Muya (Suing through James Billy O Anunda, Meshack O Magati, John Muya) v Embakasi Developers LImited & another (Enviromental and Land Originating Summons 1002 of 2015) [2024] KEELC 6378 (KLR)
The bottom line
#A Nairobi court refused to record a disputed land sale settlement, confirming that contracts for land in Kenya cannot be changed without both parties' written agreement.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the suit has been compromised by a lawful agreement between the Plaintiff and the 1st Defendant such that judgment in terms of the compromise should be recorded and the suit marked as settled
Key legal issues
#Whether the 1st Defendant proved a lawful compromise of the suit under Order 25 Rule 5(1)
The application failed; the alleged compromise was not proved as the purchase price variation was disputed and unsupported by evidence consented to by the Plaintiff
The 1st Defendant claimed a compromise allowing members to purchase plots at market price, relying on an alleged meeting of 13.8.2021 varying the price to Kshs.4 billion. That meeting's record was not annexed, and the referred document JM7 was not before the court. The Plaintiff maintained the subsisting agreement dated 11.7.2019 as varied on 9.10.2019 provided for Kshs.800 million for all 516 plots. Without consent, the court could not record a compromise.
Whether the court can impose terms of settlement that vary a subsisting written contract for sale of land
No; the court cannot rewrite a contract, and a contract for sale of land can only be varied with agreement of both parties and in writing
Relying on Housing Company of East Africa Limited, the court held that where a contract is clear, its role is to interpret it as written. The 1st Defendant's proposal that it sell plots directly to members on willing buyer-willing seller terms varied the price term of the subsisting agreement without consent. Additionally, contracts for sale of land must comply with the Law of Contracts Act section 3(3). Entering judgment as prayed would amount to rewriting the agreement.
Whether the agreement dated 11.7.2019 was terminated for failure to perform within time (time being of the essence)
Not determined in the Plaintiff's disfavour; the 1st Defendant's own letter of 9.10.2019 extended time, which the court found effectively extended the completion period
The 1st Defendant argued rescission by letters dated 26.11.2020 and 17.9.2021 citing time being of the essence. However, the court found that on 9.10.2019 the 1st Defendant ceded to the Plaintiff's request to subdivide and extended time, agreeing subdivision at Plaintiff's own cost. It relied on Mwangi v Kiiru that without a definite provision for payment, notice making time of the essence was required. This undercut the contention that the contract had terminated by effluxion of time.
Legal principles established
#- Where a suit has been adjusted wholly or in part by a lawful agreement or compromise, the court shall, on application, record the agreement and enter judgment accordingly.
- A court cannot rewrite a contract between parties; a contract for the sale of land can only be varied with the agreement of both parties.
Court orders
#- 1.The 1st Defendant's Notice of Motion dated 16.10.2023 is dismissed
- 2.Each party shall bear their own costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 25 Rule 5(1) of the Civil Procedure Rules
Relief refused
#Declaration that the 1st Defendant has compromised the suit, recording terms of sale of 516 plots at market price
No consent to the alleged compromise; entering judgment would amount to rewriting the parties' agreement
Order that the suit be marked as settled
The burden of proving compromise was not discharged; the alleged price variation is disputed and undocumented
Costs
Each party shall bear their own costs of the application
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the final analysis, I find that the application dated 16.10.2023 is not merited and the same is hereby dismissed. However, in the spirit of giving the parties a chance to explore even a partial settlement, I direct that each party shall bear their own costs of the application.
The 1st Defendant desires to sell plots to the Plaintifi's members directly on willing buyer willing seller basis. This is the proposal that the 1st Defendant wants this court to ratify. A situation that is certainly untenable in view of the fact that there is no consent to that efiect.
It is a well-known principle of law that a court cannot rewrite a contract between the parties.
Indeed, when a contract is clear and unambiguous, a court's role is to interpret the contract as written and not rewrite it because, just as with any other contract, a contract for the sale of land can only be changed with the agreement of both parties and not unilaterally
Issues in the judgment
#Text rendering errors throughout the judgment: the word 'Plaintiff' is consistently rendered 'Plaintifi' and 'ofier'/'ofiers' appear for 'offer'/'offers', which affects verbatim quotation fidelity
The Plaintiff's submissions date is internally inconsistent, rendered as '27.5.224'
The year of the letters varying the agreement is inconsistent, appearing as '9.10.2019' and '9.10.2010' in different passages
Name of the Plaintiff's planner appears variously as 'Joash Ndorombori' and 'Joash Korombori'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muya (Suing through James Billy O Anunda, Meshack O Magati, John Muya) v Embakasi Developers LImited & another (Enviromental and Land Originating Summons 1002 of 2015) [2024] KEELC 6378 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6378/eng@2024-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.