Jatropower (K) Ltd, (hereinafter referred to as the plaintiff) has come to this court by Originating Summons against David K Tanui, (hereinafter referred to as the defendant) seeking for determination of the issue as to whether the Agreement for sale dated 14th July, 2021 should be Rescinded and whether the property Title Number LEMBUS/Kiptuim/312 registered in favour of the defendant should be cancelled, changed and reinstated to the Plaintiff.
The second issue for determination is whether the Plaintiff should be compelled to pay the deposit of the purchase price. Lastly, whether the Defendant should be condemned to meet the costs of this suit.
Upon determination of the questions aforesaid, the plaintiff prays that the court makes orders that the agreement for sale dated 14th July, 2021 be rescinded for breach of terms of the agreement. Moreover, that the Transfer and registration of the property Title Number Embus/Kiptuim/312 in favor of the defendant herein be cancelled, changed and reinstated to the Plaintiff. Cost of this application be provided for.
The Originating summons is based on grounds that the Plaintiff and the Defendant entered into an agreement for Sale on 14th July,2021 where the plaintiff sold a parcel of land known as Embus/Kiptuim/312 at a total cost of Kenya Shillings Five Million (KES.5,000,000.00).
The Plaintiff and the Defendant further agreed that the Defendant to pay Kenya Shillings Five Hundred Thousand (KES 500,000) as the deposit and balance of the purchase price of Kenya Shillings Four Million Five Hundred Thousand (KES. 4,500,000.00) be paid upon completion.
Pursuant to clause 7.1 of the Agreement for Sale, completion date was to be 90 days after execution of the Agreement or within 14days of successful registration of the Title. The property was successfully registered on 15th June, 2022 in favour of the Defendant. Contrary to the Agreement, the Defendant failed or/and refused to pay the balance of the purchase price despite being issued with a completion notice despite being given several months to pay the balance of the purchase price.
The parcel of land has since been successfully registered in the names of the Defendant but the Defendant has refused to pay the balance of the Purchase Price to the Applicant. The Defendant is in possession of the subject property. That it is only in the interest of justice that the subject property title be cancelled and reinstated to the previous owner, the applicant herein and other orders sought be granted. The supporting affidavit reiterates the grounds of the Originating Summons.
The defendant filed a replying affidavit stating that the application is laced with malice and inaccuracies. That the conveyance herein was commenced through the agreement between the defendant and the plaintiff dated 14th July 2021 the terms of which are very express.
The plaintiff sent a demand letter to which the defendant expressly responded to the letter through his lawyer that the same was premature and in bad faith. One of the terms of the agreement was that completion date expressly provided for either 90 days or 14 days whichever was earlier.
The counsel for plaintiff prepared conveyance for the defendant and obtained the title documents on his behalf and knew well that the delay in the finalizing at the conveyance herein was caused on the part of the plaintiff by not carrying out and executing his mandate on time as agreed.
The defendant states that it is not true as alleged by the plaintiff that the efforts to persuade him have been futile and that the communications that have been there between the parties are on record. The summons is maliciously intended to delay conclusion of the conveyance here.
According to the defendant, the summons has been brought in bad faith and the plaintiff has not demonstrated any cause of action against the defendant. He believes that the summons herein are without any substance or material for trial and determination before this court and he prays that the same be dismissed with costs
The defendant laments that on several dates and times the plaintiff did text messages to the defendant expressing change of mind over the sale opting to sell to a third party who offered a fair price than the defendants’, and that his delay in executing the transaction was a ploy and a delaying tactic to transfer the sale and that the plaintiff has totally continued to market the same land as witnessed by himself, family and neighbors.
On 21st November 2024, the court made directions that the matter to proceed by way of case stated and that the parties to file submissions. The plaintiff filed submissions on as directed whereas the defendant did not.
