Remedies for Breach of Agreement for Sale

 Introduction

An agreement for Sale is a legally binding document that outlines the agreed upon terms of the buyer and seller of a property or in a real estate transaction. It defines the purchase price and other details of the transaction, and is executed by both parties.

It is trite law that enforceability of an Agreement for Sale is premised on the compliance with Section 3 (3) of Law of Contract (the “LCA”). As the Learned Judges in Kukal Properties Development Ltd v Tafazzal H. Maloo & 3 others[1] rightly held, for an agreement to be valid it must be in writing, executed by both parties and attested to by or on behalf of the parties.

The enforceability requirement of execution and attestation has been challenged by the enactment of the Business Laws (Amendment) Act, 2020, which sole purpose was to ease the conduct of business transactions in Kenya.

Section 3 (3) of the LCA was revised by introducing electronic signatures as a means of executing documents where previously it provided for a physical signature.

Additionally, it eliminated the requirement of affixing of a company seal under section 35 of the Companies Act, 2015 in the execution of documents by companies and provided that two authorized signatories or a director of the company (in the presence of a witness) may sign a document on behalf of a company.

The amendments are positive as they embrace technological advancements by minimizing the need of physical movement. However, the amendments failed to address the accepted mode of attestation, whether the advocate would be required to be in the same jurisdiction as the person electrically executing or it is acceptable for the advocate to be outside the jurisdiction.

We appreciate the aim of the amendments but we may not ignore the fact that these provision may cause perplexity in the interpretation of section 3 (3) of the LCA in respect to attestation and the enforceability of an agreement executed in such circumstances. The clarity of this amendment going forward, is a necessity to avoid frivolous and plentiful conflicts.

Consequently, it is advisable for parties to agree on the jurisdiction issue in relation to attestation at the initial stages of entering into an agreement for sale. The agreement may expressly provide for the agreed terms in the attestation clause to prevent disputes during the transition period of implementing the new changes.

Agreements for sale may vary in relation to the subject matter, for example, a purchaser may be interested in buying a piece of land and or property in Kenya and upon settling on the agreed terms, the vendor proceeds to instruct their advocates to prepare an agreement governing the sale.

At other times, the purchaser may opt to purchase property that is intended to be built in future through a pre-sale. We shall briefly discuss pre-sale purchases.

1. What are Pre-Sales?

The Black’s Law Dictionary defines pre-sale as the sale of real property (such as condominium units) before construction begins, whereby the price is to be paid at a future schedule or instalment and the deposit paid is refundable when the Developer fails to complete construction of the units within the agreed time frames as set out in the Agreement.

At the heart of pre-sales, a Developer is able to sell property before Completion of the Project and according to the terms as set out in the valid pre-sale agreement[2]. Although pre-sold properties are predominantly considered to be risky investments in Kenya, the curve is increasingly gaining confidence from prospective home buyers.

Owing to our imperfect world, we cannot overlook the various challenges that may be faced by parties, unforeseen circumstances and or fraudulent activities which may lead to the possibility of a breach of contractual obligations as provided for in the pre-sale agreements and general agreements for sale.

2. When does a Breach of an Agreement for Sale Occur?

Parties are bound by the terms of the Agreement for Sale and must ensure that they observe and perform their respective obligations. When one party fails to fulfil their responsibilities, or act in contrary manner to what was agreed upon in the Agreement, their actions may constitute a breach of an agreement

When a breach occurs, the party which has defaulted may be liable for such default. Additionally, it is important to note that there are circumstances that may cause disruptions to the performance of contracts, making it impossible for parties to perform their obligations.

These may include:

• Repudiation/Non-performance

Repudiation or an anticipatory breach of an agreement occurs when one party informs the other party in clear and unconditional terms that they are not in a position or do not intend to fulfil all of their obligations as agreed under the agreement.

Repudiation may also occur when one party makes it impossible for the other party to honour their obligations under the agreement. By way of illustration, when a property is transferred to a 3^rd party by a vendor, rendering the initial purchaser unable to fulfil its obligations.

