Mbithi v Mathare [1986] KECA 17 (KLR)
The bottom line
#The Court of Appeal ruled that a seller who blocks a property sale cannot then punish the buyer for failing to complete it.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether Mathare was entitled to enter into possession of the suit premises on April 8, 1977 before payment of the balance of the purchase price
- 2.Whether the balance of the purchase price was Kshs 144,087.50 or a larger sum
- 3.Whether Mathare was entitled to vacant possession two months from August 24, 1977
- 4.Whether the appeal was premature given the reservation of the damages issues for a later hearing
Key legal issues
#Entitlement to possession before payment of the balance
The trial judge made no finding that Mathare was or was not entitled to enter possession on April 8, 1977, so the first ground of appeal failed.
Kneller JA noted the trial judge found it common ground that Mathare completed the main building and occupied it by April 8, 1977, but made no finding on his entitlement to do so. Without such a finding, the appellant's first ground could not succeed. The court could not disturb a decision the trial judge never made.
The balance of the purchase price
Any dispute over the correct balance was a matter for a simple account; the Mbithis could not accept the balance after their rescission letter of March 26, 1977, so no merit arose in the point.
The appellant argued the balance exceeded Kshs 144,087.50. Kneller JA held this was a matter for a simple account to be taken and that, in any event, after Mbithi decided to pull out of the agreement the Mbithis would not give clear title or accept the balance or any part of it, defeating the point.
Prematurity of appeal where damages are reserved
Gachuhi Ag JA held the appeal was premature because the damages issue was reserved for evidence and argument at a later date and it was unclear whether liability or quantum was reserved.
The trial judge reserved the damages issues to himself by consent. Since the only issue dealt with on the pleadings was the validity of the agreement of sale, the appellant should have waited for findings on damages before appealing; it was otiose to argue points on which no specific finding was made.
Whether findings bearing on damages should be set aside (Platt Ag JA, dissenting)
Platt Ag JA would have allowed the appeal to the limited extent of setting aside the findings relating to damages, so liability and quantum could be litigated afresh, while leaving the order for vacant possession standing.
Because the consent agreement reserving damages was unclear whether it covered liability as well as quantum, Platt Ag JA took the view it was wide enough for both. The best course was to allow the parties to adduce all relevant evidence and arguments on damages in the High Court, even if some grounds were revisited, so the dispute could be decided once and for all.
Legal principles established
#- A party who prevents completion of a contract cannot then rely on the other party's failure to complete to found a claim - the court adopted Walton J's reasoning in Rightside Properties v Gray as applied in Thomas Joseph Openda v Peter Martin Ahn
- Where a trial judge has expressly reserved an issue (damages) for a future hearing, there is nothing to appeal from on that issue
Court orders
#- 1.Appeal dismissed with costs
- 2.Judgment and orders of the High Court upheld
- 3.Parties at liberty to return to the High Court on all the issues in the cross-claims for damages
The bench
#Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.
Wrote the judgment
Kneller JA reviewed the trial before Cockar J, held the first ground of appeal failed as the trial judge made no finding that Mathare was entitled to enter possession, and found no merit in the remaining grounds, invoking the unattractiveness of a vendor who prevents completion then resiles. He would uphold the High Court judgment and dismiss the appeal with costs, leaving the parties free to return to the High Court on the cross-claims for damages.
In short, then, the judgment and orders of the High Court should be upheld and the appeal dismissed with costs.p. 5
Wrote the judgment
Platt Ag JA, in a separate judgment, analysed the agreement extending completion to March 25, 1977 and the consent reserving damages. He considered the trial judge erred in finding Kshs 144,087.50 the true balance, and proposed that the order for vacant possession stand but the findings bearing on damages be set aside so both liability and quantum could be litigated. He would have allowed the appeal to a limited extent, with costs of the appeal in the cause.
Therefore I would allow this appeal to the limited extent of setting aside the findings of the learned judge which relate to damages apart from the decisions that Mrs Mbithi was not a co-purchaser of the suit premises;p. 10
Wrote the judgment
Gachuhi Ag JA agreed with the dismissal of the appeal, holding that the main issue in the plaint, rescission, was decided below with no appeal against it, and that the damages question had been reserved, rendering the appeal premature.
I am persuaded to accept m Muthoga’s view because the only issued that was dealt with from the pleading was of the validity of the agreement of sale.p. 10
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- First appeal to the Court of Appeal under Kenyan appellate jurisdiction over High Court civil decisions
Relief refused
#Declaration that Mbithi was entitled to vacant possession
Mbithi was not entitled to vacant possession at the time of filing suit and no longer sought it; Mathare was entitled to vacant possession against the Mbithis
Dismissal of Mathare's counterclaim with costs
The counterclaim for damages could not be dismissed until the issue of damages was decided
Costs
The appeal is dismissed with costs.
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.
As Gachuhi Ag JA agrees, the order of the court is that the appeal is dismissed with costs.
In short, then, the judgment and orders of the High Court should be upheld and the appeal dismissed with costs. The parties are at liberty, however, to return to the High Court on all the issues in the cross-claims for damages if they are not exhausted by all this litigation or cannot agree them.
This is the morality of a game, not of a serious legal contest.
Furthermore, because the crossclaims for damages have been expressly adjourned for another day by Mr. Justice cockar there was nothing to appeal from on those issues.
Issues in the judgment
#The judgment records Platt Ag JA's proposed orders allowing the appeal in part, but the operative order was made on Kneller and Gachuhi Ag JJAs' agreement; the final disposition reflects the majority, though the judgment does not expressly state that Platt Ag JA's proposed orders were not adopted
The judgment contains internal inconsistencies in the record (e.g. the rescission letter dated both March 26 and March 25, 1977; the agreement dated November 2 and November 5, 1976; deposit figures of Kshs 30,000, 80,000 and 98,000 in different passages)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbithi v Mathare [1986] KECA 17 (KLR)", Case Analysis (1986). Civil Appeal No 23 of 1983. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1986/17/eng@1986-04-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.