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Court of AppealPartially AllowedCivil Appeal No. 208 of 2018· [2020] KECA 536 (KLR)

Christine Nyanchama Oanda v Catholic Diocese of Homa Bay Registered Trustees [2020] KECA 536 (KLR)

Court of Appeal
10 July 2020
WKW. KaranjaASAsike-MakhandiaFSF. Sichale
6,524 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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A Kenyan land buyer who failed to pay the purchase price on time lost the property, despite having built a mansion on it, and must pay trespass damages.

What this practically means

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Executive summary

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This is a first appeal from the Environment & Land Court at Nairobi (K. Bor, J) arising from a failed agreement for the sale of LR No. 12778/260 Langata for Kshs. 3,000,000. The appellant, a cash purchaser who took vacant possession and built a mansion, contended that the balance was payable only after registration of transfer, that time was not of the essence, and that she had reduced the balance by Kshs. 1,250,000 spent on sub-division and titling of the respondent's other plots. The Court of Appeal, re-evaluating the evidence as a first appellate court, disbelieved the appellant and her surveyor witness, upheld the trial court's finding that the balance was Kshs. 2,587,589, and held that over eight months' delay justified a 21-day completion notice which made time of the essence. Having failed to pay within the notice, the appellant breached the agreement, entitling the respondent to rescind. Specific performance was refused because the appellant had not performed or shown readiness and willingness to perform. On the cross-appeal, the Court held the trial judge had become functus officio and could not, under Section 99 of the Civil Procedure Act, suo motu exclude damages for trespass, an amendment that was substantive rather than clerical. Since trespass is actionable per se but no evidence of the post-trespass value of the land was adduced, the Court awarded the respondent nominal general damages of Kshs. 500,000 plus interest, noting that mesne profits and damages for trespass cannot both be awarded. The appeal was dismissed, the cross-appeal allowed, and the respondent awarded the costs of both.

Key legal issues

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01

Whether the appellant breached the agreement for sale and whether the respondent was entitled to rescind it

Holding

The appellant breached the agreement by failing to pay the balance of the purchase price, failing to forward transfer documents for over eight months, and developing the property while a licensee; the 21-day completion notice made time of the essence and, upon its expiry, the respondent was entitled to rescind.

Reasoning

The agreement contained no completion date, so the Law Society Conditions of Sale applied (42 days). The appellant delayed over eight months in forwarding the transfer and never paid the balance or challenged the amount demanded. Under Condition 4(7) a completion notice fixes 21 days and makes time of the essence. The appellant's continued occupation was as licensee, and upon rescission she had no right to remain or develop the property.

p. 4
02

Whether the balance of the purchase price was payable before or after registration of the transfer

Holding

The balance was payable upon completion; registration could only occur upon the purchaser's undertaking to remit the balance immediately upon registration, which the appellant neither gave nor did.

Reasoning

The court rejected the appellant's reading of Clause 8. The appellant never disputed the demanded balance of Kshs. 2,587,589, never explained the delay, and her deposit of Kshs. 1,296,589 in court was not the full balance. The trial court's finding on the balance was upheld, and the claim of payments of Kshs. 1,250,000 through Mr. Osero was disbelieved.

p. 4
03

Whether the trial judge could revisit her judgment in chambers and exclude damages for trespass under Section 99 of the Civil Procedure Act

Holding

The trial court had become functus officio; the amendment was not a clerical or arithmetical correction but a substantive alteration amounting to setting aside part of the judgment, which the court had no jurisdiction to do, effectively sitting on appeal against its own decision.

Reasoning

Section 99 permits correction only of clerical or arithmetical mistakes or errors from accidental slip or omission. The exclusion of damages for trespass was a substantial question affecting the substance of the judgment. Having found the appellant a trespasser, the court should have assessed and awarded damages rather than reverse itself suo motu in chambers without the parties.

p. 5
04

Whether the respondent was entitled to damages for trespass and how they should be assessed

Holding

The respondent was entitled to damages for trespass; as trespass is actionable per se and no evidence of the post-trespass value of the land was adduced, a nominal award of Kshs. 500,000 plus interest was made, and mesne profits and damages for trespass cannot both be awarded.

