Mwaura Karuga v Apollo J. Kharuga & another [2020] KEELC 2224 (KLR)
The bottom line
#A Kenyan land buyer who paid most of the price won back his money with interest, but could not force transfer of land already sold to someone else.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Who between the Appellant and the Respondents was in breach of the Sale Agreement dated the 6th August, 2002.
- 2.Whether the Appellant was entitled to orders of specific performance.
- 3.Whether the Appeal or Cross Appeal is merited
Key legal issues
#Who breached the Sale Agreement dated 6th August 2002
It was the 2nd Respondent (vendor) who breached the agreement by failing to put the Appellant in possession, varying the payment terms by demanding a one-off payment, and selling the land to a third party
The court analysed clauses 1, 5, 6 and 9 of the Sale Agreement. On the evidence, the Appellant paid Kshs. 200,000 out of 300,000; clause 6 required him to take possession immediately, which he never did. The 2nd Respondent's letter of 24th November 2002 demanding the balance at once commenced a variation of the instalment terms, and DW1 admitted the land had been sold to a third party. The court applied the principle that parties are bound by their contract and that the vendor first departed from its terms.
Whether the Land Control Act voided the agreement for want of consent
The trial Magistrate erred in holding the agreement void under the Land Control Act because the issue of consent was not pleaded and no consent document was produced
The Appellant claimed he obtained Land Control Board consent but never produced a copy in court; the 2nd Respondent denied participating in the consent process and never applied for one. The court found the issue was not pleaded and hence the trial Magistrate erred by applying the Land Control Act to void the agreement. This finding supported upholding the refund direction while rejecting the voidness reasoning.
Whether the 1st Respondent (registered owner) was properly exonerated
Yes - by donating the Power of Attorney the 1st Respondent diverted his interest including the right to sue and be sued, so the trial court's finding was upheld
The court perused the Power of Attorney and found that the 2nd Respondent was authorised to undertake the transaction including executing instruments on the 1st Respondent's behalf. The trial Magistrate's exoneratation of the 1st Respondent was therefore upheld, and the Appellant's ground that the 1st Respondent was a necessary party failed.
Whether the Appellant was entitled to specific performance
No - the relief is discretionary and the land had been sold to a third party; the proper remedy was refund of the Kshs. 200,000 with interest
Relying on Gurdev Singh Birdi, Thrift Homes and Lamare v Dixon, the court held specific performance will not be granted where the claimant is in breach or where an adequate alternative remedy exists. Since the 2nd Respondent had disposed of the land to a third party, the trial court was right to refuse specific performance, but equity demanded refund of the purchase price received.
Legal principles established
#- The court does not make or improve a contract for the parties; clear express terms must be applied as they are
- A plaintiff seeking specific performance must show performance of all terms he undertook to perform
- Specific performance is discretionary and will not be granted where the plaintiff is in breach or where an adequate alternative remedy exists
- A vendor who receives part of the purchase price, fails to put the purchaser in possession, varies the agreement and disposes of the land to a third party must refund the purchase price received
Court orders
#- 1.This Appeal be and is hereby allowed.
- 2.The Cross Appeal be and is hereby dismissed.
- 3.Judgment and Order issued on the 21st January, 2015 reviewed with the 2nd Respondent directed to refund to the Appellant Kshs. 200,000 plus interest at court rates from the date of filing the suit until payment in full.
- 4.The costs of the Appeal awarded to the Appellant.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Principal Magistrate's Court at Kajiado
- Kajiado PMCC No. 130 of 2008
- Jurisdiction invoked
- First appeal to the Environment and Land Court (appeal filed 8th July 2015 against the judgment of the Principal Magistrate's Court at Kajiado)
Relief refused
#Order of specific performance of the Sale Agreement dated 6th August 2002
The 2nd Respondent had already sold the suit land to a third party and the Appellant was in any event not entitled as of right to specific performance
Revocation of the Power of Attorney Number 011/2001 and compelling the Registrar of Titles to execute the transfer documents
Not granted; the trial court's exoneratation of the 1st Respondent was upheld and the Appellant's suit in the lower court was not allowed as prayed
Costs
The costs of the Appeal is awarded to the Appellant.
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.
i. This Appeal be and is hereby allowed.
ii. The Cross Appeal be and is hereby dismissed
iii. That Judgment and Order issued on the 21st January, 2015 be and is hereby reviewed with the 2 nd Respondent directed to refund to the Appellant Kshs. 200,000 plus interest at court rates from the date of filing the suit until payment in full.
iv. That the costs of the Appeal is awarded to the Appellant.
The court does not make a contract for the parties. The court will not even improve the contract which the parties have made for themselves.
I hence find that the Learned Magistrate did not err by ordering him to refund the said purchase price.
Issues in the judgment
#The judgment inconsistently refers to the trial Magistrate as both male and female ('he ruled in favour of the Appellant' versus 'The Learned Magistrate acted beyond her jurisdiction')
The judgment records a demand letter as dated 24th November 2002 but also refers to a completion notice dated 24th April 2003 while discussing payment timeline calculations stating the last payment date 'should have been January, 2013', which appears inconsistent with a 2002 agreement providing for monthly instalments of Kshs. 50,000
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwaura Karuga v Apollo J. Kharuga & another [2020] KEELC 2224 (KLR)", Case Analysis (2020). Environment and Land Court Appeal (Machakos), Memorandum of Appeal dated 7th July 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2224/eng@2020-05-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.