Mbithi v Mathare [1986] KECA 17 (KLR)
The bottom line
#The Court of Appeal ruled that a seller who blocks a property sale cannot then punish the buyer for failing to complete it.
What this practically means
#Executive summary
#Key legal issues
#Entitlement to possession before payment of the balance
The trial judge made no finding that Mathare was or was not entitled to enter possession on April 8, 1977, so the first ground of appeal failed.
Kneller JA noted the trial judge found it common ground that Mathare 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 could not succeed. The court could not disturb a decision the trial judge never made.
The balance of the purchase price
Any dispute over the correct balance was a matter for a simple account; the Mbithis could not accept the balance after their rescission letter of March 26, 1977, so no merit arose in the point.
The appellant argued the balance exceeded Kshs 144,087.50. Kneller JA held this was a matter for a simple account to be taken and that, in any event, after Mbithi decided to pull out of the agreement the Mbithis would not give clear title or accept the balance or any part of it, defeating the point.
Prematurity of appeal where damages are reserved
Gachuhi Ag JA held the appeal was premature because the damages issue was reserved for evidence and argument at a later date and it was unclear whether liability or quantum was reserved.
The trial judge reserved the damages issues to himself by consent. Since the only issue dealt with on the pleadings was the validity of the agreement of sale, the appellant should have waited for findings on damages before appealing; it was otiose to argue points on which no specific finding was made.
Whether findings bearing on damages should be set aside (Platt Ag JA, dissenting)
Platt Ag JA would have allowed the appeal to the limited extent of setting aside the findings relating to damages, so liability and quantum could be litigated afresh, while leaving the order for vacant possession standing.
Because the consent agreement reserving damages was unclear whether it covered liability as well as quantum, Platt Ag JA took the view it was wide enough for both. The best course was to allow the parties to adduce all relevant evidence and arguments on damages in the High Court, even if some grounds were revisited, so the dispute could be decided once and for all.
Legal principles established
#- A party who prevents completion of a contract cannot then rely on the other party's failure to complete to found a claim - the court adopted Walton J's reasoning in Rightside Properties v Gray as applied in Thomas Joseph Openda v Peter Martin Ahn
- Where a trial judge has expressly reserved an issue (damages) for a future hearing, there is nothing to appeal from on that issue
Court orders
#- 1.Appeal dismissed with costs
- 2.Judgment and orders of the High Court upheld
- 3.Parties at liberty to return to the High Court on all the issues in the cross-claims for damages
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- First appeal to the Court of Appeal under Kenyan appellate jurisdiction over High Court civil decisions
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbithi v Mathare [1986] KECA 17 (KLR)", Case Analysis (1986). Civil Appeal No 23 of 1983. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1986/17/eng@1986-04-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.