Elijah Kipkorir Barmalel & another v John Kiplagat Chemweno & 3 others [2010] KECA 59 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a 300-acre land sale: without a valid rescission, a vendor who resells part of the land must still complete the original sale.
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 absence of a separate Land Control Board consent for transfer of the subdivided parcel rendered the sale agreement void and unenforceable by specific performance
- 2.Whether there was a valid rescission of the sale agreement by the vendor
- 3.Whether the order for specific performance was proper given that 100 acres of the contracted land had been sold to third parties
Key legal issues
#Effect of want of a separate Land Control Board consent for transfer
The consents issued for subdivision and for sale were valid and sufficient; no separate consent for transfer was required at the time of the agreement, and the transaction was not void under section 6 of the Land Control Act.
The transaction occurred in February 1980, before the amendments to sections 6(2), 7, 8 and 9(2) of the Land Control Act by Act No. 13 of 1980 which became operational on 24th December 1980. Before those amendments the manner of application for consent was unclear, and consents issued amid that confusion were accepted as a basis of lawful transfers. Further, no transfer could be drawn up because the subdivision did not exist until the deed plan was approved. The court cannot go behind consents issued to inquire why they were issued.
Validity of the vendor's rescission of the sale agreement
There was no valid rescission. The notice calling for the balance of the purchase price in December 1980 was premature and a nullity because payment was due only after completion of survey and issuance of the deed plan; the contractual mechanism in clause 8(2) was never invoked.
Under the agreement, the balance was payable after the survey was completed and consents obtained. The survey was not completed until May 1983, so the 1980 demand was premature and of no consequence. After completion of the survey, no demand was made as provided under special condition 8(2). The vendor's pleadings and evidence never advanced refusal to accept the balance as making time of the essence, and there was no counterclaim for rescission.
Propriety of specific performance where part of the land had been sold to third parties
The order for specific performance was lawful. The vendor, having failed to rescind validly, took the risk of selling 100 acres to third parties and must satisfy the purchasers first.
The late Barmalel was bound by the contract and could only sell to third parties after validly rescinding it, which he never did. The subsequent sale was resisted by injunction and was of no consequence. A court of law is a court of justice and not sympathy; the administrators must satisfy the purchasers' needs first and share the remainder with the third parties.
Legal principles established
#- Where consent has been issued for a sale of a subdivision, a separate consent for transfer need not have been obtained at the time of the agreement where the subdivision did not yet exist, and the court cannot go behind consents duly issued by the Land Control Board.
- In the absence of an express provision or notice making time of the essence, a vendor must serve notice on the defaulting party before asserting that time was of the essence; a purported rescission without invoking the contractual mechanism is a nullity.
- An appellate court is slow to interfere with findings of fact of the trial court unless based on no evidence, a misapprehension of the evidence, or wrong principles.
- A vendor who has not validly rescinded a contract takes the risk of being compelled to perform it, even where he has sold part of the contracted land to third parties.
Court orders
#- 1.The appeal is dismissed
- 2.The appellants to pay the costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kitale
- H.C.C.C. No. 115 of 1997
- Jurisdiction invoked
- First appeal to the Court of Appeal under the applicable appellate statute (the judgment does not cite the specific provision)
Relief refused
#Allowance of the appeal and setting aside of the judgment and decree of the High Court
The court found no merit in the appeal; the consents issued were valid, the notice of rescission was premature and a nullity, and no valid rescission occurred
Costs
The appeal was dismissed with costs to the respondents.
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 sum we find no merit in the appeal before us and we order that it be and is hereby dismissed with costs.
We find in the circumstances that valid consents were issued, not only for the sub-division of the original Title LR. No. 5341 but also for the sale and consequential transfer of 300 acres of that Title to the purchaser.
in the absence of an express agreement on time being of the essence, notice must be served on the defaulting party before any assertion can be made that time was of the essence.
The court will only do so if the finding are based on no evidence, or on a misapprehension of the evidence or the Judge is shown demonstrably to have acted on wrong principles in reaching them
He could only sell to 3rd parties after rescinding and bringing exhibit 1 to an end. He has not done so and so he took the risk of being called upon to meet the terms of the contract.
Issues in the judgment
#The judgment contains an internal inconsistency on the date of completion of the survey: it records both 18th May and 26th May 1983 for issuance of the deed plan.
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.
- Joel Chepkwony v Ennes Shisiali Malenya [2018] KEELC 3536 (KLR)[2018] KEELC 3536 (KLR)21 Mar 2018
Cite this brief
#Cite this brief
Caselaw, "Elijah Kipkorir Barmalel & another v John Kiplagat Chemweno & 3 others [2010] KECA 59 (KLR)", Case Analysis (2010). Civil Appeal 19 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/59/eng@2010-11-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.