2023 (Plaint dated 1st February, 2023)· [2024] KEELC 6185 (KLR)

Bayusuf & another v Siraf Wings Limited (Environment and Land Case Civil Suit E006 of 2023) [2024] KEELC 6185 (KLR)

Environment and Land Court
23 September 2024
6,924 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~28 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Plaintiffs, registered owners of Plot No. 5061/I/MN Mombasa, sued Siraj Wings Limited for breach of an Agreement for Sale dated 8th November 2016 in which the Defendant agreed to purchase the property for Kshs. 70,000,000/-, paying a deposit of Kshs. 35,000,000/- with the balance due 90 days later. The Defendant took possession and began construction but failed to complete. After an advocate's professional undertaking for Kshs. 12,500,000/-, only Kshs. 5,000,000/- was further paid, leaving Kshs. 7,500,000/- outstanding despite demands and a 21 days' completion notice dated 16th December 2022. The Plaintiffs sought declarations of breach and rescission, a restraining injunction, vacation and removal of structures, forfeiture of the deposit, or alternatively payment of the outstanding balance, with interest and costs. The Defendant filed a defence but called no witnesses; the Plaintiffs' case went uncontroverted. Framing three issues - breach, entitlement to reliefs, and costs - the Court, per Hon. Mr. Justice L.L. Naikuni, found the transaction complied with Section 3(3) of the Law of Contract Act and Section 38 of the Land Act, that the Defendant breached the agreement, and that the Plaintiffs proved their claim on a balance of probabilities. All prayers were granted: declarations of breach and rescission, injunction, removal of structures, forfeiture of deposit, alternative payment of Kshs. 7,500,000/-, and costs with interest at court rates. Judgment was delivered at Mombasa on 23rd September 2024.

Key legal issues

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01

Whether the Defendant breached the sale agreement by failing to pay the outstanding balance of the purchase price

Holding

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.

Reasoning

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.

p. 11
02

Whether the Plaintiffs were entitled to the reliefs sought, including rescission and forfeiture of the deposit

Holding

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.

Reasoning

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.

p. 11
03

Who bears the costs of the suit

Holding

Costs follow the event; the successful Plaintiffs were awarded costs with interest at court rates.

Reasoning

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.

p. 12

Legal principles established

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  • 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

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  1. 1.Judgment entered in favour of the Plaintiff as pleaded in the Plaint dated 1st February, 2023
  2. 2.Declaration that the Defendant's actions constitute a breach of the Agreement for Sale dated 8th November, 2016
  3. 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. 4.Restraining injunction against the Defendant from entering, developing, constructing on, accessing, wasting, selling or otherwise dealing with the suit property
  5. 5.Order for vacation and removal of any structure erected on the suit property
  6. 6.Order that the Plaintiffs forfeit and retain any deposit paid by the Defendant towards the purchase
  7. 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. 8.Costs of the suit and interest at court rates awarded to the Plaintiffs

Authorities

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Legislation

  • Law of Contract Act, Cap 23Section 3(3)
  • Land Act, No. 6 of 2012Section 38
  • Land Registration Act, Number 3 of 2012Sections 24, 25 and 26
  • Civil Procedure Act, Cap 21Section 27(1)
  • Civil Procedure Rules, 2010Order 11; Order 13
  • Central Bank of Kenya Act (Cap 491)Section 39
  • Companies Act Cap 486 (repealed)not specified
  • Auctioneers Act (Cap 526)not specified
  • Law Society Conditions of Sale (1989 Edition)Paragraphs 2 and 8

Cases cited (14)

  • Kihumbu v Kariuki
    Environment & Land Case E002 of 2021 [2022] KEELC 4896 (KLR)
  • New Types Enterprises Limited v Kenya Achand Insurance Company Limited
    [1988] KLR 380
  • Highway Furniture Mart Limited v Permanent Secretary Office of The President & another
    [2006] eKLR
  • Later v Mbiyu
    [1965] EA 592
  • Rufale v Umon Manufacturing Co. (Ramsboltom)
    (1918) L.R 1KB 592
  • Attorney General of Belize et al v Belize Telecom Limited & Another
    (2009) 1 WLR 1980
  • Trollope Colls Ltd v Northwest Metropolitan Regional Hospital Board
    (1973) 1 WLR 601
  • Hadley v Baxendale
    (154) 9 Exch 214
  • Millicent Perpetua Atieno v Louis Onyango Otieno
    (2013) eKLR
  • Harun Mutwiri v Nairobi City County Government
    [2018] eKLR
  • Kenya Union of Commercial, Food and Allied Workers v Bidco Africa Limited & Another
    [2015] eKLR
  • Hussein Muhumed Sirat v Attorney General & Another
    [2017] eKLR
  • Party of Independent Candidate of Kenya & another v Mutula Kilonzo & 2 others
    Machakos ELC Pet No. 6 of 2013 [2013] eKLR
  • Levben Products v Alexander Films (SA) (PTY) Ltd
    1957 (4) SA 225 (SR)
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.