Choitram & another v Nazari (Civil Appeal 8 of 1982) [1984] KECA 47 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there were clear and unequivocal admissions of fact, on the pleadings or otherwise (in correspondence and documents), entitling the plaintiffs to judgment under Order XII rule 6 without waiting for the determination of any other question
- 2.Whether a binding contract of sale existed between the parties (concluded through the correspondence beginning April 7, 1975 and the approved draft conveyance) capable of being enforced by specific performance
- 3.Whether the High Court judge exercised his discretion properly in dismissing the application for judgment on admissions
- 4.Whether the plaintiffs' later request for an abatement of Kshs 100,000 amounted to repudiation of the contract
- 5.Whether the costs of the appeal should be awarded and, if so, whether a certificate for two advocates should issue
Key legal issues
#Judgment on admissions under Order XII rule 6
Admissions may be express or implied, on the pleadings or otherwise (correspondence, affidavits, admitted documents, proved oral admissions); they must be clear, plain and obvious, and where the case is plain and obvious upon admissions the court is obliged to enter judgment without trial.
The court construed Order XII rule 6 (in material respects similar to Order 32 rule 6 of the English RSC and section equivalent of the Indian CPC) purposively. Admissions on the pleadings arise where allegations are not specifically traversed, a general denial being insufficient. Admissions in correspondence and the approved draft conveyance left no doubt that the parties had passed out of negotiation into a definite contract, so nothing was to be gained by a trial on liability.
Existence of a binding contract of sale
A new binding contract was concluded through the correspondence beginning April 7, 1975 and the defendant's advocate's approved draft conveyance; only completion of documents remained. The demise of the USAID lease did not affect it, and the plaintiffs' later proposal for a Kshs 100,000 abatement was a mere attempt at variation that neither varied nor repudiated the contract.
The defendant's advocate supplied the title deeds, approved the draft conveyance, and obtained the Bank's undertaking to pay the balance of Kshs 540,000; the engrossed conveyance was executed by two plaintiffs. The lease was a 'red herring' never contemplated at the original 1974 agreement, and the defendant herself spoke of 'sale' rather than 'proposed sale' in her letters of May 6 and 14.
Appellate interference with discretionary rulings
A judgment on admissions is discretionary and not a matter of right, but the discretion must be exercised judicially; the appellate court will interfere where the judge misdirected himself or was clearly wrong, as occurred here where the judge failed to make the analysis the rule requires.
The judge had treated the application as requiring analysis of pleadings, correspondence and law, yet dismissed it as 'very far from being a plain case' without conducting the necessary purposive analysis of the admissions which, on the material, existed on the pleadings and in the documents.
Legal principles established
#- Admissions for the purposes of Order XII rule 6 may be express or implied, on the pleadings or otherwise including correspondence, and must be plain and obvious, leaving no room for doubt that the parties passed from negotiation to a definite contract; once the case is plain and obvious upon admissions, judgment must follow and the court may not exercise its discretion so as to render the provision nugatory.
- Analysing pleadings, reading correspondence and applying the relevant law to determine whether admissions disclose a plain case is a normal judicial function; a judge who refuses to do so fails to give effect to the established law.
- A general denial is not a sufficient traverse of specific allegations of fact; allegations not specifically traversed are deemed admitted.
- An appellate court will not interfere with the exercise of discretion by a judge unless he misdirected himself in some matter, or it is manifest from the case as a whole that he was clearly wrong and misjustice has resulted.
- A binding contract is not repudiated by a flighty proposal to amend one of its terms; there must be a total refusal to perform or conduct evincing a defined intention not to perform.
Court orders
#- 1.Appeal allowed
- 2.Order of the High Court (Simpson J) dismissing the application for judgment on admissions set aside
- 3.Substituted therefor an order for specific performance of the contract for sale and transfer of LR No 214/575 to the plaintiffs
- 4.In the event of the defendant failing, neglecting or refusing to sign the necessary documents, the same to be done by the Registrar on her behalf
- 5.Costs in the High Court and in this court to the appellants (per Chesoni Ag JA); Kneller JA would have ordered no costs of the appeal
- 6.Certificate for two advocates refused
- 7.Question of damages for delay left for trial in the lower court should the parties wish to pursue it
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Lead judgment. Held that on a plain reading of the pleadings, correspondence and the approved draft conveyance there were clear admissions of a binding contract concluded by the April 7/May 7, 1975 correspondence, entitling the plaintiffs to judgment under Order XII rule 6; the learned judge below had failed to analyse the material as the rule requires. Would allow the appeal, set aside the High Court order and substitute an order for specific performance, but refused a certificate for two advocates because the confusion was of the plaintiffs' own making.
