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ELCPartially AllowedNot stated in judgment· [2024] KEELC 6899 (KLR)

Martha Wambui v Defendant

Environment and Land Court
17 October 2024
1,428 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiff sued the Defendant for specific performance of a sale agreement dated 13th October 2017 over plot No. 6, to be excised from Laikipia, Daiga Umande Block 2/5261 (Akorino), purchased for Kshs. 300,000/- with a completion date of 12th April 2018. The suit proceeded as an undefended suit under Order 10 rule 9 of the Civil Procedure Rules, the Defendant having been served but failing to enter appearance or file a defence. The Plaintiff testified as the sole witness and produced the agreement, letter of offer, payment receipts and completion notice. The court framed two issues: whether the claim was merited and what orders the Plaintiff was entitled to. It held that the Defendant, who was to excise the plot and obtain freehold title before completion, was in breach, having failed to complete seven years after execution despite full payment and a completion notice. On the prayer for specific performance, the court declined the remedy because the plot was not specifically and uniquely identifiable: no subdivision plan was presented and there was no evidence it had not been excised. Enforcement would require excision subject to land control board consent and other approvals, risking an absurd outcome and undermining the overriding objective. Applying Barclays Bank of Kenya Ltd v MEMA and the Hadley v Baxendale rule, the court awarded damages of Kshs. 300,000/- with interest at court rates from the date of filing suit until payment in full, and costs assessed on the Magistrates' courts scale. The claim therefore succeeded in damages but specific performance was refused.

Key legal issues

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01

Whether the Defendant breached the sale agreement

Holding

The Defendant was in breach for failing to complete the sale despite full payment by the Plaintiff and a completion notice

Reasoning

The agreement fixed the consideration at Kshs. 300,000/- and a completion date of 180 days from execution. The Plaintiff paid the full amount, the last instalment on 1st March 2018, and issued a completion notice. Seven years later the vendor had not completed by excising the plot and obtaining title, so breach was established.

p. 2
02

Whether specific performance should be granted

Holding

Specific performance refused because the plot was not uniquely identifiable and enforcement would be cumbersome and costly

Reasoning

The plot was to be excised from a larger parcel; no subdivision plan was presented and there was no evidence it had not been excised. Enforcement would require excision subject to land control board consent and other approvals, potentially producing an absurd outcome, contrary to the overriding objective of just, expeditious, proportionate and affordable resolution.

p. 3
03

The appropriate measure of damages

Holding

Damages of Kshs. 300,000/-, being the consideration paid, with interest from filing of suit

Reasoning

Applying the restitution in integrum principle and the Hadley v Baxendale rule as adopted in Kenyan authorities, damages restore the claimant to the position had the breach not occurred. The parties had contractually provided for refund of monies paid on breach, and the Plaintiff proved payment of the full Kshs. 300,000/-, making that sum an adequate, easily ascertainable measure.

p. 3

Legal principles established

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  • Specific performance is discretionary and its practicality of enforcement is a relevant consideration
  • Where the subject parcel is not uniquely identifiable, specific performance may be denied and damages awarded instead

Court orders

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  1. 1.Damages for breach of contract of Kshs. 300,000/- against the Defendant
  2. 2.Interest on Kshs. 300,000/- at court rates from the date of filing suit until payment in full
  3. 3.Costs of the suit to the Plaintiff, to be assessed on the scale applicable to matters filed in the Magistrates' courts

Authorities

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Legislation

  • Civil Procedure RulesOrder 10 rule 9

Cases cited (4)

  • Barclays Bank of Kenya Ltd versus MEMA
    (2021) KEHC 333 (KLR)
  • K.I.E Ltd –vs- Lee Enterprises Ltd
    (2009) eKLR
  • Kenya Breweries Ltd versus Natex Distributors Ltd
    (2004) eKLR
  • Hadley –vs- Baxendale
    (1854) 9 Exh. 341
Jurisdiction invoked
Original jurisdiction over the suit relating to land; proceedings conducted as an undefended suit under Order 10 rule 9 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Martha Wambui v Defendant", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6899/eng@2024-10-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.