Kenneth Kipruto Chebet v Laban Kipkering Murei [2013] KEELC 148 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Rescission vs frustration of the sale agreement
The contract was rescinded at the plaintiff's instance rather than declared frustrated, since the land had been transferred to a third party
The court found the agreement could no longer be performed because the defendant had sold and transferred the suit land to one Kiptanui Jonah arap Too on 5 October 2011. The court opted for rescission rather than a declaration of frustration, observing the end effect was the same.
Entitlement to damages for breach of contract
Damages refused because the plaintiff himself breached the payment schedule, having not completed payment by 28 February 2011
Although the defendant appeared to waive the payment timelines up to 28 February 2011 through the acknowledgment notes, the plaintiff paid the balance in bits and pieces after that date with no evidence the defendant was bound to accept such late payments. A party guilty of breach cannot claim damages for breach.
Date from which interest on the refund runs
Interest awarded from 6 December 2011, the date of formal demand, not from the dates of receipt
Section 26 of the Civil Procedure Act makes interest discretionary. Since the contract was still running when most of the money was received, the court held it fair to award interest only from the date of demand, when the obligation to refund arose.
Refund of purchase price paid under the agreement
Judgment confirmed for Kshs. 547,600/= as refund, the defendant having received that sum under a transaction he never completed
The plaintiff proved payments totalling Kshs. 547,600/=, acknowledged in writing by the defendant, through cash, M-Pesa and a third party. The interlocutory judgment entered on 5 December 2012 was confirmed at formal proof, the refund being necessary to avoid unjust enrichment.
Legal principles established
#- Interest under Section 26 of the Civil Procedure Act is discretionary and may fairly be awarded from the date of demand for refund rather than the date of receipt
- A party in breach of contract cannot claim damages for breach of the same contract
- A refund of the purchase price is warranted to prevent unjust enrichment where the seller resells land without completing the sale
Court orders
#- 1.Declared the contract between the plaintiff and defendant rescinded by the plaintiff
- 2.Entered judgment for the plaintiff for Kshs. 547,600/= being refund of the purchase price, with interest at court rates from 6 December 2011
- 3.Declined to award damages for breach of contract
- 4.Awarded the plaintiff the costs of the suit
- Jurisdiction invoked
- Original civil suit under the Civil Procedure Act, Cap 21 (first-instance land/contract suit before the Environment and Land Court at Eldoret)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenneth Kipruto Chebet v Laban Kipkering Murei [2013] KEELC 148 (KLR)", Case Analysis (2013). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/148/eng@2013-11-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.