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Court of AppealDismissedCivil Appeal No. 157 of 2012· [2017] KECA 484 (KLR)

Solomon Kim Kariuki v Rose Polyne Nyambura [2017] KECA 484 (KLR)

Court of Appeal of Kenya
21 June 2017
RNR. N. NambuyeHOH. M. OkwenguPKP. O. Kiage
2,435 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed a buyer who pays a third party to protect her land title cannot be sued for the same money by a seller who defaulted.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal (Nambuye, Okwengu and Kiage, JJ.A) against the dismissal by Maraga, J of the appellant vendor's suit claiming Kshs. 1,110,000 as the balance of the purchase price for parcel L.R. 13287/13, a 10% penalty for breach, and in the alternative cancellation of the respondent purchaser's title. The respondent counterclaimed but did not cross-appeal after her counterclaim was dismissed. The Court, applying the settled first-appeal approach in Selle v Associated Motor Boat Co Ltd, re-evaluated the evidence. It found that clause 11 of the sale agreement obliged the vendor to sort out any claim by the Agricultural Development Corporation, which held outstanding consideration of Kshs. 1,112,400 for the 1983 allocation and threatened cancellation or caveat over the title. The appellant, in clear breach, refused to pay; the respondent, on her advocate's advice, paid ADC during the pendency of the suit to protect her title. The Court held the appellant could not use the court process to recover from the respondent the very sum he was obliged to pay ADC, describing his claim as an attempt to burden her doubly and evade his obligation. The purchaser's own breaches (transferring before full payment and irregularly obtaining consent) did not go to the root of the contract and caused the vendor no injury at law, since he accepted part of the balance in April 2007. The claim that the judge rewrote the contract was rejected: dismissal gave effect to the parties' true and express intentions. The appeal was dismissed with costs, affirming the High Court judgment.

Key legal issues

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01

Whether payment of the balance of the purchase price to ADC by the purchaser discharged her obligation to the vendor

Holding

Yes. Clause 11 obliged the vendor to settle any claim by ADC; his failure to do so imperilled the purchaser's title, and her payment to ADC on the advocate's advice discharged the debt for which the vendor then sued her.

Reasoning

The agreement expressly required the vendor to sort out any ADC claim. The vendor had never paid the 1983 allocation consideration, and ADC demanded Kshs. 1,112,400 threatening cancellation of title. His breach forced the respondent to pay ADC to protect her title. His suit for the same sum sought to burden her doubly and evade his own obligation; no court of conscience could aid such a scheme.

p. 4
02

Whether the purchaser's breach in effecting transfer before full payment, and the irregularity in obtaining consent, warranted rescission

Holding

No. Those breaches did not go to the root of the contract and caused the appellant no injury at law, since he accepted part of the balance as late as April 2007.

Reasoning

The court held that the vendor's acceptance of part of the balance of the purchase price in April 2007 showed he did not treat the breach as repudiatory. The breaches and irregularities caused him no injury at law, so rescission and damages were not available and the dismissal of the suit was proper.

p. 4
03

Whether the trial judge rewrote the contract between the parties

Holding

No. Dismissing the suit gave effect to the parties' true and express intentions as embodied in clause 11 of the agreement.

Reasoning

Counsel for the appellant, relying on National Bank of Kenya v Pipeplastic Samkolit, argued the judge rewrote the contract. The Court rejected this, holding that enforcing clause 11 according to its plain terms was not rewriting but giving effect to the parties' express intentions.

p. 4

Legal principles established

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  • On a first appeal, the Court of Appeal proceeds by way of re-hearing, re-evaluating the whole evidence and drawing its own conclusions, while making allowance for not having seen or heard the witnesses.
  • A party who is himself in breach of a contractual obligation to a third party cannot use the court process to recover the same sum from a co-contracting party where payment by that party discharged the obligation.

Court orders

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  1. 1.The appeal is dismissed with costs to the respondent
  2. 2.The judgment and decree of the High Court (Maraga, J.) dismissing the appellant's suit is affirmed

Authorities

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Cases cited (2)

  • National Bank of Kenya vs. Pipeplastic Samkolit (K) Ltd & Anor
    [2001] eKLR
  • Selle vs. Associated Motor Boat Co. Ltd
    [1968] EA 123
On appeal from
High Court of Kenya at Nakuru
H.C.C.C. No. 136 of 2007
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (first appeal by way of re-hearing)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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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, "Solomon Kim Kariuki v Rose Polyne Nyambura [2017] KECA 484 (KLR)", Case Analysis (2017). Civil Appeal No. 157 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/484/eng@2017-06-21

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