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Court of AppealDismissedNot stated in the judgment· [1987] KECA 31 (KLR)

Simon Odinga v Charles Sande [1987] KECA 31 (KLR)

Court of Appeal of Kenya
9 February 1987
1,194 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This is a Court of Appeal judgment of February 9, 1987 dismissing a second appeal by Simon Odinga against a decree of specific performance granted to Charles Sande. In 1979 Odinga agreed to sell 11.5 acres to Sande; by a 1980 agreement altered by consent, 5.3 acres were sold to Sande with subdivision approved by the Commissioner of Lands and the Municipal Council of Kakamega, the vendor retaining the balance. The trial magistrate decreed specific performance; the High Court on appeal dismissed the vendor's appeal. Gachuhi JA, in the leading judgment, rejected the appellant's three supplementary grounds alleging an implied condition precedent that the vendor obtain alternative land, holding that no condition precedent could be implied in the second agreement where the vendor sold only part of his land. The Court also upheld the amendment of pleadings under Rule 44(2) allowing reliance on the March 27, 1980 agreement, and the Land Control Act ground was abandoned as inapplicable to municipal land. On trust, the Court held that trust must be specifically pleaded, and the proviso to section 28 of the Registered Land Act does not apply where subdivision was approved and the family retains land. Platt JA concurred substantially, adding that any condition precedent must be clear and in writing under section 3 of the Contract Act, and Apaloo JA agreed. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Implied condition precedent

Holding

No condition precedent can be implied in the second (1980) agreement; the appeal fails on this ground.

Reasoning

There was no evidence in the written agreement or oral evidence of a conditional precedent. Any implication of a condition that the vendor obtain alternative land could only attach to the first agreement, which was altered in 1980 when the parties agreed on the sale of 5.3 acres. The vendor was selling only part of his land, having retained the balance, and subdivision had been approved by the Commissioner of Lands and the Municipal Council of Kakamega.

p. 1
02

Amendment of pleadings to rely on the later agreement

Holding

The amendment under Rule 44(2) permitting reliance on the March 27, 1980 agreement was properly granted and this ground of appeal fails.

Reasoning

The respondent had pleaded the 1979 agreement for 11.5 acres, which was rescinded by the later agreement. The respondent promptly applied to amend, the court allowed the amendment to tie up with the evidence, and all the evidence before the court was based on the later agreement of March 27, 1980 for the purchase of 5.3 acres.

p. 2
03

Land Control Act consent

Holding

The ground was not proceeded with because the Land Control Act does not apply to land within a municipality.

Reasoning

Counsel's ground invoking the necessity of Land Board consent under section 6 of the Land Control Act (Cap 302) was abandoned, as the statute does not apply to land situated within the Municipality of Kakamega.

p. 2
04

Trust under the proviso to section 28 of the Registered Land Act

Holding

The proviso does not avail the appellant; trust must be specifically pleaded and the family here is not rendered landless.

Reasoning

Trust should be specifically pleaded with particulars. The proviso to section 28 is commonly applied where relatives have interests in land, or where a sale would leave a wife without land to cultivate or children without inheritance. Here the matter had gone through the land board, subdivision was approved, and the appellant's family retained a portion to live on and inherit, so the proviso does not apply.

p. 2

Legal principles established

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  • A condition precedent to a contract of sale cannot be implied against a vendor of part only of his land, especially where subdivision was approved; any such condition, even in a collateral agreement, must be clear and, if part of the main sale agreement, must be in writing.
  • A claim of trust must be specifically pleaded with particulars; the proviso to section 28 of the Registered Land Act cannot be invoked where subdivision has been approved by the land board and the vendor's family retains a portion of the land.
  • A registered owner who is a trustee holds all the powers of a registered owner but must exercise them in accordance with the trust.

Court orders

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  1. 1.Appeal dismissed
  2. 2.Costs of the appeal awarded to the respondent
On appeal from
High Court of Kenya, Kakamega
Not stated in the judgment
Jurisdiction invoked
First appeal to the Court of Appeal from the High Court (statutory appellate jurisdiction; no specific constitutional provision stated)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Simon Odinga v Charles Sande [1987] KECA 31 (KLR)", Case Analysis (1987). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1987/31/eng@1987-02-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.