Principally, repudiation is a complex area of law and largely depends on facts of each matter. Parties who are affected by the repudiation of an agreement have a right to seek redress by way of damages.

• Unforeseen circumstances and disruptions

At times, an agreement may be frustrated by events beyond the parties’ control.

Recently, the World Health Organization (WHO) officially declared the COVID-19 as a global pandemic which has led to disruptions in our fragile economy affecting conduct of business in general and has greatly threatened contract performance.

In such unprecedented times, parties to a contractual agreement are required to continue with the terms unless a party proves that, it is temporarily or permanently impossible to perform its obligations.

Generally, agreements for sale anticipate such circumstances and provide for a Force Majeure clause as a form of relief. In the absence of the force majeure clause, a party may invoke the common law doctrine of frustration.

We shall briefly discuss the two exceptions to liability due to breach of the agreement for sale by any party to an agreement.

3. Exceptions to Liability for Breach of an Agreement for Sale:

• Force Majeure

A force majeure or as sometimes referred to as “irresistible impulse”[3], is an event that temporarily suspends the rights and obligations of parties to the agreement due to the occurrence of extraordinary events or circumstances beyond their control which prevents one or all of them from fulfilling their obligations.

The general principle that the party invoking force majeure must observe was perfectly illustrated by Justice E.K. O. Ogolla in Pankaj Transport PVT Limited v SDV Transami Kenya Limited (2017) eKLR where he stated that “a party pleading force majeure must prove that the failure to perform an obligation was a result of impediment beyond his control and that he could not reasonably be expected to have taken the impediment and its effects upon his ability to perform the contract into account at the time of the conclusion of the contract; and that he could not reasonably have avoided or overcome it or at least its effects.” The doctrine is applicable if it has been properly defined in the Agreement and includes a list of force majeure events, which if they were to occur, would postpone performance of obligations until such a time when the force majeure event has passed.

It is important to note that the force majeure clause is not implied in agreements and the types of events to be considered as a force majeure, will be limited by the specification in the wording hence ascertaining that its interpretation is strict.  For example, the words “epidemic” and “pandemic” may be relied on in relation to the coronavirus outbreak.

In the case of Channel Island Ferries Limited v Sealink UK Limited (1988)[4] the court held that the party invoking the force majeure clause is required to demonstrate that the clause was expressly provided for under the agreement for sale and that they have made attempts to mitigate the impact of such force majeure event.

Additionally, invoking the force majeure clause should be the only alternate means.

The defaulting party should give sufficient notice to the other party demonstrating that performance is legally or physically impossible in order to prevent additional losses from occurring.

The consequences for the parties where a valid force majeure event has occurred will depend on the nature of the affected party’s obligations under the agreement, as well as the consequences and remedies expressly contemplated by the force majeure provision.

The remedies for force majeure typically include an extension of time to perform those obligations or suspension of contractual performance for the duration of the force majeure event. If the force majeure event extends over a longer period, some provisions may entitle the parties to terminate the agreement for sale.

• Doctrine of Frustration

Occasionally, unexpected events may occur severely impacting the performance of either party’s obligations as required under the Agreement for Sale and such circumstances may include; critical delays caused by the prevailing pandemic COVID-19 measures, death or incapacity of one the parties (does not apply to corporate bodies), acts of God, changes in law e.g. laws influencing conduct of financial institutions and money lending organizations that may lead to the unusual withdrawing of financing and destruction of the subject matter.

Where the Agreement for Sale is silent on a force majeure event or the specific event, has not been expressly provided for in the contract, the parties may rely on the doctrine of frustration.[5]

The Court of Appeal in Lucy Njeri Njoroge v Kaiyahe Njoroge [2015] eKLR quoted with authority the case of Davis Contractors Ltd vs Farehum U.D.C. (1956) AC 696 where it was held that “The doctrine of frustration is in all cases subject to the important limitation that the frustrating circumstances must arise without fault of either party, that is, the event which a party relies upon as frustrating his contract must not be self-induced.”

