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Court of AppealPartially AllowedCivil Appeal (Nairobi)

Wambugu v Njuguna (Civil Appeal 10 of 1982) [1983] KECA 69 (KLR)

Court of Appeal of Kenya
14 November 1983
AKA.A KnellerAHA.R.W HancoxZCZ.R Chesoni
7,201 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~29 min to read original · ~4 min brief

The bottom line

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A Kenyan land buyer who never finished paying cannot claim ownership or adverse possession while occupying with the seller's permission.

What this practically means

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Executive summary

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The appellant was the registered proprietor of 9.87 acres at Othaya/Kihugiri/57. The High Court at Nyeri (O'Kubasu J) had dismissed his suit for eviction and injunction and allowed the respondent's counterclaim for transfer of the land, accepting that a 1958 sale agreement existed. The Court of Appeal (Hancox JA leading, Chesoni Ag JA and Kneller JA concurring) allowed the appeal. The court held that a valid oral contract of sale existed, but the respondent, having paid only Kshs 2,300 of the Kshs 2,485 purchase price and made no attempt to complete for years after the balance fell due, could not obtain specific performance, which requires the plaintiff to have performed or to have been ready and willing to perform. On adverse possession, the court established the binding principle that a purchaser who enters under a licence is in permissive possession; time under the Limitation of Actions Act does not begin to run until the licence is determined, and permission and adverse possession cannot coexist. Since the licence was determined, at earliest, by the letter of May 28, 1974 and at latest by the notice to vacate of July 11, 1975, no continuous twelve-year period had run. The respondent also never repudiated the contract, so he could not claim adverse possession with hindsight. The Court of Appeal set aside the High Court's dismissal of the appellant's suit, granted eviction and a perpetual injunction, vacated the respondent's caution, ordered repayment of Kshs 2,300, dismissed the counterclaim with costs, and awarded the appellant costs of the appeal and in the High Court.

Questions the Court framed

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

  1. 1.Whether there was a valid oral contract of sale of Othaya/Kihugiri/57 between the parties
  2. 2.Whether the respondent had performed his obligations under the contract so as to be entitled to specific performance (transfer of the land)
  3. 3.Whether the respondent had acquired title by adverse possession
  4. 4.Whether the matter was res judicata by reason of the suit in the senior resident magistrate's court
  5. 5.Whether the Land Control Act (cap 302) rendered the sale void for want of land control board consent

Key legal issues

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01

Existence and validity of the 1958 sale agreement

Holding

A valid oral contract of sale of the suit land for Kshs 2,485 existed between the parties.

Reasoning

The trial judge found the agreement genuine; exhibit C, though informally drawn, fell within the rule that what can be made certain is certain, and the respondent spoke of paying Kshs 800 without challenge. Both judges accepted the contract existed, though the respondent's witnesses were confused on dates and amounts.

p. 6
02

Specific performance of the sale agreement

Holding

Specific performance refused because the respondent never completed payment and was not ready and willing to perform.

Reasoning

The respondent paid only Kshs 2,300 of the Kshs 2,485 price, defaulted on the monthly instalments and on the completion dates, and made no attempt to pay until well after suit. His obligation to pay the price was entire and indivisible; partial payment was not substantial performance, so the vendor was entitled to treat performance as having failed.

p. 2
03

Whether the vendor could repudiate for delay without making time of the essence

Holding

Strictly, the appellant could not repudiate merely for delay since time was not of the essence and no notice making it so was given; but repudiation was still effective for the respondent's failure of performance.

Reasoning

Chesoni Ag JA held that the 1958 agreement did not make time of the essence and the necessary notice was never given, so delay alone could not ground rescission. However, the respondent's failure to pay the entire price constituted failure of performance of the whole contract, entitling the appellant to repudiate on that basis.

p. 7
04

Adverse possession

Holding

The respondent's possession was permissive throughout and never became adverse; no continuous twelve-year statutory period ran.

Reasoning

A purchaser who enters under a licence is not in adverse possession until the licence is determined. The licence was determined, at earliest, by the letter of May 28, 1974 and at latest by the notice of July 11, 1975; thereafter the statutory period had not run. The respondent never repudiated the contract, and time cannot be claimed with hindsight while the contract subsisted.

p. 3
05

Res judicata

Holding

The suit was not res judicata because the magistrate's court suit never went to hearing but was transferred to the High Court.