I would allow the appeal with costs, set aside the order of the High Court, and substitute therefore an order for specific performance of the contract for sale and transfer of the property in favour of the plaintifisp. 8
Wrote the judgment
Agreed with Madan JA's judgment and orders except on two points: because the binding agreement of May 7, 1975 was not made plain and obvious until Mr Price's reply on the second morning of the appeal, he would order no costs of the appeal; and had costs been awarded, a certificate for two advocates would have been justified.
I agree with the judgment of Madan JA and the orders proposed in it save, with respect, for two.p. 8
Wrote the judgment
Separate judgment surveying the law on judgment on admissions under Order XII rule 6, drawing on Indian and English authority. Found adequate admissions on the pleadings (insufficient general traverse) and in the correspondence and approved draft transfer of an enforceable contract, held the judge's discretion had been exercised on a misdirection, and would allow the appeal, set aside the High Court order, grant specific performance, award costs to the appellants in both courts, refuse a certificate for two counsel, and leave damages for delay to trial.
For the reasons stated I would allow the appeal, set aside the High Court order and grant an order for specific performance.p. 14
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over a ruling of the High Court (specific enabling provision not stated in the judgment)
Relief refused
#Certificate for two advocates
The confusion in the case arose from the plaintiffs' own uncrystallised and prolix pleadings and their abandoned reliance on the first oral agreement and trust; the case did not involve complicated points
Costs of the appeal (per Kneller JA)
The binding agreement was not made plain and obvious until counsel's reply on the second morning of the appeal
Costs
Appeal allowed with costs (Madan JA); Chesoni Ag JA awarded the appellants costs in the High Court and in the Court of Appeal; Kneller JA dissented on appeal costs, ordering no costs of the appeal; certificate for two advocates refused by all three judges
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I would allow the appeal with costs, set aside the order of the High Court, and substitute therefore an order for specific performance of the contract for sale and transfer of the property in favour of the plaintifis with a direction that in the event of the defendant failing, neglecting or refusing to sign the necessary documents therefor the same be done by the Registrar on her behalf.
For the reasons stated I would allow the appeal, set aside the High Court order and grant an order for specific performance. I would award the costs in the High Court and in this court to the appellants, but as the case did not involve any complicated points I would not certify costs for two counsel.
If upon a purposive interpretation of either clearly written or clearly implied, or both, admissions of fact the case is plain and obvious there is no room for discretion to let the matter go to trial for then nothing is to be gained by having a trial.
Admissions have to be plain and obvious, as plain as a pikestafi and clearly readable because they may result in judgment being entered.
A binding contract is not repudiated by a fiighty proposal to amend one of its terms.
The court may not exercise its discretion in a manner which renders nugatory an express provision of the law.
Issues in the judgment
#Divergence among the judges on the costs of the appeal: Madan JA proposed 'allow the appeal with costs' while Kneller JA expressly ordered no costs of the appeal, and Chesoni Ag JA awarded costs in both courts; the judgment concludes 'As Kneller JA and Chesoni Ag JA agree it is so ordered' despite Kneller JA's stated reservation on appeal costs.
The court states the binding contract was concluded on different dates: Madan JA's judgment centres on a contract made by the May 7 correspondence and Kneller JA refers to 'a binding agreement on May 7, 1975', whereas Chesoni Ag JA locates the concluded contract on April 19, 1975 when the defendant's advocate approved the draft transfer.
The case title of the appellants is given in the judgment only through the deponent's name and the parties are otherwise referred to as 'the plaintiffs' and 'the defendant' without the defendant's name being stated; the full party names cannot be established from the text.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- City Estate Corporation Limited v Standard Chartered Investment Services Limited & 2 others (Enviromental and Land Originating Summons E022 of 2025) [2026] KEELC 2025 (KLR)[2026] KEELC 2025 (KLR)13 Apr 2026
- Ngigi v Ogembo (Environment and Land Appeal E048 of 2024) [2025] KEELC 7620 (KLR)[2025] KEELC 7620 (KLR)31 Oct 2025
- Bajaber v Planning Systems Services Limited (Cause E871 of 2021) [2025] KEELRC 2846 (KLR)[2025] KEELRC 2846 (KLR)23 Oct 2025applied
- Thiongo v Egerton University (Employment and Labour Relations Cause E014 of 2024) [2025] KEELRC 1582 (KLR)[2025] KEELRC 1582 (KLR)30 May 2025applied
Cite this brief
#Cite this brief
Caselaw, "Choitram & another v Nazari (Civil Appeal 8 of 1982) [1984] KECA 47 (KLR)", Case Analysis (1984). Court of Appeal, Nairobi (Civil Appeal from High Court ruling by Simpson J). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1984/47/eng@1984-01-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.