Therefore, the affected party seeking to invoke the doctrine of frustration must show that:

• There is a valid and subsisting agreement for sale between the parties;
• Some part or whole of the agreement for sale must be fulfilled;
• It is due to no fault of either party; and
• The agreement for sale becomes impossible to perform after its made due to some supervening events and renders further performance illegal or radically different from that contemplated by the parties at the time of the agreement.

The case of Five Forty Aviation Limited v Erwan Lowe [2019] eKLR[6] echoed the Court of Appeal case of Kenya Airways Limited v Satwant Singh Flora [2013] eKLR[7] where the court set out the prerequisites for the application of the doctrine of frustration of a contract as follows:

“….the doctrine of frustration operates to excuse further performance where it appears from the nature of the contract and the surrounding circumstances that the parties have contracted on the basis that some fundamental thing or state of things will continue to exist, or that some particular person will continue to be available, or that some future event which forms the foundation of the contract will take place, and before breach performance becomes impossible or only possible in a very different way to that contemplated without default of either party and owing to a fundamental change of circumstances beyond the control and original contemplation of the parties. The mere fact that a contract has been rendered more onerous does not of itself give rise to frustration.”

The threshold to show that performance has been frustrated is high and the affected party must prove that the agreement is impossible to enforce. Delays and increased costs are examples of situation whereby the agreement for sale may not be frustrated. In Samuel Chege Gitau & another v Joseph Gicheru Muthiora Justice J.L. Onguto stated that “the essence of frustration is that it should not be due to the act or election of the party seeking to rely on it.”

When the affected party seeks to rely of this common law doctrine the results should be equitable to all parties to avoid loss which would then be recoverable in the form of a claim for restitutionary damages, on the premise that it would be unjust for a party to be excused from performance and retain the benefit of the agreement for sale.

The doctrine of frustration results in the termination of the agreement[8] unlike the force majeure whereby the agreement is relieved until such a time whereby the frustrated party is able to perform its obligations when the frustration passes. However, a party may not opt for automatic termination because the frustration may be temporary.

4. Remedies for Breach of an Agreement for Sale

A great number of agreements for sale expressly provide for remedies available and termination in instances where a breach may arise.

When a party breaches the agreement for sale voluntarily and has failed to successfully rely and or apply the doctrines discussed above, the aggrieved party is entitled to seek remedies and may wish to have the agreement for sale enforced on its terms, or may try to recover for any financial harm caused by the alleged breach in a Court of Law with competent jurisdiction.

Remedies are a matter of right as the latin maxim Ubi jus, ibi remedium suggests, where there is a right, there is a remedy There are various remedies available to the affected party and are broadly classified into common law remedies and equitable remedies.

• Common Law Remedies
  • Damages

Damages are the pecuniary recompense given by process of law to a person in order to make good the consequences of an actionable wrong that another has done to them.

Damages are by no means a form of punishment. As Lord Atkinson accurately denoted, “I have always understood that damages for breach of contract were in the nature of compensation, not punishment.”[9]

They are the most common form of remedy available and are usually awarded to the aggrieved party to mitigate their loss, that is, to put them in the same position as if his/its rights had been observed.[10]

Damages are further classified into:

• General Damages

As a general rule, general damages are not recoverable in cases of alleged breach of contract.[11] This principle was well illustrated in the court of appeal case of Kenya Power and Lighting Company Limited v Abel M. Momeyi Birundu (2015) eKLR[12] where it was stated that authorities are legion to the effect that general damages must not be awarded for breach of an agreement.

The principle governing the measure of awarding of general damages was well captured in the case of Hadley v Baxendale (154)[13]where the court held that the award of general damages is usually on a case to case basis and dependent on the loss suffered by the other party for the breach.

As a matter of fact, as decided in China Overseas Engineering Company Limited v Isaaq Kichwen Kijo [2019] eKLR[14] it is trite law that general damages may not be awarded for breach of an agreement and notably special damages are more appropriate.

