Toshike Construction Company Limited v Harambee Co-operative Savings and Credit Society Limited [2021] KEELC 109 (KLR)

The court confined itself to the four corners of the written agreement, which was drafted by the Defendant's own advocate and adopted as a common exhibit. Clause 2 described the property sold as the mansionettes G, H and I with servant's quarters and all developments thereon, and Special Condition 1 obliged the vendor to subdivide into three separate freehold titles. The Defendant could not invoke the earlier advertisements to vary the written terms.

The Defendant had taken steps towards performance (engaging surveyors) and repeatedly sought the Plaintiff's indulgence, showing the contract was executable. The Plaintiff undertook renovations with the Defendant's concurrence, occupied the premises, and offered the balance of the purchase price, which the Defendant declined. Equity deems as done that which ought to have been done.

The Defendant never communicated impossibility to the Plaintiff and raised frustration only in its amended defence of 4 February 2020, without particulars. The terms complained of were contained in a contract drafted by the Defendant's own advocate. Long after execution the Defendant kept assuring the Plaintiff that completion was in progress, demonstrating an election not to complete rather than an extraneous frustrating event.

General damages are not recoverable for breach of contract. Special damages must be specifically pleaded and proved with particularity, which the Plaintiff failed to do, tendering no evidence. The exemplary damages claim was unsupported by evidence and defeated by clause 3 of the sale agreement, which excluded vendor liability for loss arising from delay beyond the completion date.