Wakilii

Zawedde v Kensington Africa Limited (High Court Civil Suit No 214 of 2012)

High Court · [2017] UGCOMMC 253 · 2017 Judgment for Plaintiff AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for rescission of contract and recovery of purchase price
Decision
Judgment for the Plaintiff with orders for independent expert valuation, conditional refund of purchase price, compensation for delay, general damages, and damages for misrepresentation.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court found that the Defendant delayed handover and did not fully pay compensation for delay (USD 5,133 outstanding). Misrepresentation was established regarding the promise of two car parking spaces. The Plaintiff's six-month possession to make alterations estopped her from claiming delay for that period. The Plaintiff was not entitled to rescind the contract on the evidence adduced. The Court ordered an independent expert to assess whether the property met the standard of sample houses and its current value, with refund of any shortfall. Compensation, general damages for delay, damages for misrepresentation, and costs were awarded.

Outcome

Judgment for the Plaintiff with orders for independent expert valuation, conditional refund of purchase price, compensation for delay, general damages, and damages for misrepresentation.

Facts

In 2009, the Plaintiff purchased a four-bedroom villa from the Defendant, a property developer, for USD 212,000. The agreement specified anticipated completion by end of 2009, matching sample houses in quality and including two car parking spaces as advertised. By May 2011, construction was nearly complete, but the Plaintiff identified defects. The Defendant allowed the Plaintiff access from June to December 2011 to make interior alterations, during which further defects were noted including poor quality fittings, workmanship issues, and water leakages. In January 2012, the Plaintiff demanded remedy of defects and full compensation for delay. The Defendant paid USD 17,000 compensation (for delay until May 2011) and stated the house was ready for handover in February 2012. The Plaintiff did not inspect thereafter and rescinded the contract in March 2012, claiming the Defendant failed to deliver as promised.

Issues

  1. Whether the Defendant breached the agreement in the respects claimed by the Plaintiff, including whether the Defendant inordinately delayed handover, whether the Defendant discharged its duty to pay compensation for delay, whether poor quality fittings were installed, whether there was poor workmanship, and whether two parking spaces were promised.
  2. Whether the Defendant is guilty of misrepresentation.
  3. Whether the Plaintiff is estopped from citing delays under the contract on account of access given by the Defendant to enable alterations.
  4. Whether the Plaintiff is entitled to the remedies sought, including rescission of the contract, recovery of the purchase price, compensation for delay, special damages, general damages, and costs.

Orders

  • An independent expert agreed upon by the parties be commissioned and paid by both parties to ascertain the current value of the Property. If below the paid purchase price of USD 212,000, the Defendant will reimburse the Plaintiff the difference.
  • The independent expert should inspect the suit property and ensure it conforms to the promises made in the contract (standards of sample/show houses). If not, the Defendant should refund the full purchase price with interest of 20% per annum from the date of the contract until payment in full.
  • Compensation for delay to hand over of USD 5,133, with interest at 28% per annum from 2012 until payment in full.
  • General damages of UGX 10,000,000 for unnecessary delay to handover, with interest at 28% per annum from 2012 until payment in full.
  • Damages of USD 15,000 for misrepresentation concerning parking capacity, with interest at 10% per annum from date of the contract until payment in full.
  • Costs of this litigation incurred by the Plaintiff to be paid by the Defendant.

Rules and key headnotes

Contract Law — Breach of Contract — Delay in Performance — Computation of Compensation for Delay
Where a vendor undertakes to complete and hand over property by an anticipated completion date and fails to do so, the purchaser is entitled to compensation calculated at one percent of the amount paid per month of delay, excluding any period during which the purchaser's own actions (such as making alterations with exclusive possession) caused delay.
Contract Law — Misrepresentation — Sale by Description — Inducement to Contract
A false statement of fact made by a vendor in a sales catalogue or advertisement, which materially induces the purchaser to enter into a contract, constitutes misrepresentation. Where a property developer advertised and represented in sales materials that a villa included two car parking spaces, but only provided one, the representation was false and the purchaser is entitled to damages for misrepresentation.
Contract Law — Rescission — Right to Rescind — Proof of Fundamental Breach
A purchaser is not entitled to rescind a contract of sale on grounds of defects where the purchaser did not inspect the property after the vendor asserted defects had been remedied and handover was ready, and where the evidence did not establish on a balance of probabilities that the defects were so fundamental as to go to the root of the agreement.
Contract Law — Sale of Goods — Sale by Sample — Implied Terms
In a sale of property by reference to sample or show houses, there is an implied condition under the Sale of Goods Act that the goods (property) shall be free from defects rendering them unmerchantable which would not be apparent on examination of the sample. The vendor must deliver property matching the standard of the sample houses inspected and relied upon by the purchaser.
Civil Procedure — Evidence — Burden of Proof — Proof of Quality and Workmanship
Where a purchaser alleges poor quality fittings and workmanship but does not inspect the property after the vendor claims remedial work is complete, and the vendor fails to adduce evidence (such as certification by architects or photographs) proving the property met the promised standard, the court may order an independent expert assessment to determine the facts where both parties have failed to discharge their respective burdens of proof.
Contract Law — Estoppel — Delay Attributable to Purchaser
A purchaser who takes possession of property under construction for the purpose of making alterations at the purchaser's request, thereby causing delay, is estopped from attributing that period of delay to the vendor and cannot claim compensation or rely on that delay as grounds for rescission.
Damages & Quantum — General Damages — Assessment for Breach of Contract — Delay in Handover
In assessing general damages for breach of contract arising from delay in handing over completed property, the court shall consider the value of the subject matter, the economic inconvenience suffered by the innocent party (including mortgage servicing without income generation), and the nature and extent of the breach, including any laxity or negligence in the vendor's conduct.

Legislation cited (10)

Cases cited (9)

  • G.H Treifel "An outline of The Law of Contract, 1984 Edition at page 264
  • Kamugira v National Housing and Construction Corporation (High Court Civil Suit No 127 of 2008)
  • Estate of Shamji Visram Kurji Karsan v Shauresad Magaulal Bhatt and Another (1965) EA 789
  • Emunyat v Attorney General (High Court Civil Suit No 24 of 2002)
  • Grainger & Sons v Gough (1896) AC 325
  • Fisher v Bell (1961) 1 QB 394
  • Partridge v Crittenden (1968) 1 WLR 1208
  • Hwan Sung Industries Ltd v Tajdin Hussein and 2 Others (Supreme Court Civil Appeal No 8 of 2008)
  • Cheshire, Fifoot & Furmston's Law of Contract, 14th Edition at page 298

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Zawedde v Kensington Africa Limited (High Court Civil Suit No 214 of 2012) [2017] UGCommC 253 (10 March 2017)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.