• Special Damages

Special Damages as its name suggests, are awarded only in special circumstances and the party alleging breach must be plead and prove with extra particularity to the Courts the consequential loss suffered. In the case of Hahn V. Singh, Civil Appeal No. 42 Of 1983 [1985] KLR 716, at P. 717, and 721 the Learned Judges of Appeal Kneller, Nyarangi JJA, and Chesoni Ag. J.A. further reiterated that award by special damages must be proved by holding that:

“Special damages must not only be specifically claimed (pleaded) but also strictly proved…. for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The decree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.”[15]

A party claiming special damages must demonstrate that they actually made the payments or suffered the specific injury before compensation will be permitted.[16]

For example, if a purchaser had paid monies towards purchase of a property to the vendor, then the vendor fraudulently involves a third party and fails to return the sums paid to the purchaser, the party whose rights have been violated, may seek special damages and prove fraud by providing actual receipts of the sums made to substantial loss and economic injury.

• Equitable Remedies

At times the common law remedies are not available to a claimant and thus equity comes in to intervene on behalf of the affected party. Equitable remedies have been developed by our courts under their discretion. Unlike the legal common law remedies which exist as of right, the equitable jurisdiction is mainly founded on fairness and justice.

The equitable remedies include:

• Specific Performance

Specific performance is a decree by a court of law compelling a party to perform their obligations.  It is an equitable remedy enforced at the discretion of the court and the court may only grant the same on well settled principles.

In the case of Reliable Electrical Engineers Limited V Mantrac Kenya Limited 2006 eKLR, Justice Maraga said:

“even when damages are inadequate remedy, specific performance may still be refused on the ground of undue influence or where it will cause severe hardship to the defendant”

Specific performance is often ordered in relation to pre-sale agreements because the agreement deals with results rather than the carrying on of an activity over a period of time and it usually defines the work to be completed with certainty. For example, the court may order for handover of the property or transfer of title of the property.

The agreement for sale must be valid and enforceable for the prayer of specific performance to be considered.[17]

Furthermore, it is important to note that the award of specific performance is only applicable when monetary damages are inadequate to compensate for breach and also when the subject matter of an agreement is in dispute.[18]

The court has wide discretionary power to award specific performance and in exercising this discretion, the following factors are taken into account:

• The order of specific performance is available only if the subject matter of the agreement is unique; for example, land is always seen as a unique property:[19]
• The case of Alton Homes Limited & Another V Davis Nathan Chelengoi & 2 others[20] quoted with authority the case of Kisumuwalla Oil Industries Limited V Pan Asiatic Commodities Pte Limited & another [1997] eKLR[21] where the court held that specific performance is granted where complete justice will be done by such an award rather than an award of damages;
• The party seeking performance should show that he has performed or is ready to perform their obligations under the agreement; e.g. a bankrupt claimant cannot complete a sale and thus cannot rely on specific performance as a remedy for loss incurred;[22] Additionally, the court in Nabro Properties Ltd v Sky Structures Ltd & 2 others [2002] eKLR[23] held that he/it must show proof that he/it has complied with his/it’s part of the agreement;
• According to the Halsbury’s Law of England Volume 44 (1),4^th Edition (Re-issue) at paragraph 840, the party seeking to enforce specific performance the court must be satisfied that the terms are sufficiently certain and precise that the court can order and supervise the exact performance of the agreement. This means that the judges should be sure that they are in a position to supervise performance and ensure that the order shall be carried out as “equity will do nothing in vain”.[24]
• The remedy is only available if the claimant does not delay in seeking the order as ’delay defeats equity’. However, the mere fact of a delay is insufficient to deny the grant of specific performance unless the delay is inordinate;[25]
• The court of appeal in Amina Abdul Kadir Hawa v Rabinder Nath Anand & another [2012] eKLR[26] asserted that the order of specific performance sought may not be allowed if the remedy will cause undue hardship on the defendant;[27]
• The claimant should ensure that their actions are equitable as “he who comes to equity must come with clean hands”. This position was well demonstrated in the court of appeal case of Thrift Homes Ltd V Kays Investments Limited[28] quoted with authority the case of Gurdev Singh Birdi & Narinder Singh Ghatora as Trustees of Ramgharia Institute of Mombasa V Abubakar Madhbuti [1997] eKLR^[29] where it was expressed that the party seeking specific performance must show and prove to the court that they were ready and willing to perform all the terms of the agreement which ought to have been performed by them; and
• Court will not grant an order of specific performance unless there is a possibility of mutuality; e.g. when one party lacks capacity there can be no mutuality;^[30]
  • Rescission

