Joseph Gichuhi Kamau & another v Salome Wacheke Kanyingi [2021] KECA 981 (KLR)
The bottom line
#The Court of Appeal refused to force a land sale because the buyers hadn't paid the full price, confirming buyers must perform before demanding the property.
What this practically means
#Executive summary
#Key legal issues
#Entitlement to specific performance
Specific performance was properly refused because the appellants had not paid the whole purchase price and did not come to equity with clean hands; the remedy is discretionary
The 1st appellant admitted he had not paid the balance of Ksh.80,000 of the purchase price, and the 2nd appellant proved payment of only Ksh.20,000 against a price of Ksh.150,000. The court invoked Chitty on Contract on the need for a valid enforceable contract and the clean-hands doctrine from John Njue Nyaga, noting specific performance is a discretionary remedy which may be refused though the contract is binding. A claimant seeking this equitable relief must itself have performed or tendered performance.
Proof of special damages
The trial Judge was right to award only the sums proved as paid, since special damages must be specifically pleaded and proved
Both appellants claimed special damages exceeding the purchase prices, yet the 1st appellant admitted his claimed expenses were not agreed with the respondent and no receipts were produced, while the 2nd appellant proved only Ksh.20,000 by bankers' cheque. Applying the principle in Moses Onchiri v Kenya Ports Authority that special damages must be specifically pleaded and proved, the court held the refunds actually ordered by the ELC were correct and justified.
Reliance on struck-out defences
The trial Judge did not consider the defences that had been struck out; he relied only on the evidence produced by the appellants
The appellants' ground that the Judge relied on pleadings struck out during proceedings was examined against the record. The court, having perused the judgment appealed from, found no reliance on the struck-out defences: the judgment was founded solely on the evidence and documents produced by the appellants themselves. That ground therefore failed.
Legal principles established
#- Specific performance is a discretionary equitable remedy that may be refused despite a binding contract, and a claimant must come to equity with clean hands
- Special damages must be both specifically pleaded and specifically proved at trial before they can be awarded
- A first appellate court must re-appraise the evidence and draw its own inferences of fact while giving due weight to the trial judge's advantage of seeing and hearing witnesses
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.Each party to meet their own costs of the appeal
- On appeal from
- Environment and Land Court at Nairobi
- ELC Misc. Application No. 152 & 153 of 2013
- Jurisdiction invoked
- First appeal to the Court of Appeal under rule 29 of the Court of Appeal Rules ( appellate re-appraisal of evidence)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Gichuhi Kamau & another v Salome Wacheke Kanyingi [2021] KECA 981 (KLR)", Case Analysis (2021). Civil Appeal No. 199 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/981/eng@2021-02-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.