Reasoning

The appellant built a mansion without consent while aware of the unpaid balance, was notified of the trespass, and her acts altered the use of the property. Since the value after trespass was unproved, nominal damages were appropriate. The respondent having claimed both mesne profits and damages for trespass, only one remedy lies.

p. 6

Legal principles established

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  • On a first appeal, the duty of the first appellate court is to re-evaluate the evidence tendered at trial and come up with its own findings and conclusions, while making due allowance for the fact that it neither saw nor heard the witnesses.
  • A party seeking the equitable remedy of specific performance must show that it has performed all its obligations under the contract or was at all times ready and willing to perform them.
  • Where time is not originally of the essence of a contract for sale of land, the party not in default may make time of the essence by notice fixing a reasonable time for completion, and unreasonable delay may justify such a notice; a delay of six months after the lapse of the completion date constitutes unreasonable delay.
  • Under Condition 4(7) of the Law Society Terms and Conditions of Sale, upon service of a completion notice the transaction must be completed within 21 days and time becomes of the essence.
  • A court may correct only clerical or arithmetical mistakes or errors arising from accidental slip or omission under Section 99 of the Civil Procedure Act; it cannot use that power to vary the substance of its judgment, and a trial court that has delivered judgment becomes functus officio.
  • A claimant cannot recover both mesne profits and damages for trespass for the same occupation; the court may grant only one, as they mean one and the same thing.
  • Trespass to land is actionable per se; where trespass is proved, the claimant need not prove specific damage or loss to be awarded damages, and the court is under a duty to assess the award depending on the unique facts of each case.

Court orders

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  1. 1.The appellant's appeal is dismissed
  2. 2.The respondent's cross-appeal is allowed
  3. 3.The respondent is awarded general damages for trespass in the nominal sum of Kshs. 500,000 plus interest from the date of judgment until payment in full
  4. 4.The respondent shall have the costs of the appeal as well as of the cross-appeal

Authorities

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Legislation

  • Appellate Jurisdiction ActSection 3(2)
  • Civil Procedure ActSection 99

Cases cited (19)

  • Abok James Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates
    (2013) eKLR
  • Kenya Ports Authority v Kusthon (Kenya) Limited
    2000 2EA 212
  • National Bank of Kenya v Pipeplastic Samkolit (K) Ltd & Another
    [2001] eKLR
  • Samuel Ngige Kiarie v Njowamu Construction Company Limited & Ano.
    Civil Appeal No. 61 of 2016
  • David Moses Gekara v Hezron Nyachae
    [2012] eKLR
  • Njamuya v Nyaga
    [1983] KLR 282
  • Gurdev Singh Birdi & Another as Trustees of Ramgharia Institute of Mombasa v Abubakar Madhbuti
    [1997] eKLR
  • Karanja Mbugua & another v Marybin Holding Co. Ltd
    [2014] eKLR
  • Sisto Wambugu v Kamau Njuguna
    [1983] eKLR
  • Kasturi Ltd v Nyeri Wholesalers Ltd
    [2014] eKLR
  • Parminder Singh Sagoo & Ano. v Neville Anthony Dourado & Ano.
    [1983] KLR 365
  • Vallabhdas Karsandas Raniga v Mansukhlal Jivraj and Others
    [1965] EA 780
  • Telkom Kenya Limited v John Ochanda & 996 Others
    [2014] eKLR
  • C.Y.O. Owayo v George Hannington Zephania Aduda t/a Aduda Auctioneers & Ano.
    [2007] 2 KLR 140
  • Peter Mwangi Msuitia & Another v Samow Edin Osman
    [2014] eKLR
  • Inverugie Investment v Hackett
    [1995] 3 ALL ER 842
  • Kenya Hotel Proprietors Ltd v Willesden Investments Ltd
    [2009] KLR 126
  • Park Towers Ltd v John Mithamo Njika & 7 others
    [2014] eKLR
  • Duncan Ndegwa v Kenya Pipeline Limited
    HCC No. 2577 of 1990
On appeal from
Environment & Land Court at Nairobi
ELC Cause No. 440 of 2010
Jurisdiction invoked
First appeal to the Court of Appeal under the Appellate Jurisdiction Act (the judgment invokes Section 3(2) of the Appellate Jurisdiction Act regarding the Court's power to amend judgments)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (12)

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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, "Christine Nyanchama Oanda v Catholic Diocese of Homa Bay Registered Trustees [2020] KECA 536 (KLR)", Case Analysis (2020). Civil Appeal No. 208 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/536/eng@2020-07-10

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