You are the proprietor of Akili Co. Advocates. You have received urgent instructions from your client Mr. White, who states that he had entered into an agreement of sale with Ms Anne for the purchase of property described on the title document as Busara Block 50/350 Measuring 0.45 Ha (Hereinafter referred to as “the suit property”) for Ms Anne was the registered owner of the suit property.
The terms of payment as per the Agreement were that 10% of the purchase price was payable on the execution of the agreement and the balance was to be paid upon the successful transfer of the suit property to your client Mr. White.
In the documents availed to you, you have established that Mr. White has fully paid the purchase price to Ms Anne. Ms Anne has duly executed an acknowledgement note confirming receipt of the full purchase price. However, Ms Anne has been reluctant to sign the transfer documents in order to transfer the title of the suit property to Mr. White.
In the bundle of documents provided, you have also seen a letter from Sharp Co. Advocates addressed to Mr. White apparently intending to cancel the sale. This is the extract of the letter:
Sharp & Co. Advocates
Your Reference: ÅBX
Our Reference: XYZ
CANCELLÅTiON OF SALE OF LAND REFERENCE BUSÅRÅ BLOCK 50/ 350:
ANNE TO WHITE
We refer to the above matter.
We would like to bring to your attention that Ms Anne has decided to cancel the sale with effect from the date of service of this letter to yourselves.
The reason of the cancellation is that our client has secured a better deal, in fact, Mr. Pesa is ready and willing to pay three times the purchase price you had agreed. He has already executed the Agreement for sale with Ms Anne.
Do not worry, we shall refund you Kshs. together with a 10% p.a interest.
We should be grateful if you would kindly expedite because time is of essence.
Sharp & Co. Advocates
Mr. White does not want to lose the suit property because of its prime location. He contends that he has fully complied with the terms of the agreement and Ms Anne should complete the sale and transfer the suit property to him.
Mr. White has instructed you to file a suit seeking orders to compel Ms Anne to transfer the suit property to him.
In addition your client fears that before hearing and determination of the main suit, there is a high probability that Ms Anne may dispose off the suit property to a third party and hence defeat the end of justice.
As a learned Advocate, you have advised Mr. White that you can apply your vast knowledge in civil litigation to obtain the necessary orders so as to protect the interests of your client.
- What are the orders that you are going to seek from the court? (5 marks)
- Draft the application you will file in court in order to seek these orders. (15 marks)
ATP 100 Civil Litigation 2016-1-2