Bartholomew Mwanyungu & others v Florence Dean Karimi [2018] KEELC 3299 (KLR)

The court examined the plaint and reliefs sought, including an order for execution of transfer documents by the Executive Officer. Though couched as declaratory, the relief required performance of the deceased vendor's obligations to complete the contract. Section 4 of the Limitation of Actions Act applies to contract actions, so the right to specific performance was extinguished by 1992. The magistrate erred in failing to discern the true nature of the action.

Section 8 of the Land Control Act requires an application for consent within six months of making the agreement, meaning parties contract first then apply for consent. Here both consents were dated 30th January 1986, over a month before the 6th March 1986 agreement. The court found it curious that consent to sell preceded the agreement and doubted its validity, especially since transfer was never executed for 10 years despite full payment.

The court held that the learned magistrate's finding that the respondent was entitled to the land rather than a refund was legally wrong. Section 7 permits recovery of money paid as a debt without more. Additionally, the sale agreement itself expressly provided for refund of the purchase price and compensation for developments if no transfer occurred, and that remedy was available to the respondent to pursue.

Order 4 Rule 4 of the Civil Procedure Rules requires that where a defendant is sued in a representative capacity, the plaint must state the capacity and how it arises. The plaint did not plead such capacity. The orders sought would have transferred part of a deceased person's estate without an action against the estate. The respondent was therefore non-suited against the grandchildren of the deceased vendor.