Stephen Gitau Njoroge v George Ngure Kariuki [2022] KEELC 1689 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Appellant was entitled to specific performance of the agreement for sale of plot L.R. No. 12715/2707
No. The Appellant failed to prove payment of the full purchase price and was in breach of clause 4 of the second agreement; he had no clean hands and was not entitled to the equitable remedy.
The court found that although the Appellant paid Kshs 100,000/= for the suit plot, he failed to transfer shares in Clauste Motors Limited as consideration under clause 4 of the second agreement and failed to pay stamp duty, registration and transfer fees as he had undertaken. No deed of variation or addendum supported his claim that repair costs were converted into purchase price. His actions amounted to misrepresentation and he lacked clean hands, disentitling him to specific performance.
Whether the trial magistrate considered the evidence and erred in his findings
The trial magistrate did not err; his findings that the purchase was not a separate concluded transaction and that the purchase price was not fully settled were correct.
The court on reassessment found the trial magistrate properly considered the evidence of both parties, correctly declined to find a separate concluded transaction for the third plot, correctly found no common linkage regarding payment for services, and was right that the purchase price for the suit plot was not fully settled. The court held a trial court cannot rewrite the parties' contract.
Legal principles established
#- The underlying principle in granting specific performance is that the plaintiff must show performance of all terms he undertook to perform.
- Specific performance is a discretionary equitable remedy granted on settled principles and will not be ordered where the contract is defective or there is an adequate alternative remedy.
- A party who stands by and lets another incur expense on the faith of an agreement cannot later assert it is unenforceable.
Court orders
#- 1.The appeal is dismissed with costs.
- 2.The Judgement of Hon. A G Kibiru Chief Magistrate delivered on 20 November 2018 is upheld (refund of Kshs 44,774/= with interest at 12% from date of filing suit till payment in full; each party to bear his own costs of the suit).
- On appeal from
- Chief Magistrates' Court at Machakos
- Machakos CMCC No. 874 of 2015
- Jurisdiction invoked
- First appellate jurisdiction of the Environment and Land Court over appeals from the Chief Magistrates' Court (Memorandum of Appeal dated 30 November 2018)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stephen Gitau Njoroge v George Ngure Kariuki [2022] KEELC 1689 (KLR)", Case Analysis (2022). E.L.C Appeal No. 71 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1689/eng@2022-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.