Kihia v Caroll (Civil Appeal 96 of 2016) [2020] KECA 496 (KLR)
The bottom line
#A landowner who appoints an agent, delays signing, and skips raising issues at trial cannot later cancel the sale—the Court of Appeal ordered him to complete it.
What this practically means
#Executive summary
#Key legal issues
#Authority of the agent to receive the purchase price
The appellant appointed Muigai as his agent to find a buyer and receive the purchase price; the agreements designated Muigai as stakeholder, and the appellant is estopped from denying that authority.
The sale agreements expressly provided that all payments be deposited with Muigai as stakeholders, a term unaltered by the supplementary agreement. The appellant's appointment letter and irrevocable authority, plus correspondence forwarding the bankers' cheque, affirmed Muigai's status. The learned Judge rightly held the appellant estopped from denying the agency; any grievance lies against the agents, not the respondent.
Whether time was of the essence
Although time was initially of the essence, the appellant's own conduct in delaying execution of the agreements for over three months rendered time not of the essence, invalidating his purported repudiation.
Time is made of the essence by express provisions and the parties' conduct. The respondent made two payments before the initial completion date, while the appellant delayed execution until 30th October 2003. Having himself failed to fulfil his obligations, including giving vacant possession, the appellant could not repudiate for delay by the respondent.
Raising the Section 3(3) Law of Contract Act witnessing issue on appeal
The issue of witnessing of the agreement was not raised in the amended defence and counterclaim and therefore could not be advanced on appeal.
The Court perused the amended defence and counterclaim and found the appellant had not raised the witnessing issue at trial. Parties are bound by their pleadings, and issues not canvassed at trial cannot be introduced at the appellate stage, so the argument was declined.
Entitlement to specific performance
Specific performance was properly granted because the respondent proved a valid and enforceable contract and that he performed and was always ready and willing to perform his obligations.
Specific performance requires a valid, enforceable contract. The respondent paid the purchase price into the designated stakeholder, while the appellant was himself in breach. Following Sisto Wambugu v Kamau Njuguna, a party who has performed and remains ready and willing is deserving of the order, and the learned Judge properly directed himself.
Legal principles established
#- A first appellate court must reconsider and re-evaluate the evidence and reach its own independent conclusions.
- Specific performance can only be granted where there exists a valid and enforceable contract, being an equitable relief granted where damages would be insufficient.
- Parties are bound by their pleadings; issues not raised at trial cannot be advanced for the first time on appeal.
- Where time has not been made of the essence of the contract, one party cannot suddenly cancel the agreement and forfeit the deposit without notice.
- A principal cannot complain of the actions of his own duly appointed agent; his remedy lies against the agent.
Court orders
#- 1.The appeal is dismissed with costs to the respondent
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- First appeal to the Court of Appeal under the appellate jurisdiction of the Court over the High Court (the judgment does not cite a specific provision)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kihia v Caroll (Civil Appeal 96 of 2016) [2020] KECA 496 (KLR)", Case Analysis (2020). Civil Appeal (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/496/eng@2020-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.