Shaffique Alibhai v Karim Jamal [2018] KECA 823 (KLR)

Court of Appeal of Kenya

16 February 2018

PKP. O. Kiage SKS. Gatembu Kairu KMK. M'inoti

3,550 words in judgment

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The bottom line

Kenya's Court of Appeal confirmed a land buyer who was sold property the seller couldn't lawfully transfer gets his full money back, plus costs.

What this practically means

Executive summary

The Court of Appeal at Nairobi (Kiage, Gatembu Kairu and M'inoti, JJ.A) dismissed this first appeal against a High Court judgment (Azangalala, J) awarding the respondent Kshs. 5,000,000.00, interest and costs as a refund of the purchase price under an agreement for sale of one acre of L.R. No. 21288, Nairobi. The trial judge had found the appellant induced the respondent into the agreement by representations that were untrue, that he had not perfected his title and could not comply with the agreement, and that the respondent was entitled to repudiate and claim a refund; the claim for damages for fraud and the appellant's counterclaim for Kshs. 2,400,000.00 were rejected. On appeal, the Court reiterated the settled principles governing a first appeal - the Court must reconsider and evaluate the evidence itself but will not disturb findings of fact not based on evidence, founded on a misapprehension of the evidence, or reached on wrong principles. The Court upheld the trial judge's findings on both issues: first, that although the appellant did not expressly represent that he held the leasehold, he represented he could transfer the property when he could not, and his response to the respondent's request for title ('to do what he liked') evinced an intention not to be bound, amounting to a repudiatory breach which the respondent validly accepted by letter dated 21st May 1998. Second, documentary evidence including cheques, an acknowledgement letter, advocates' correspondence and settlement minutes established payment of the purchase price. The appeal was accordingly dismissed with costs to the respondent.

Key legal issues

Whether the respondent was justified in repudiating the agreement for sale on the basis of misrepresentations and the appellant's lack of capacity to transfer

Holding

Yes. Although the appellant did not expressly represent that he held the lease, he represented that he would be in a position to transfer the property when he was not, and his conduct evinced an intention not to be bound, amounting to a repudiatory breach which the respondent was entitled to accept.

Reasoning

The Court accepted the trial judge's finding that the appellant had not perfected his title and could not comply with the agreement's terms. The completion date was tied to a Deed Plan whose procurement was the appellant's obligation, yet the appellant told the respondent to 'do what he liked' when asked for the title. That refusal to perform evinced an intention no longer to be bound, constituting a repudiatory breach which the respondent validly elected to accept by his advocates' letter of 21st May 1998.

p. 4

Whether the respondent established payment of the purchase price of Kshs. 5,000,000.00 and entitlement to a refund

Holding

Yes. Documentary evidence including cheques, an acknowledgement letter, advocates' correspondence and minutes of a meeting in which the appellant agreed to pay Kshs. 6 million in settlement supported the trial judge's finding that the appellant admitted receiving the purchase price.

Reasoning

The respondent produced cheques totalling Kshs. 2,550,000.00, a 1996 letter in which the appellant acknowledged receipt of Kshs. 1 million as purchase price, and correspondence in which the appellant's advocates acknowledged the money was paid directly to him. Minutes of a meeting during the suit in which the appellant agreed to pay Kshs. 6 million in settlement further corroborated payment. The Court held reliance on these admissions did not amount to impermissible variation of the written agreement.

p. 4

Legal principles established

On a first appeal, the Court of Appeal is obliged to review and analyse the evidence and draw its own conclusions, but will not interfere with the trial judge's findings of fact unless they are not based on evidence, are based on a misapprehension of the evidence, or the judge acted on wrong principles
A vendor who represents that he will be in a position to transfer property when he is not in a position to do so, and who evinces an intention no longer to be bound to perform his obligations, commits a repudiatory breach entitling the purchaser to treat the agreement as at an end and demand a refund

Court orders

1.The appeal is dismissed with costs to the respondent

Authorities

Cases cited (3)

Selle and another versus Associated Motor Boat Company Limited & 2 others
[1968] EA 123
Woodar Investment Development Ltd vs. Wimpey Construction UK Ltd
[1980] 1 All ER 571
Howe and another vs. Smith
[1881-5] All E.R 201

On appeal from: High Court of Kenya at Nairobi; H.C.C.C. No. 295 of 2000
Jurisdiction invoked: First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction over High Court decisions

Key timeline

Practical implications

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Later judgments citing this (1)

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Green Africa International Limited v Rwengo & 6 others (Environment and Land Case E038 of 2025) [2026] KEELC 2761 (KLR)
[2026] KEELC 2761 (KLR)29 Apr 2026applied

Cite this brief

Caselaw, "Shaffique Alibhai v Karim Jamal [2018] KECA 823 (KLR)", Case Analysis (2018). Civil Appeal Number 130 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/823/eng@2018-02-16

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