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Court of AppealDismissedCivil Appeal No. 185 of 2007

David Mose Gekara v Hezron Nyachae [2012] KECA 49 (KLR)

Court of Appeal of Kenya
19 September 2012
OMOmoloOOOnyango OtienoOKOkwengu
2,752 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that a land seller cannot rescind a sale for late payment unless time was expressly made of the essence and proper written notice was given.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Eldoret from the judgment and decree of Kaburu Bauni, J of the High Court (H.C.C.C. No. 110 of 2005, dated 13th June 2007), dismissing the appellant's suit seeking a declaration that a land sale agreement over parcel Kuinet (B)/SFT 9478 was null and void, together with injunction, eviction, damages and mesne profits. The appellant's case was that the respondent breached the agreement by failing to pay the second instalment of Kshs.100,000 within the stipulated first week of March 2005. Writing the lead judgment, Onyango Otieno, JA held the crux was whether time was of the essence. Applying Sagoo v Dourado and Njamunya v Nyaga, the court found no express stipulation, no written notice making time of the essence, an open completion date, and conduct by the appellant in accepting payments into his bank account that condoned the delay; the full price of Kshs.370,000 had been paid before the appellant attempted rescission by bankers cheque. No breach therefore occurred. The court found courts cannot injunct what has already taken place, the respondent was rightly on the land, and mesne profits could not arise. Okwengu, JA concurred in full. The appeal was dismissed with costs to the respondent. The judgment binds lower courts on the principles governing when time is of the essence in contracts.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether time was of the essence in the land sale agreement of 25th January 2005
  2. 2.Whether the respondent breached the agreement by paying the second instalment late
  3. 3.Whether the agreement was null and void and incapable of specific performance
  4. 4.Whether the appellant was entitled to injunction, eviction and mesne profits

Key legal issues

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01

Whether time was of the essence in the land sale agreement

Holding

Time was not of the essence: there was no express stipulation, no written notice of default, and the full price had been paid before rescission was attempted; the appellant's conduct in accepting payments into his bank account confirmed this.

Reasoning

The court applied the three Sagoo v Dourado principles. No clause made time of the essence; the completion date was left open ('soon after the above specified dates'); the appellant never gave written notice making time of the essence, only an unproven alleged telephone protest; he accepted later payments through his own bank account; and the whole Kshs.370,000 was paid before he attempted a refund by bankers cheque. Conduct condoned the delay, so no breach occurred.

p. 4
02

Whether the appellant was entitled to injunction, eviction and mesne profits

Holding

None of these remedies was available because the respondent did not breach the contract and was in lawful possession.

Reasoning

The respondent had been in possession since 2004 and had fully paid the agreed price. There being no breach, the contract was valid, the respondent was rightly on the land, and mesne profits could not arise. Registered ownership remained with the Settlement Fund Trustees as titles had not issued to the appellant.

p. 5

Legal principles established

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  • Time will not be considered of the essence unless the parties expressly so stipulate, the nature or circumstances of the contract show it, or a party subjected to unreasonable delay gives notice making time of the essence.
  • Where the contract does not stipulate that time is of the essence, written notice giving a reasonable time to rectify the default is required before time can be made of the essence.

Court orders

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  1. 1.Appeal dismissed
  2. 2.Costs of the appeal to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

OO
majority

Wrote the judgment

Lead judgment analysing whether time was of the essence in the land sale agreement; concluded there was no breach because no written notice making time of essence was given and the full purchase price had been paid before rescission was attempted.

That issue is whether or not time was of essence in respect of the agreement. If time was of essence then the contract was breached and if not then there was no breach of contract as the learned Judge did find.p. 4
OK
concurring

Wrote the judgment

Agreed entirely with the judgment of Onyango Otieno, JA in draft, adding nothing.

I have read in draft the judgment of Onyango Otieno, J.A. and I do agree with it in its entirety. I have nothing useful to add.p. 5
OM
majority
On appeal from
High Court of Kenya at Eldoret
H.C.C.C. No. 110 of 2005
Jurisdiction invoked
First appeal to the Court of Appeal under the applicable Court of Appeal jurisdiction, delivered pursuant to Rule 32(3) of the Court of Appeal Rules

Relief refused

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Declaration that the contract was null and void

There was no breach of contract as time was not of the essence and the full purchase price had been paid before rescission was attempted

p. 3

Permanent injunction and eviction of the respondent

The respondent had not breached the contract and was rightly on the land; courts cannot injunct what has already taken place

p. 5

General damages for breach of contract and mesne profits

No breach was established so mesne profits could not arise

p. 5

Costs

Appeal dismissed with costs to the respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

That issue is whether or not time was of essence in respect of the agreement. If time was of essence then the contract was breached and if not then there was no breach of contract as the learned Judge did find.
p. 4Crux of the appeal - essence of time
In contracts of all types, time will not be considered to be of essence unless:(i) The parties expressly stipulate that conditions as to time must be strictly complied.
p. 4Test for time being of the essence (Sagoo v Dourado)
In short, this appeal lacks merit. As Okwengu, J.A. also agrees, it is dismissed with costs to the respondent.
p. 5Final orders and disposition
Courts cannot injunct what has taken place.
p. 5Injunction and completed facts

Issues in the judgment

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minor

The judgment records Okwengu, J.A.'s agreement in the body of the lead judgment ('As Okwengu, J.A. also agrees, it is dismissed with costs') and a separate short concurrence signed by Okwengu, but Omolo, J.A., listed in the coram, has no separate judgment recorded; the single-judgment text is signed only by Onyango Otieno and Okwengu.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "David Mose Gekara v Hezron Nyachae [2012] KECA 49 (KLR)", Case Analysis (2012). Civil Appeal No. 185 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/49/eng@2012-09-19

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