(a) A Ten (10) percent deposit of the Purchase Price together with the legal fees, V.A.T. and incidentals paid by the Purchaser SHALL NOT BE refundable;
(b) The deposits on account of the water meter and the electricity meter shall be refundable within Fourteen (14) days of the new buyer making the payments to the Vendor’s Advocates; and
(c) Registration costs, costs for preparation and transfer of the reversionary interest, and cost of purchase of share in Management Company shall be refunded in full within Fourteen (14) days upon demand.
From the foregoing discussion, it is clear and we take the view;
(a) THAT Superior Homes (K) Limited accorded the Purchaser reasonable time and opportunity to meet and perform his obligations in accordance with the Agreement;
(b) THAT the Purchaser, despite various notices and reminders, failed to settle the balance of the Purchase Price amounting to Kenya Shillings Nine Million Six Hundred and Twelve Thousand Only (Kshs 9,612,000/=) on or before the Completion Date, thus did not meet his obligations as stipulated in the Agreement;
(c) THAT due to the default occasioned, the Agreement and in essence the transaction as a whole, stands terminated;
(d) THAT in accordance with Special Clause (O)(i) of the Agreement, the Purchaser is not entitled to a refund of the Deposit as a result of the default together with the legal fees, V.A.T. and incidentals paid to us as the Vendors Advocates as per Special Condition B of the Agreement.
REFUND OF PAYMENTS DUE TO THE PURCHASER
We advise that in accordance with the Special Clause (o)(ii), (iii) of the Agreement;
The deposit on account of Water and Electricity Meter, which amounts to Kenya Shillings Twenty Thousand and Two Hundred Only (20,200/=) shall be refunded in full within Fourteen (14) days upon demand.
The registration costs, costs for preparation and transfer of the reversionary interest, and cost of purchase of share in Management Company, which amount to Kenya Shillings Eight Thousand Only (Kshs 8,000/=) shall be refunded in full within Fourteen (14) days upon demand.
In this regard, we advise that the Purchaser is entitled to a refund of the sum of Kenya Shillings Twenty-Eight Thousand Two Hundred Only (Sh28,200/=), which sum shall not attract interest as demanded.
We trust that the above is instructive. Please do not hesitate to contact the undersigned for any information or clarification. Ian Henderson, Managing Director, Superior Homes Ltd
Preliminary Response from Cofek
A fatally faulty contract between yourselves and Mr John Chege Njuguna CANNOT purport to take away his consumer rights as per provisions of Article 46 of the Constitution and the Consumer Protection Act, 2012. In any case, and as per Section 7 of the Act, any ambiguities of such contracts would be interpreted in favour of the consumer.
We, therefore, hold that Mr Njuguna is entitled to full refund and interest on his funds. Kindly respond with your final offer to allow us make a firm and final decision on the recovery of the said funds.
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