The remedy for rescission is invoked whereby the background and purpose of drafting the agreement is radically strained at the option of the affected party. When an agreement is rescinded it is essentially extinguished with the effect of restoring the parties to their pre-contractual positions.[31]

Rescission is sought by the innocent party where there has been fraud, mistake, duress and misrepresentation by the defendant in respect to an agreement for sale and is subject to the court’s discretion.  The awarding of this remedy is based on the fact that the party would not bind themselves if they were aware of a defect at the time when the agreement was being made.

Additionally, where an agreement for sale of land does not make time the essence of the agreement, equity requires that time be made of such essence before the agreement can be rescinded.

Moreover, it is a necessary that when a party discovers any vitiating factors such as fraud after the agreement was made, they may notify the defaulting party and give them sufficient notice to rectify the default.[32] In the case of Gurdev Singh Birdi & another v Abubakar Madhbuti [1997] eKLR[33] the court quoted with authority the case of Graham v. Pitkin [1992] 2 All E. R. 235 which held that:

“Unreasonable delay by a purchaser in completing a contract for the sale of land does not entitle the vendor to rescind the contract without first serving a notice to complete, although delay may be an ingredient in deciding whether a party in default does not intend to proceed and has repudiated the contract”.          

Usually when the aggrieved party rescinds an agreement, all the payments made towards the purchase of an interest in land is returned forthwith by the defaulting party. For example, if a party has entered into an agreement for sale of land or an apartment, then later on the purchaser discover that particular parcel of land was acquired in a fraudulent manner, the purchaser may rescind the contract and any moneys paid is returned by the Vendor to the purchaser. This position was echoed in the case of Ayub Ndungu Vs Marion Waithera Gacheru (2006) eKLR^[34] where the court held that “The law requires that in the case of rescission of a contract for the sale of land the vendor returns the deposit to the purchaser…..”.

The Court in its sole discretion may consider granting the order of recession if the following conditions are observed;

• Damages are not appropriate to remedy the default;
• It must actually be shown that the parties may be returned to the actual positions they were in before the agreement was created, that is it will only be granted where ‘restitutio in integrum’ is possible. For example, the subject matter (land/apartment) should not have been radically changed in any way;
• The party seeking the remedy of rescission should genuinely prefer to be released from their contractual obligations. It will not be granted where the party seeking it has approved the agreement in his conduct or any other way that affirmation may be proved;[35]
• There should be no inordinate delay in seeking the remedy of rescission; and
• The remedy of rescission is not available when a third party has been involved in the sale and obtained rights over the property in question. It would be unfair to impose the remedy on a blameless party especially where the third party has obtained it in good faith.

Finally, when courts exercise their discretion and allow the innocent party to rescind an     agreement for sale, the agreement becomes void ab initio.

• Rectification

Rectification means the correction of written documents to reflect the party’s contractual obligations but without changing the transaction itself. For the correction to be enforced, the parties enter into a deed of rectification.

This remedy is only available when:

• There should be a common mistake that is if both parties believed that the agreement for sale reflected their intentions;
• In the case of Nebart Njeru Munyi v Nicholas Muriithi Zakaria [2015] Eklr it was decided that a mistake in the agreement should be unilateral that is, the mistake is known to the other party[36];

This remedy is not available for agreements for sale if the defects are too fundamental and or extensive.[37]

Moreover, if the agreement for sale affects a third party, their consent will be required.

If one or more parties refuses to agree to the rectification, the aggrieved party may apply to court to obtain an order for rectification and the court the party seeking to rectify must convince the court that it is inequitable to allow the agreement to stand. Ordinarily, the burden of proof relies on the party seeking to rectify.

• Restitution

Restitution restores the claimant to the position it was in before the defendant had been unjustly enriched at its expense. It involves the repayment of moneys/benefits that the claimant had passed to the defendant in advance in respect to the agreement that has been breached.[38]

For example, restitution is often used when the agreement for sale is determined to be unenforceable, but the innocent party already conferred a benefit to the other party.