The plaintiff argues that the defendant breached the terms of agreement for sale specifically clause no 7.1 on completion which provided that the date of completion was to be 90 days from the date of execution of the agreement, or within 14 days of successful registration whichever was to be later or on a date agreed by the parties in writing. According to the plaintiff, the completion date could extend beyond the 90 days period from the date of execution in which case it would be within 14 days from the date of registration of transfer of title to the defendant. In this case there was no agreement as envisaged in clause 7.1 on the completion date and therefore the applicable condition was within 14 days after successful registration of title in the names of the defendant.
This court agrees with the plaintiff that the completion of the sale agreement extended beyond the stipulated 90 days but this was beyond the control of both parties. It is found that the property was successfully registered in the names of the defendant on the 15th of June 2022 and that the defendant failed to pay the balance within 14 days of registration. The completion date was tied on 90 days or 14 days after registration whichever was later and not earlier. The defendant attempts to ask the court to rewrite the agreement by replacing the word later with the word earlier but it is trite law that the court cannot rewrite an agreement for parties. This court is alive to the hallowed legal maxim that it is not the business of courts to rewrite contracts between parties. They are bound by the terms of their contracts, unless coercion, fraud or undue influence are pleaded and proved. See National Bank of Kenya Ltd vs Pipe plastic Samkolit (K) Ltd [2002]2 EA 503. The primary task of the court is to construe the contract and any terms implied in it. See Megarry, J. in the case of Coco vs A. N. Clark (Engineers) Ltd. - [1969] RPC 41.
It is a longstanding principle of law that parties to a contract are bound by the terms and conditions thereof and that it is not the business of the Courts to rewrite such contracts. In National Bank of Kenya Ltd vs. Pipe Plastic Samkolit (K) Ltd (2002) 2 E.A. 503, (2011) eKLR the Court of Appeal at page 507 stated as follows: -
“A court of law cannot rewrite a contract between the parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded and proved.”
In Pius Kimaiyo Langat vs. Co-operative Bank of Kenya Ltd (2017) eKLR the Court of Appeal further stated that: -
“We are alive to the hallowed legal maxim that it is not the business of Courts to rewrite contracts between parties, They are bound by the terms of their contracts, unless coercion, fraud or undue influence are pleaded and proved.”
In South Nyanza Sugar Co Ltd v Johnson Ohuru Omwame [2020] eKLR, Justice Mrima Held that:-
“As Courts are only called upon to interrogate the terms of contracts in cases of alleged breach of such contracts a Court will not be able to discharge such a duty in the absence of the terms of the contract.”
This court finds that the terms of clause 7.1 of the agreement for sale was very clear and that the plaintiff complied with the terms of the agreement by causing the title to be registered in the names of the defendant but the defendant breached the agreement by failing to pay the balance within 14 days of the successful registration of the transfer of title.
This court further finds that the plaintiff has the right to rescind the agreement for sale of the land as the defendant failed to pay the balance on the appointed date. Clause 16 of the agreement for sale provided that any remedy or right conferred upon the vendor or the purchaser for breach of the agreement including the right of rescission should be in addition to and without prejudice to all other rights and remedies available to them.
This court further agrees with the plaintiff that the property no Lembus/Kiptum/312 whose transfer is registered in favour of the defendant should be cancelled and reinstated in the name of the plaintiff because the defendant breached the terms of agreement.
In William Kazungu Karisa vs Cosmas Angore nzera (2006) eKLR, the court held the basic rule of law of contract is that parties must perform their respective obligations in accordance with terms and conditions of the contract executed by them and an agreement could only be amended or varied by the consent of the parties.
Further in Kanyango vs KCB Ltd & another (2004) 1 KLR 126, the court held it was not the duty of courts to make contracts but to construe any such contracts and arbitrate on them. Moreover, that if the purchaser failed to pay the balance of the purchase price on the agreed date, the vendor was discharged from further performance of the contract by the purchasers failure to pay the balance of the purchase price.
The agreement herein does not provide for forfeiture of the deposit and the plaintiff did not plead on the same. The defendant has not prayed for the refund and therefore the court shall not delve in what was not pleaded and not prayed for.
