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Educational sample. Replace bracketed fields using your evidence.
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
CASE OR APPLICATION NO [appropriate reference]
[APPLICANT OR CLAIMANT] v [RESPONDENT OR DEFENDANT]
WRITTEN SUBMISSIONS
1. The issues are whether the project agreement permitted cost adjustment, whether the asserted default and termination complied with it, and what remedy remains after the allocated unit was resold.
2. The agreement must be read as a whole. The contribution of KES 8,700,000 is established, but the price-adjustment clause cannot be omitted when addressing a later demand. Conversely, the existence of a clause does not dispense with proof of the actual calculation and notice.
3. The excavation, materials and project-account evidence is relevant to the claimed additional cost. The Court should distinguish expenditure proved by records from a technical opinion requiring an appropriate witness.
4. The notice dated 17 April 2015 gave a seven-day period and identified the asserted consequence. The parties should address its wording, communication and the subsequent acts, rather than infer compliance from the later resale alone.
5. Specific performance is discretionary and must take account of the contractual position and third-party rights. The source Court refused it where termination was accepted and the unit had been resold. That outcome does not mean that a developer may retain the original payment without accounting.
6. The alternative refund is a distinct pleaded remedy. The source Court ordered KES 8,700,000 to be refunded and awarded interest from seven days after the notice rather than the earlier payment date requested. An adapted case must state and justify its own interest basis.
7. A proposed alternative apartment or refund is not the same as payment. The evidence of offers may affect costs, subject to privilege and admissibility, but a party should not describe an offer as extinguishing an unpaid principal sum.
8. The Court is invited to decide the primary and alternative remedies separately, identify any lawful deductions and record the interest start date expressly. Claimed rental loss and penalty interest require their own pleaded and proved basis. Costs remain discretionary; the source awarded only half the costs.
DATED at [place] on [date]. [Signature of party or advocate]. DRAWN AND FILED BY [name and address for service]. TO BE SERVED UPON [each affected party and address].
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An advocate confirms availability, scope and fees before accepting your matter.Educational reconstruction based on a reported decision. Newly drafted sample, not an original filing or a matter handled by our team. Identifying details are replaced with bracketed fields. Check your facts, current rules, court directions and jurisdiction before use.
Use and evidence notes
Do not present the source’s termination ruling as a universal approval of developer price increases. Identify the precise adjustment clause and its application. Keep requests affecting the later purchaser within properly constituted proceedings.
Source facts and limits of the decision
An investor paid KES 8,700,000 under a project development agreement. The developer required a further contribution, invoking a clause dealing with estimated project costs. The investor disputed the top-up and penalties. A notice dated 17 April 2015 preceded termination and resale of the unit. Project accounts, additional excavation and materials costs were discussed in evidence.
The Court accepted the contractual basis for cost adjustment and termination and refused specific performance of the unit already resold. It ordered refund of KES 8,700,000 with interest from seven days after the termination notice and awarded half the costs. The reasons refer to different top-up figures; a specimen must identify the actual demand rather than harmonise them by invention.
Read the project’s price-adjustment and termination provisions as a whole. Distinguish lawful adjustment from proved deductions and distinguish a refund remedy from an order affecting a later purchaser. A requested interest date or contractual penalty is not necessarily the date or rate ultimately awarded.
Read the original reported decision: [2024] KEELC 3450 (KLR) — 24 April 2024
The original judgment may identify participants. These samples remove their names; allegations and unsuccessful arguments are identified as such. The primary judgment was checked against a previously preserved full text. Current live retrieval of Kenya Law is unavailable in this session.
Related legislation and procedure
Law of Contract Act · Civil Procedure Act · Civil Procedure Rules
Read these alongside the source decision and your agreement. Check the law applicable to the material dates and the correct jurisdiction and procedure before adapting this sample.
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