For a claim in restitution to succeed, the court of appeal in Chase International Investment Corporation and Another v Laxman Keshra and 3 others [1978] eKLR[39] held that the claimant must show that:

• The defendant has been enriched. This could be in terms of money, but can also be other benefits, whether direct or indirect, and includes saving from expense and discharging obligations;
• The enrichment was at the claimant’s expense; and
• The enrichment was unjust. There could be several reasons as to why enrichment may be unjust such as where there has been undue influence, duress, mistake and or illegality; and
• vindication of equitable title to property.[40]

A claim advanced on the basis of unjust enrichment, focuses on the benefit received by the defendant; and a restitution claim advanced on the basis of quantum meruit, focuses on the benefit which the claimant deserves to receive.

Conclusion

When parties enter into agreements for sale of land or property, they should be cognizant of various factors and circumstances that may lead to frustration of the agreement for sale and should consider the “what if’s” should the transaction fail.

Delayed performance is exceptionally common, whereby one party does not fulfil their obligations in accordance with the time frames as set out in the agreement for sale. The real estate sector especially in pre-sales, has a reputation of delaying their projects, which has led to economic losses to various purchasers and mistrust in potential buyers.

At times, parties may perform their obligations but not to the standard required by the agreement for sale and some may do nothing (non-performance) to observe their duties.

Therefore, when taking all these factors into consideration, it is vital that the agreement for sale expressly provides for liquidated damages in the event that either party breaches the agreement.

Bearing in mind that the common law damages may not be sufficient, the law of equity intervenes and the aggrieved party is able to obtain relief. As discussed above, equitable damages are discretionary and are not as a matter of right. Parties to an agreement for sale should ensure that they seek professional legal counsel to enforcing the agreement.

[1] ‘Civil Appeal 155 of 1992 – 1993 eKLR Kenya Law’ <http://kenyalaw.org/caselaw/cases/view/46190> accessed 27 May 2020.

[2] Su Chan, Ko Wang and Jing Yang, ‘Presale Contract and Its Embedded Default and Abandonment Options’ (2012) 44 Journal of Real Estate Finance and Economics 116, 228–229.

[3] Black’s Law Dictionary, 744 (4^th Edition 1968)

[4] 1 Lloyd’s report 323

[5] Taylor V Caldwell (1863) 3 B&S 826

[6] ‘Civil Appeal 55 of 2016 – Kenya Law’ <http://kenyalaw.org/caselaw/cases/view/173831/> accessed 8 June 2020.

[7] ‘Civil Appeal 54 of 2005 – Kenya Law’ <http://kenyalaw.org/caselaw/cases/view/84094> accessed 8 June 2020.

[8] Maritime National Fish Ltd. v. Ocean Trawlers Ltd [1935] UKPC 20

[9] Addis v. Gramophone Co Ltd 1909

[10] Victoria Laundry (Windsor) Ltd Vs. Neman Industries Ltd; Coulson & Co. Ltd (Third Parties) [1949] 2kb 528

[11] Kenya Tourism Development Corporation Vs Sundowner Lodge Ltd 2018 eKLR

[12] ‘Civil Appeal 30 of 2013 – Kenya Law’ <http://kenyalaw.org/caselaw/cases/view/106959> accessed 8 June 2020.

[13] 9 exch. 214, at page 334

[14] ‘Civil Appeal 123 of 2017 – Kenya Law’ <http://kenyalaw.org/caselaw/cases/view/179936> accessed 4 June 2020.

[15] Also see: National Social Security Fund Board of Trustees vs Sifa International Limited (2016) eKLR, Macharia & Waiguru vs Muranga Municipal Council & Another (2014) eKLR

[16] ‘ Christine Mwigina Akonya v Samuel Kairu Chege [2017] eKLR Civil Case 12 of 2016 – Kenya Law’ <http://kenyalaw.org/caselaw/cases/view/145796/> accessed 4 June 2020.

