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ELCDismissedLand Case Appeal E009 of 2023· [2024] KEELC 7378 (KLR)

Kitheka v Njenga (Land Case Appeal E009 of 2023) [2024] KEELC 7378 (KLR)

Environment and Land Court
6 November 2024
2,647 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan land seller who took most of the purchase money but never secured the required consent must refund it with over a decade of interest.

What this practically means

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Executive summary

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This is a first appeal to the High Court (sitting at Machakos) against the judgment of Hon. Daniel Ole Keiwua (CM) in Kangundo Chief Magistrate's Court Civil Suit No. 24 of 2018, delivered on 27th July 2023, in which judgment was entered for the plaintiff for Kshs. 2,725,000/= plus costs and interest from 13th December 2011. The dispute arose from a sale agreement dated 13th December 2011 over five acres to be excised from LR No. Donyo Sabuk/komarock Block 1/356, then registered in the name of Kakua Kioko (deceased). The appellant (vendor) received Kshs. 2,725,000/= of the Kshs. 3,000,000/= purchase price but failed to procure the land control board consent needed for transfer. She argued the transaction awaited succession proceedings, that time was not of the essence, and that the incorporated Law Society Conditions of Sale (1989) governed rescission. The respondent (purchaser) showed succession concluded in 2016, after which the land was registered in the appellant's husband's name, and he rescinded and sought a refund with interest. The court framed four issues: breach, whether time was of essence, merits of the appeal, and costs. Holding that the incorporated conditions of sale could not validate a breach of contract, the court found the appellant in breach, upheld the award of interest from the date of the contract, and dismissed the appeal with costs to the Respondent.

Key legal issues

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01

Whether the Appellant breached the Sale Agreement dated 13th December 2011

Holding

The Appellant was in breach; she received Kshs. 2,725,000/= of the purchase price but failed to procure the land control board consent after the succession proceedings concluded in 2016, and the land was instead registered in her husband's name.

Reasoning

The court found it undisputed that a sale agreement existed over five acres excised from land registered in the name of a deceased person. The appellant did not furnish evidence of pending succession proceedings and failed to rebut evidence that the land was registered in her husband's name after succession concluded. Her reliance on the Law Society Conditions of Sale to delay completion was held to lack good faith and could not excuse breach.

p. 5
02

Whether time was of essence and whether interest from the date of the contract was justified

Holding

Even if time was not expressly of the essence, the appellant could not delay indefinitely; rescission was proper and interest from the date of the contract was warranted since she had held the monies.

Reasoning

The agreement was silent on time being of the essence, but the respondent waited over twelve years, with succession concluding in 2016 and the land thereafter registered to a third party. The court held the Law Society Conditions of Sale (1989) were incorporated but could not validate breach, and that the trial magistrate properly awarded interest from the contract date because the appellant had received and retained the monies paid.

p. 6
03

Whether the appeal is merited and who bears costs

Holding

The appeal is not merited and was dismissed with costs to the Respondent.

Reasoning

Having found that the trial magistrate correctly determined breach, correctly applied the incorporated Law Society Conditions of Sale to the rescission, properly awarded interest from the contract date, and considered the defence, the court found no error in fact or law in the impugned judgment and dismissed the appeal, awarding costs to the successful Respondent.

p. 6

Legal principles established

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  • Incorporated Law Society Conditions of Sale cannot be used to validate or excuse a breach of contract; a vendor who receives most of the purchase price and fails to procure land control board consent after succession proceedings conclude is in breach notwithstanding that time was not expressly of the essence
  • On a first appeal the court evaluates the evidence afresh without having seen the witnesses

Court orders

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  1. 1.Appeal dismissed
  2. 2.Respondent entitled to a refund of Kshs. 2,725,000/= with interest from the date of the Sale Agreement (13th December 2011), as entered by the trial court
  3. 3.Costs of the appeal awarded to the Respondent

Authorities

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Legislation

  • Law Society Conditions of Sale1989 edition (incorporated into the agreement)

Cases cited (15)

  • Selle & Another v Associated Motor Boat Co. Ltd. & Others
    (1968) EA 123
  • Attorney General of Belize Telecom Ltd & Another
    (2009) 1 WLR 1980
  • Trollope Cells Ltd. Vs North West Metropolitan Regional Hospital Board
    (1973) 1 WLR 601
  • Curtis V Chemical Cleaning & Dyeing Co. Ltd
    (1951) ALL ER 631
  • Amos Odhiambo Olang & 2 others v Joseph Otiende Othula & 6 others
    [2017] eKLR
  • Jackline Njeri Kariuki v Moses Njung'e Njau
    [2021] eKLR
  • Njamunyu v Nyaga
    [1983] KLR 282
  • Anne Murambi v John Munyao Nyamu & another
    [2018] eKLR
  • Societe Internationale De Telecommunication Aeronautiques vs. Twiga Properties
  • Kenya Commercial Bank Ltd vs. Thomas Wandera Oyalo
    [2005] eKLR
  • Barnabas Biwott v Thomas Kipkorir Bundotich
    [2018] eKLR Civil Appeal No. 36 of 2013
  • Kenya Posts & Telecommunications Corporation v Paul Gachanga Ndarua
    [2001] eKLR Civil Application Nai. 367 of 2001 (194/2001 UR)
  • Joyce Rasugu & another v Dolphine Kemunto Duke
    [2020] eKLR Claim 13 of 2019
  • Nguruman Limited v Shompole Group Ranch & Another
    [2014] eKLR Civil Application 90 of 2013 (Ur 60/2013)
  • Lakhamshi Brothers Limited v. R. RaJa & Sons
    [1966] EA 313
On appeal from
Chief Magistrate's Court at Kangundo
Civil Suit No. 24 of 2018
Jurisdiction invoked
First appeal from subordinate court (statutory appellate jurisdiction over Chief Magistrate's Court civil suit)

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, "Kitheka v Njenga (Land Case Appeal E009 of 2023) [2024] KEELC 7378 (KLR)", Case Analysis (2024). Land Case Appeal E009 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7378/eng@2024-11-06

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