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Court of AppealDismissedNot stated in the judgment

Masinjila v Kanda (Civil Appeal 111 of 2019) [2024] KECA 1086 (KLR)

Court of Appeal of Kenya
19 August 2024
1,929 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled a land buyer who couldn't pay the balance because of endless family lawsuits was not in breach of the sale agreement.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal against the judgment of Mwangi Njoroge, J. delivered on October 25, 2018, dismissing the appellant's suit. The appellant had sued for rescission of a December 10, 2013 agreement for the sale of 5 acres of land for Kshs. 1,425,000, of which the respondent paid Kshs. 700,000, with the balance of Kshs. 725,000 due on or before December 31, 2014. The appellant sought rescission, vacant possession, mesne profits and damages for fraudulent misrepresentation. The respondent resisted on the ground that a series of suits filed by the appellant's family members - succession causes, a miscellaneous cause and Kitale ELC Case No. 63 of 2016 - frustrated his ability to pay the balance and obtain transfer. Applying the settled first-appeal jurisdiction under Selle v Associated Motor Boat Co., the Court reconsidered the evidence and agreed with the trial Judge that the respondent was not in breach: the appellant lacked capacity to deliver title and failed to give the respondent quiet enjoyment. The Court rejected the appellant's contention that the trial Judge made orders not sought, finding the Judge merely dismissed the suit with costs. It also declined to determine the respondent's res judicata plea based on Kitale ELC Case No. 63 of 2016, as it was raised for the first time on appeal without a counter-claim or trial determination. The appeal was dismissed with costs to the respondent on August 19, 2024, by a unanimous bench of Sichale, Ochieng and Korir, JJA.

Questions the Court framed

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

  1. 1.Whether the respondent was in breach of the sale agreement dated December 10, 2013 by failing to pay the balance of the purchase price by December 31, 2014
  2. 2.Whether the trial Judge erred in dismissing the appellant's suit for rescission, vacant possession, mesne profits and damages
  3. 3.Whether the trial Judge made orders not sought by the respondent
  4. 4.Whether the suit was res judicata in view of Kitale ELC Case No. 63 of 2016

Key legal issues

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01

Whether the respondent was in breach of the sale agreement for non-payment of the balance of the purchase price

Holding

The respondent was not in breach; he was excused from paying by the litigation brought against him by the appellant's family, and the appellant failed to give quiet enjoyment or demonstrate capacity to deliver title.

Reasoning

The Court endorsed the trial Judge's finding that the essence of a land sale agreement to a purchaser is the seller's ability to deliver title. The appellant, a mere beneficiary without title, was shown to lack that ability. Faced with a plethora of suits by the appellant's relatives, the respondent could not reasonably be expected to pay the balance, and had committed himself to completing once the appellant obtained title.

p. 4
02

Whether res judicata could be determined on appeal when first raised in submissions

Holding

No. An issue not raised, pleaded or determined at trial cannot be determined for the first time on appeal.

Reasoning

The respondent did not file a counter-claim and never raised res judicata during the trial before the High Court. Having raised it only in submissions before the Court of Appeal, there was no trial determination on the issue capable of being the subject of an appeal, and the Court declined to entertain it.

p. 4
03

Whether the trial Judge issued orders not sought by the respondent

Holding

No. The Judge only dismissed the suit with costs; he did not direct payment of the balance of the purchase price.

Reasoning

The appellant contended the trial court erred in directing the respondent to pay the balance subject to the appellant effecting a transfer. The Court of Appeal found no such order was made; the Judge merely observed that the balance might be paid once the appellant was ready and willing to transact.

p. 4

Legal principles established

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  • On a first appeal, the Court reconsider the evidence, evaluate it itself and draw its own conclusions, while making due allowance for the fact that it neither saw nor heard the witnesses.
  • A party cannot raise an issue, such as res judicata, for the first time on appeal where it was neither pleaded nor determined at trial.

Court orders

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  1. 1.The appeal is 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.

majority
majority
majority
On appeal from
High Court of Kenya
Not stated in the judgment
Jurisdiction invoked
First appeal to the Court of Appeal under its appellate jurisdiction (provision not expressly cited in the judgment)

Relief refused

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Rescission of the sale agreement, vacant possession, mesne profits and damages as sought in the plaint

The Court agreed with the trial Judge that the respondent was not in breach; he was prevented from paying the balance by a multiplicity of suits filed by the appellant's family members

p. 4

Respondent's plea of res judicata based on Kitale ELC Case No. 63 of 2016

The issue was raised for the first time on appeal without a counter-claim or pleading at trial

p. 4

Costs

The appeal was 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.

An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled.
p. 3Duty of a first appellate court
We cannot in good conscience determine a matter raised for the 1st time in an appeal, the said issue not having been raised and a determination made thereof which determination then becomes the subject of an appeal.
p. 4Issues raised for the first time on appeal
The respondent could not be expected to pay the balance of the purchase price given that he faced a plethora of suits from the appellant’s immediate family members.
p. 4Breach of contract for sale of land
Be that as it may, we believe we have said enough to demonstrate that this appeal is for dismissal. It is hereby dismissed with costs to the respondent.
p. 4Final orders and costs

Issues in the judgment

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minor

Inconsistent case numbers for the respondent's cited litigation: the defence lists 'Bungoma Succession Cause No.119 of 2011' and 'Bungoma High Court Misc.Case NO.55 of 2012', while the judgment body refers to 'Bungoma Succession Cause No.118 of 2011' and 'Bungoma Misc.Cause No.55 of 2012', and submissions refer to 'Bungoma Miscellaneous Cause No.55 of 2015'.

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, "Masinjila v Kanda (Civil Appeal 111 of 2019) [2024] KECA 1086 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1086/eng@2024-08-19

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