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Court of AppealPartially AllowedCourt of Appeal Appeal (number not stated in judgment)· [2024] KECA 1755 (KLR)

Gabrielle Mutie Kivungi v Margaret Kamene Mangenge

Court of Appeal of Kenya
6 December 2024
SKS. Gatembu KairuSKS. ole KantaiJMJ. Mativo
3,215 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to force a land sale because the buyer breached the contract, but ordered the seller to refund the buyer's deposit.

What this practically means

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Executive summary

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The Court of Appeal allowed in part a first appeal against the dismissal by the Environment and Land Court (Mbogo, J.) of the appellant's suit seeking specific performance of a 'home-made' agreement for the sale of Plots Nos. 169 and 170 at Ngulu-Kikumbulyu, Makueni County, for Kshs.800,000. The appellant paid a deposit of Kshs.540,000, with the balance of Kshs.260,000 payable within 42 days, and alleged a further Kshs.100,000 payment in December 2014, which the respondent disputed. The Court framed two issues: whether specific performance was rightly refused, and whether a refund of the deposit should have been ordered. On the first, the Court held that specific performance is a discretionary remedy, conditional upon the purchaser paying or tendering the purchase price; the appellant was in clear breach, having failed to pay the balance within the agreed 42 days and adducing no evidence of tender. The refusal of specific performance was therefore affirmed. On the second, although no prayer for refund appeared in the plaint, the Court applied the Odd Jobs principle, holding that because the deposit was pleaded, admitted, canvassed in submissions, and the property had allegedly been resold, the refund was a live issue the trial court should have resolved. The Court varied the ELC decision by ordering the respondent to refund Kshs.540,000 within 60 days, failing which interest at 12% per annum would run from the date of judgment. Each party was to bear its own costs of the appeal.

Key legal issues

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01

Availability of specific performance where purchaser is in breach

Holding

Specific performance is a discretionary equitable remedy not available to a purchaser in breach of the agreement; the appellant failed to pay the balance of the purchase price within the agreed 42 days and adduced no evidence of tender.

Reasoning

The agreement required payment of the full purchase price before possession and transfer, with the balance payable within 42 days. Even accepting the disputed Kshs.100,000 payment, it fell outside the agreed timeframe, and there was no evidence of tender of the remaining balance. Conduct of the parties is a relevant consideration in exercising discretion, and the Judge's factors were discernible and relevant, giving the Court no basis to interfere.

p. 4
02

Refund of deposit as an unpleaded issue

Holding

Although no prayer for refund was made, the issue was live before the trial court because it featured in the pleadings, witness statements, submissions, and an admission of receipt of the deposit; the Judge should have granted the refund.

Reasoning

Parties are bound by their pleadings, but under the Odd Jobs principle a court may determine an unpleaded issue fully canvassed at trial. The deposit payment was pleaded and admitted, both parties addressed refund in submissions, and the respondent had resold the property to a third party. Justice required the refund be ordered despite the absence of an express prayer.

p. 6

Legal principles established

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  • A condition precedent for specific performance of an agreement for sale is that the purchaser must pay or tender the purchase price to the seller at the time and place of completing the sale.
  • While parties are bound by their pleadings, a court may base its decision on an unpleaded issue if, from the course followed at the trial, the issue was left to the court for decision and fully canvassed by the parties.
  • On a first appeal, the Court of Appeal reviews the evidence and draws its own conclusions, but will not interfere with findings of fact unless based on no evidence, a misapprehension of the evidence, or demonstrably wrong principles.

Court orders

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  1. 1.Appeal allowed to the extent that the decision of the ELC is varied by ordering the respondent to refund Kshs.540,000.00 to the appellant within 60 days of delivery of the judgment
  2. 2.In default of payment within 60 days, the said amount to attract interest at 12% p.a. from the date of delivery of the judgment
  3. 3.Each party to bear its own costs of the appeal
On appeal from
Environment and Land Court
Makueni ELC Case No. 48 of 2017
Jurisdiction invoked
First appeal to the Court of Appeal (no specific provision cited in judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Gabrielle Mutie Kivungi v Margaret Kamene Mangenge", Case Analysis (2024). Court of Appeal Appeal (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1755/eng@2024-12-06

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