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Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal No 23 of 1983

Mbithi v Mathare [1986] KECA 17 (KLR)

Court of Appeal
7 April 1986
6,478 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This was an appeal by Julius Cosmas Mbithi against part of the judgment of Cockar J in the High Court in a dispute over the sale of a freehold plot at Hardy Estate, Langata, Nairobi. The Mbithis sued to rescind the 1976 sale agreement to Mathare and recover possession; the trial judge held the contract was not validly rescinded, refused an injunction and a declaration of illegal occupation, ordered the Mbithis to vacate, and adjourned the cross-claims for damages by consent. Mbithi alone appealed on grounds relating to Mathare's entry into possession on April 8, 1977, the quantum of the balance of the purchase price, and entitlement to vacant possession from August 24, 1977. Kneller JA, with Gachuhi Ag JA agreeing, dismissed the appeal, holding that the trial judge made no finding on entitlement to possession, that the balance point was a matter for a simple account and was otherwise futile since the Mbithis refused to accept payment after purported rescission, and that there was nothing to appeal from on the expressly adjourned damages issues. Gachuhi Ag JA regarded the appeal as premature because damages had been reserved for a later hearing. Platt Ag JA dissented in part: he would have allowed the appeal only to the extent of setting aside the findings bearing on damages, leaving the order for vacant possession standing, so that both liability and quantum could be litigated in the High Court. The order of the court was that the appeal is dismissed with costs, the High Court judgment upheld, with liberty to return to the High Court on the cross-claims for damages. The decision binds subordinate courts on the principles that no appeal lies on issues expressly reserved and that a party cannot prevent completion then rely on the other's default.

Key legal issues

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01

Entitlement to possession before payment of the balance

Holding

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.

Reasoning

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.

p. 4
02

The balance of the purchase price

Holding

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.

Reasoning

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.

p. 5
03

Prematurity of appeal where damages are reserved

Holding

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.

Reasoning

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.

p. 10
04

Whether findings bearing on damages should be set aside (Platt Ag JA, dissenting)

Holding

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.

Reasoning

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.

p. 10

Legal principles established

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  • 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

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  1. 1.Appeal dismissed with costs
  2. 2.Judgment and orders of the High Court upheld
  3. 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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.