Mbithi v Superior Homes (Kenya) Limited (Civil Appeal E165 of 2023) [2025] KEHC 13783 (KLR) (25 September 2025) (Judgment)

Summary at a glance

Facts

The Appellant and Respondent entered into a contract for the sale of a house at Green Park Estate. The Appellant paid a deposit of Kshs 1,395,000, but the Kenya Commercial Bank rejected the mortgage application due to a demolition order issued by the Water Resources Management Authority (WARMA). The Appellant sued the Respondent for the deposit, claiming the forfeiture was a breach of the contract.

Issues

• Whether the demolition order by WARMA which culminated in the rejection of the mortgage by the bank amounted to force majeure.
• Whether the Respondent was guilty of material non-disclosure.
• Whether the Appellant is entitled to the orders sought.

Reasoning

The court held that the circumstances leading to the forfeiture of the deposit were not beyond the control of the Appellant and that the Appellant did not take steps to terminate the agreement or raise the balance from the financier or any other.

Outcome

Appeal dismissed

Authorities cited