This court finds that the plaintiff has proved his case on a balance of probability and orders that the agreement for sale dated 14th July, 2021 be and is hereby rescinded for breach of terms. Moreover, that the Transfer and registration of the property Title Number Embus/Kiptuim/312 in favor of the defendant herein be and is hereby cancelled and reinstated to the Plaintiff’s name. Cost of this application to the plaintiff.
The second issue for determination is whether the Plaintiff should be compelled to pay the deposit of the purchase price. Lastly, whether the Defendant should be condemned to meet the costs of this suit.
Upon determination of the questions aforesaid, the plaintiff prays that the court makes orders that the agreement for sale dated 14th July, 2021 be rescinded for breach of terms of the agreement. Moreover, that the Transfer and registration of the property Title Number Embus/Kiptuim/312 in favor of the defendant herein be cancelled, changed and reinstated to the Plaintiff. Cost of this application be provided for.
The Originating summons is based on grounds that the Plaintiff and the Defendant entered into an agreement for Sale on 14th July,2021 where the plaintiff sold a parcel of land known as Embus/Kiptuim/312 at a total cost of Kenya Shillings Five Million (KES.5,000,000.00).
The Plaintiff and the Defendant further agreed that the Defendant to pay Kenya Shillings Five Hundred Thousand (KES 500,000) as the deposit and balance of the purchase price of Kenya Shillings Four Million Five Hundred Thousand (KES. 4,500,000.00) be paid upon completion.
Pursuant to clause 7.1 of the Agreement for Sale, completion date was to be 90 days after execution of the Agreement or within 14days of successful registration of the Title. The property was successfully registered on 15th June, 2022 in favour of the Defendant. Contrary to the Agreement, the Defendant failed or/and refused to pay the balance of the purchase price despite being issued with a completion notice despite being given several months to pay the balance of the purchase price.
The parcel of land has since been successfully registered in the names of the Defendant but the Defendant has refused to pay the balance of the Purchase Price to the Applicant. The Defendant is in possession of the subject property. That it is only in the interest of justice that the subject property title be cancelled and reinstated to the previous owner, the applicant herein and other orders sought be granted. The supporting affidavit reiterates the grounds of the Originating Summons.
The defendant filed a replying affidavit stating that the application is laced with malice and inaccuracies. That the conveyance herein was commenced through the agreement between the defendant and the plaintiff dated 14th July 2021 the terms of which are very express.
The plaintiff sent a demand letter to which the defendant expressly responded to the letter through his lawyer that the same was premature and in bad faith. One of the terms of the agreement was that completion date expressly provided for either 90 days or 14 days whichever was earlier.
The counsel for plaintiff prepared conveyance for the defendant and obtained the title documents on his behalf and knew well that the delay in the finalizing at the conveyance herein was caused on the part of the plaintiff by not carrying out and executing his mandate on time as agreed.
The defendant states that it is not true as alleged by the plaintiff that the efforts to persuade him have been futile and that the communications that have been there between the parties are on record. The summons is maliciously intended to delay conclusion of the conveyance here.
According to the defendant, the summons has been brought in bad faith and the plaintiff has not demonstrated any cause of action against the defendant. He believes that the summons herein are without any substance or material for trial and determination before this court and he prays that the same be dismissed with costs
The defendant laments that on several dates and times the plaintiff did text messages to the defendant expressing change of mind over the sale opting to sell to a third party who offered a fair price than the defendants’, and that his delay in executing the transaction was a ploy and a delaying tactic to transfer the sale and that the plaintiff has totally continued to market the same land as witnessed by himself, family and neighbors.
On 21st November 2024, the court made directions that the matter to proceed by way of case stated and that the parties to file submissions. The plaintiff filed submissions on as directed whereas the defendant did not.
The plaintiff argues that the defendant breached the terms of agreement for sale specifically clause no 7.1 on completion which provided that the date of completion was to be 90 days from the date of execution of the agreement, or within 14 days of successful registration whichever was to be later or on a date agreed by the parties in writing. According to the plaintiff, the completion date could extend beyond the 90 days period from the date of execution in which case it would be within 14 days from the date of registration of transfer of title to the defendant. In this case there was no agreement as envisaged in clause 7.1 on the completion date and therefore the applicable condition was within 14 days after successful registration of title in the names of the defendant.