[17] Caltex Oil (Kenya) Limited v Rono Limited [2016] eKLR ‘Civil Appeal 97 of 2008 – Kenya Law’ <http://kenyalaw.org/caselaw/cases/view/123271> accessed 4 June 2020 where the court correctly highlighted the case of  Harib Suleman Gharib v Abdulrahman Mohamed Agil LLR No. 750 (CAK) Civil Appeal No. 112 of 1998

[18] Thomas Openda V Peter Martin Ahn (1984) eKLR ‘Civil Appeal 42 of 1981 – Kenya Law’ <http://kenyalaw.org/caselaw/cases/view/8526/> accessed 20 May 2020.

[19] Adderly V Dixon (1824) 57 ER 239

[20] ‘Civil Suit 193 of 2010 – Kenya Law’ <http://kenyalaw.org/caselaw/cases/view/148506> accessed 5 June 2020.

[21] ‘Civil Appeal 100 of 1995 – Kenya Law’ <http://kenyalaw.org/caselaw/cases/view/29206> accessed 8 June 2020.

[22] Dyster V Randall & Sons 926 CH 932

[23] ‘Civil Appeal 175 of 1999 – Kenya Law’ <http://kenyalaw.org/caselaw/cases/view/10237> accessed 8 June 2020.

[24] Posner V Scott Lewis (1987) 3 WLR 53

[25] ‘Civil Appeal 175 of 1999 – Kenya Law’ (n 23). Also see: Lazard Brothers & Co Ltd v Fairfield Properties co (Mayfair) Ltd [1977] 121 SJ793

[26] ‘Civil Suit 2982 of 1995 – Kenya Law’ <http://kenyalaw.org/caselaw/cases/view/82422/> accessed 8 June 2020.

[27] Hope V Walter (1900) 1 Ch 257

[28] ‘Civil Suit 1512 of 1998 – Kenya Law’ <http://kenyalaw.org/caselaw/cases/view/108116> accessed 20 May 2020.

[29] ‘Civil Appeal 165 of 1996 – Kenya Law’ <http://kenyalaw.org/caselaw/cases/view/45033> accessed 20 May 2020.

[30]  Flight V Bolland 1828 4 Russ 298 Tito v Waddell (No 2) [1977] Ch 106)

[31]Patrizia Bini v Melina Investment Limited & 3 others [2016] eKLR ‘Civil Appeal 54 of 2015 – Kenya Law’ <http://kenyalaw.org/caselaw/cases/view/122402> accessed 20 May 2020.

[32] Ann Mumbi Hinga v William Mwangi Gathuma & another [2017] eKLR ‘Environment & Land Suit 34 of 2011 – Kenya Law’ <http://kenyalaw.org/caselaw/cases/view/172598> accessed 4 June 2020.

[33] ‘Civil Appeal 165 of 1996 – Kenya Law’ (n 29).Also see: Njamunyu Vs Nyaga (1983) KLR 282

[34] ‘Civil Case 1496 of 2002 – Kenya Law’ <http://kenyalaw.org/caselaw/cases/view/17141> accessed 4 June 2020.

[35] Long V Lloyd (19580) 1 WLR 753

[36] ‘Civil Appeal 82 of 2012 – Kenya Law’ <http://kenyalaw.org/caselaw/cases/view/115927> accessed 9 June 2020.

[37] Fairstate Limited V General Enterprise Management Limited and Another 2010 EWHC 3072 QB

[38] Andrew Kull, ‘Restitution as a Remedy for Breach of Contract Symposium on Restitution’ (1993) 67 Southern California Law Review 1465, 1491 <https://heinonline.org/HOL/P?h=hein.journals/scal67&i=1480> accessed 4 June 2020.

[39] ‘Civil Appeal 8 of 1978 – Kenya Law’ <http://kenyalaw.org/caselaw/cases/view/38058> accessed 9 June 2020.

[40] Samuel Kamau Macharia Vs Kenya Commercial Bank Limited, Kenya Commercial Finance Company Limited[2003] eKLR ‘Civ Case 1263 of 92 – Kenya Law’ <http://kenyalaw.org/caselaw/cases/view/2976> accessed 9 June 2020.