An American investor has sued a Nairobi property developer over a Sh225 million off-plan deal, alleging unfair termination after paying for seven units in a project marketed as “Nairobi’s Icon.”
The claimant, identified as Mr KYH, a US citizen, told the Environment and Land Court that he invested heavily in the development in October 2024 after it was promoted to diaspora buyers as a premium project with strong returns.
He says the project was initiated by Eighty-Eight Nairobi Limited, owner of the 88 Nairobi building. He also claims that a person linked to the company, Jonathan Jackson, who marketed the venture, played a key role in securing investor trust before the dispute arose over payment handling and termination notices.
He says the development was pitched to diaspora buyers as a premium project with handsome investment returns.
The dispute started after the developer terminated the contract over the investor's alleged default in completing the payments, though he had deposited $1.25 million (Sh161 million) out of the required $1.75 million (Sh225 million).
“In the end, what was touted as ‘Nairobi Icon' has turned out to be 'Nairobi’s con'. I was denied a genuine opportunity to respond or regularize my position, not due to unwillingness, but due to Eighty-Eight's and Jackson's calculated failure to communicate as agreed,” he says in the affidavit.
The claimant says that after the overseas marketing, he built trust with the developer and that Jackson was closely involved in the communications and decisions that later led to the dispute, including the notices that triggered the alleged default.
The court case stems from how the developer handled payments, notices, and termination of the sale agreement.
According to the filings, Mr KYH agreed in March 2024 to buy 10 apartments on the 30th floor at $175,000 each, bringing the total price to $1.75 million (Sh225.7 million).
He paid in instalments and says that by October 2024, he had fully paid for seven of the units, amounting to $1.25 million (Sh161.2 million), constituting more than 70 per cent of the total purchase price.
Kenyan lawyers
He argues that, having crossed that threshold, his interest in the paid units had already crystallized and could not be defeated by a later termination. The suit names Eighty-Eight Nairobi Limited, Bank of Baroda, the Nairobi Lands Registrar, and the attorney-general as respondents.
The investor says the project was marketed mainly to Kenyans and other buyers living abroad, and that he insisted all formal communication be routed through his Kenyan lawyers because he lives in the United States and travels frequently.
He accuses the developer of ignoring that arrangement and sending critical notices directly to him, excluding his advocates, in what he describes as a deliberate move to engineer a default.
In his court papers, Mr KYH claims he was blindsided in October 2024 when he received a “final notice” demanding payment of a further $250,000 within three days, failing which the agreement would be rescinded.
He argues the timeline was unrealistic for an overseas buyer and that the notice was not meant to allow compliance.
The developer then moved to terminate the agreement, citing default. Mr KYH says the termination was unlawful, breached the contract’s communication clauses, and could not apply to the seven units he says were already fully paid for.
He is also challenging a contract clause that allows the vendor to retain up to 50 per cent of the purchase price as liquidated damages, arguing that it amounts to an unlawful penalty.
In his case, that would translate to about $875,000, or roughly Sh113.7 million, a figure he says bears no relation to any actual loss the developer may have suffered.
“This is a colossal sum which Eighty-Eight and Jackson intend to expropriate for themselves for an alleged, but disputed breach of contract, and manifestly amounts to a money grab,” claims the petitioner.
The suit further attacks a provision that ties any refund to the successful resale of the units, without interest, saying it allows the developer to hold large sums indefinitely while using the money to build, resulting in unjust enrichment and an arbitrary deprivation of property.
“By applying the Petitioner’s funds amounting to $1.25 million to the construction of the Property and retaining the same without completing the transfer or offering restitution, Eighty-Eight and Jackson have effectively and illegally and unconstitutionally taken the Petitioner’s property for its own use and enrichment,” he claims.
In a notable move, the investor has asked the court to allow other purchasers in the project who feel similarly aggrieved to join the case and press their claims together as a class action.
He says the dispute raises wider questions about how off-plan developments are financed and how far developers can go in enforcing forfeiture clauses against buyers who have already paid most of the purchase price.
He wants the court to declare the termination unlawful, protect his rights over the fully paid units, stop enforcement of the forfeiture clauses, and grant relief against what he calls unjust enrichment by the developer.
The respondents have yet to file their responses, and the case is pending hearing and determination.
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