This court agrees with the plaintiff that the completion of the sale agreement extended beyond the stipulated 90 days but this was beyond the control of both parties. It is found that the property was successfully registered in the names of the defendant on the 15th of June 2022 and that the defendant failed to pay the balance within 14 days of registration. The completion date was tied on 90 days or 14 days after registration whichever was later and not earlier. The defendant attempts to ask the court to rewrite the agreement by replacing the word later with the word earlier but it is trite law that the court cannot rewrite an agreement for parties. This court is alive to the hallowed legal maxim that it is not the business of courts to rewrite contracts between parties. They are bound by the terms of their contracts, unless coercion, fraud or undue influence are pleaded and proved. See National Bank of Kenya Ltd vs Pipe plastic Samkolit (K) Ltd [2002]2 EA 503. The primary task of the court is to construe the contract and any terms implied in it. See Megarry, J. in the case of Coco vs A. N. Clark (Engineers) Ltd. - [1969] RPC 41.
It is a longstanding principle of law that parties to a contract are bound by the terms and conditions thereof and that it is not the business of the Courts to rewrite such contracts. In National Bank of Kenya Ltd vs. Pipe Plastic Samkolit (K) Ltd (2002) 2 E.A. 503, (2011) eKLR the Court of Appeal at page 507 stated as follows: -
“A court of law cannot rewrite a contract between the parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded and proved.”
In Pius Kimaiyo Langat vs. Co-operative Bank of Kenya Ltd (2017) eKLR the Court of Appeal further stated that: -
“We are alive to the hallowed legal maxim that it is not the business of Courts to rewrite contracts between parties, They are bound by the terms of their contracts, unless coercion, fraud or undue influence are pleaded and proved.”
In South Nyanza Sugar Co Ltd v Johnson Ohuru Omwame [2020] eKLR, Justice Mrima Held that:-
“As Courts are only called upon to interrogate the terms of contracts in cases of alleged breach of such contracts a Court will not be able to discharge such a duty in the absence of the terms of the contract.”
This court finds that the terms of clause 7.1 of the agreement for sale was very clear and that the plaintiff complied with the terms of the agreement by causing the title to be registered in the names of the defendant but the defendant breached the agreement by failing to pay the balance within 14 days of the successful registration of the transfer of title.
This court further finds that the plaintiff has the right to rescind the agreement for sale of the land as the defendant failed to pay the balance on the appointed date. Clause 16 of the agreement for sale provided that any remedy or right conferred upon the vendor or the purchaser for breach of the agreement including the right of rescission should be in addition to and without prejudice to all other rights and remedies available to them.
This court further agrees with the plaintiff that the property no Lembus/Kiptum/312 whose transfer is registered in favour of the defendant should be cancelled and reinstated in the name of the plaintiff because the defendant breached the terms of agreement.
In William Kazungu Karisa vs Cosmas Angore nzera (2006) eKLR, the court held the basic rule of law of contract is that parties must perform their respective obligations in accordance with terms and conditions of the contract executed by them and an agreement could only be amended or varied by the consent of the parties.
Further in Kanyango vs KCB Ltd & another (2004) 1 KLR 126, the court held it was not the duty of courts to make contracts but to construe any such contracts and arbitrate on them. Moreover, that if the purchaser failed to pay the balance of the purchase price on the agreed date, the vendor was discharged from further performance of the contract by the purchasers failure to pay the balance of the purchase price.
The agreement herein does not provide for forfeiture of the deposit and the plaintiff did not plead on the same. The defendant has not prayed for the refund and therefore the court shall not delve in what was not pleaded and not prayed for.
This court finds that the plaintiff has proved his case on a balance of probability and orders that the agreement for sale dated 14th July, 2021 be and is hereby rescinded for breach of terms. Moreover, that the Transfer and registration of the property Title Number Embus/Kiptuim/312 in favor of the defendant herein be and is hereby cancelled and reinstated to the Plaintiff’s name. Cost of this application to the plaintiff.