Reasoning

Kneller JA confirmed Hancox JA's conclusion that since the senior resident magistrate's suit was transferred rather than determined, no decision existed to found a plea of res judicata.

p. 9

Legal principles established

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  • A purchaser in possession under a subsisting sale agreement is in permissive possession; limitation does not begin to run against the vendor until the licence or permission is determined, and permission and adverse possession cannot coexist.
  • Specific performance will not be granted to a plaintiff who has not performed or shown himself ready and willing to perform his own obligations under the contract.
  • Where time is not of the essence of a contract for sale of land, the vendor cannot rescind for delay without first giving notice making time of the essence.
  • Possession does not become adverse before the end of the period for which permission to occupy has been given.

Court orders

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  1. 1.Appeal allowed
  2. 2.Order of the High Court dismissing the appellant's suit with costs set aside
  3. 3.Appellant granted order for eviction of the respondent from Othaya/Kihugiri/57
  4. 4.Perpetual injunction restraining the respondent, members of his family, his servants or agents from remaining on or entering the land
  5. 5.Caution entered by the respondent against the title vacated
  6. 6.Respondent's counterclaim dismissed with costs
  7. 7.Appellant to repay the respondent Kshs 2,300 proved to have been paid
  8. 8.Respondent to pay the appellant the costs of the appeal and of the proceedings in the High Court

The bench

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

AK
majority
AH
majority

Wrote the judgment

Wrote the leading judgment. Held that the respondent, having entered under a licence pursuant to a sale agreement he never completed paying for, could not obtain specific performance nor claim adverse possession; possession does not become adverse while permission subsists.

He cannot have that effective right if the person in occupation is there under a contract, or other valid permission or licence, which has not been determined.p. 3
ZC
majority

Wrote the judgment

Wrote a separate concurring judgment. Held that although a valid contract of sale existed, time was never made of the essence, so the appellant could not repudiate for delay; however, the respondent's failure to complete meant specific performance could not issue, and the periods of occupation under permission never amounted to a continuous twelve years of adverse possession.

The appellant was, in my view, entitled to repudiate the contract of sale of the suit land for failure of performance and as the respondent had failed to perform his part, he could not demand performance by the appellant.p. 7
On appeal from
High Court of Kenya at Nyeri
Civil Suit filed July 13, 1977 (transferred from Nyeri Senior Resident Magistrate's Civil Suit 212 of 1976)
Jurisdiction invoked
Statutory right of appeal from the High Court to the Court of Appeal

Relief refused

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Respondent's counterclaim for transfer and registration of the suit land (specific performance)

The respondent did not perform his part of the bargain nor show he was at all times ready and willing to perform; he never paid the full purchase price and made no attempt to do so for several years after the balance fell due.

p. 2

Claim to title by adverse possession

Possession was permissive, and permission and adverse possession cannot coexist; the clock ran only from determination of the licence, and no continuous twelve-year period elapsed.

p. 3

Costs

The respondent to pay the appellant the costs of this appeal and the costs of the proceedings in the High Court.

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.

I would set aside the order of the High Court dismissing the suit with costs and I would grant to the appellant the orders of eviction of the respondent and the injunction which he seeks.
p. 4Disposition - reversal of the High Court
I would also, as a consequence of this, order that the caution entered by the respondent be vacated and that the total of Kshs 2,300 which the respondent has proved he has paid be repaid to him.
p. 4Final orders - vacation of caution and refund
Finally, I would order that the respondent pay the costs of this appeal and of the proceedings in the High Court.
p. 4Costs
The upshot is that the appeal is allowed, the order of the High Court dismissing the suit with costs is set aside, the appellant is granted orders to evict the respondent from Othaya/Kihugiri/57
p. 10Disposition per Kneller JA
the two cannot coexist
p. 3Permissive possession and adverse possession
a person (here the appellant) must have an effective right to make entry and to recover possession of the land in order that the statute may begin to run
p. 3Commencement of limitation against a vendor

Issues in the judgment

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minor

Discrepancy between the two judgments on the number of tea stems planted (19,000 in Hancox JA's judgment; 16,000 in Chesoni Ag JA's judgment)

minor

The judgment records internal inconsistency in the pleadings' dates, e.g. the amended plaint's date of the notice to vacate and the letter dates

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, "Wambugu v Njuguna (Civil Appeal 10 of 1982) [1983] KECA 69 (KLR)", Case Analysis (1983). Civil Appeal (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1983/69/eng@1983-11-14

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