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ELCPartially AllowedKisii ELC Case (number not stated in judgment)· [2021] KEELC 2265 (KLR)

Mary Akwam Nyantine v Florence Nyaronge & another [2021] KEELC 2265 (KLR)

Environment and Land Court
28 July 2021
JOJ.M. Onyango
2,109 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A land buyer who didn't pay the full purchase price won a refund but lost the land itself.

What this practically means

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Executive summary

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The Plaintiff sued the widow and son of the late Henry Mokua Gisege, claiming he had entered into a land sale agreement with the deceased on 8th March 2008 for a 25 by 100 feet portion of parcel WANJARE/NYAMBUNYWA/124 at Kshs. 380,000. He paid a deposit of Kshs. 200,000 and, after the deceased's death, a further Kshs. 40,000 towards funeral expenses, agreed to count as part of the purchase price, leaving Kshs. 140,000 outstanding. He sought specific performance compelling transfer of the land, or alternatively a refund of Kshs. 240,000 with interest from November 2008. The Defendants denied knowledge of the sale during the deceased's lifetime, and the 2nd Defendant questioned the authenticity of the agreement owing to an alteration of the parcel number. The original plaintiff died during the hearing and was substituted by his widow as administrator of his estate. The court framed two issues: validity of the sale agreement and entitlement to specific performance. It found a valid agreement existed, corroborated by the deceased's widow PW2 and brother PW3, and that the alteration of the parcel number did not vitiate it. However, applying Thrift Homes Limited v Kenya Investment Limited and Gurdev Singh Birdi, the court held that specific performance is discretionary and requires the plaintiff to have performed his own obligations. As the purchase price was not paid in full and the Plaintiff showed no willingness to pay the balance 13 years later, specific performance was refused as unjust, inequitable and unconscionable given the property's appreciation in value. Judgment was entered on the alternative prayer: refund of Kshs. 240,000 with interest at court rates from the date of filing suit until payment in full, with the Defendants bearing the costs of the suit.

Key legal issues

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01

Whether a valid sale agreement existed between the Plaintiff and the deceased over parcel WANJARE/NYAMBUNYWA/124

Holding

Yes, a valid sale agreement existed; the alteration in the parcel number did not invalidate it since both parties were aware of the parcel in dispute

Reasoning

The Plaintiff produced a signed copy of the sale agreement. Although there appeared to be some alteration in the parcel number, the court found the parties were aware of the land parcel in dispute. The agreed purchase price of Kshs. 380,000 was indicated, and witnesses including the deceased's widow and brother corroborated the sale and the payments made.

p. 2
02

Whether the Plaintiff was entitled to specific performance

Holding

No; specific performance was refused because the Plaintiff had not paid the full purchase price and had not shown willingness to pay the balance

Reasoning

The court applied the equitable principles in Thrift Homes and Gurdev Singh Birdi, holding that a plaintiff seeking specific performance must show readiness and willingness to perform his own obligations. The Plaintiff left a balance of Kshs. 140,000 unpaid for 13 years and never indicated willingness to pay it, making specific performance unjust and inequitable given the property's appreciation in value.

p. 3

Legal principles established

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  • Specific performance is a discretionary equitable remedy granted only where a valid enforceable contract exists and the plaintiff has performed or is ready and willing to perform all terms he undertook to perform
  • A plaintiff seeking specific performance must demonstrate that he performed all the terms of the contract which he undertook to perform, including payment of the balance of the purchase price
  • It is unconscionable for a vendor's estate to retain both the part payment of the purchase price and the suit property

Court orders

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  1. 1.Judgment entered for the Plaintiff on the alternative prayer for refund
  2. 2.Refund of Kshs. 240,000 being the purchase price in respect of land parcel number WNAJARE/NYAMBUNWA/124 together with interest at court rates from the date of filing suit until payment in full
  3. 3.The Defendants shall bear the costs of this suit

Authorities

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Cases cited (2)

  • Thrift Homes Limited v Kenya Investment Limited
    (2015) eKLR
  • Gurdev Singh Birdi and Marinder Singh Ghatora v Abubakar Madhbuti
    Civil Appeal No.165 of 1996
Jurisdiction invoked
Not expressly stated; Environment and Land Court jurisdiction over land disputes

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mary Akwam Nyantine v Florence Nyaronge & another [2021] KEELC 2265 (KLR)", Case Analysis (2021). Kisii ELC Case (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2265/eng@2021-07-28

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