JULIUS COSMAS MBITHI v JOHN WALLACE MATHARE [1986] KECA 13 (KLR)
The bottom line
#The Court of Appeal ruled a vendor who blocks a property sale cannot then punish the buyer for failing to pay the balance.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether Mathare was entitled to enter into possession of the suit premises in April 1977 before paying the balance of the purchase price
- 2.Whether the balance of the purchase price was Kshs 144,087.50 or a larger amount
- 3.Whether Mathare was entitled to vacant possession following payment of Kshs 144,087.50 into court on August 24, 1977
- 4.Whether Mbithi caused or delayed Mathare's payment of the balance of the purchase price
- 5.Whether Mbithi remained in possession unlawfully after the balance was paid into court
Key legal issues
#Whether Mathare was entitled to enter into possession before completing payment
The first ground of appeal fails because the trial judge made no finding that Mathare was or was not entitled to occupy the premises by April 8, 1977.
The trial judge found it common ground that Mathare, with his contractor, completed the main building and occupied it by April 8, 1977, but made no finding on his entitlement to do so. Without such a finding, the appellant's first ground of appeal could not succeed on appeal.
Whether the vendor could complain of non-payment of the balance after refusing to complete
The vendor, having pulled out of the agreement and refused clear title or acceptance of the balance, could not impugn the purchaser's failure to pay the disputed balance; the dispute as to the exact balance was one for a simple account.
Applying the reasoning in Rightside Properties v Gray, a vendor who has made performance futile cannot huff the purchaser for failing to carry out a useless exercise. The Mbithis could not and would not give clear title or accept any part of the balance after March 26, 1977, so the remaining grounds of appeal lacked merit.
Whether the adjourned crossclaims for damages were before the appellate court
Because the trial judge expressly adjourned the crossclaims for damages to a future hearing, there was nothing to appeal from on those issues.
The trial judge's judgment expressly adjourned consideration of damages under prayer (e) of the plaint and prayer 9(a) of the counterclaim. Liability and quantum therefore remained to be determined in the High Court, and the parties were at liberty to return there on all the issues in the crossclaims for damages.
Legal principles established
#- A purchaser who has paid the balance of the purchase price into court is entitled to vacant possession, and a vendor who has made completion impossible cannot rely on the purchaser's failure to perform a futile act.
Court orders
#- 1.The appeal is dismissed with costs
- 2.The judgment and orders of the High Court are upheld
- 3.The parties are at liberty to return to the High Court on all the issues in the crossclaims for damages
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya at Nairobi
- Civil Case 1356 of 1977
- Jurisdiction invoked
- First appeal to the Court of Appeal from the judgment of the High Court
Relief refused
#Declaration that Mbithi was entitled to vacant possession
The appellant was not entitled to vacant possession at the time of filing the suit and no longer wished to re-enter the premises
Dismissal of Mathare's counterclaim with costs
Mathare was entitled to his order for vacant possession against the Mbithis and the High Court orders stood
Appeal against the adjourned crossclaims for damages
The crossclaims for damages were expressly adjourned by the trial judge, so there was nothing to appeal from on those issues
Costs
The appeal is dismissed with costs
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.
In short, then, the judgment and orders of the High Court should be upheld and the appeal dismissed with costs.
As Gachuhi, Ag J A agrees, the order of the court is that the appeal is dismissed with costs.
This is the morality of a game, not of a serious legal contest.
all along the Mbithis could not, would not give clear title or accept the balance or any part of the balance after March 26, 1977 when Mbithi decided to 'pull out of the agreement'
because the crossclaims for damages have been expressly adjourned for another day by Mr. Justice cockar there was nothing to appeal from on those issues
Issues in the judgment
#The coram is unclear: only Kneller JA's judgment is signed, and Gachuhi Ag JA's concurrence is recorded only within the body of that judgment.
The judgment inconsistently records the date of payment into court as August 12, 1977 in the summary of the defence and August 24, 1977 elsewhere.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "JULIUS COSMAS MBITHI v JOHN WALLACE MATHARE [1986] KECA 13 (KLR)", Case Analysis (1986). Civil Appeal 23 of 1983. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1986/13/eng@1986-04-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.