Nagilah & 2 others v Gitau & another (Environment & Land Case 223 of 2013) [2022] KEELC 3221 (KLR)
The bottom line
#A Kenyan court enforced a land sale for a buyer who paid in full, but refused the same relief to a buyer who paid late and incompletely.
What this practically means
#Executive summary
#Key legal issues
#Privity of contract and the 1st plaintiff's standing to sue
Although there was no privity of contract between the 1st plaintiff and the defendants, the 1st plaintiff validly sued by virtue of the collateral agreement under which Odda Auma Makanga purchased plot No. 6 for his benefit, a known exception to the doctrine of privity
The sale agreements named Odda Auma Makanga, not the 1st plaintiff, as purchaser. However, evidence showed a collateral agreement under which she purchased plot No. 6 on the 1st plaintiff's behalf using his funds. The 1st defendant knew of this, having issued a receipt in the 1st plaintiff's name and conceding that the 1st plaintiff had paid in full and that his plot was available. Citing Savings & Loan (K) Ltd v Gakombe, the court held that a collateral agreement is an exception to privity, so the 1st plaintiff could maintain the suit.
Validity of the sale agreements under Section 3(3) of the Law of Contract Act and Section 38(1) of the Land Act
The agreements were valid: they were in writing, signed by all parties and attested by witnesses present at execution; in any event the Land Act 2012 did not apply to contracts made before its commencement
The defendants contended the agreements were invalid under Section 3(3) of the Law of Contract Act and Section 38(1) of the Land Act 2012. The court noted the proviso in Section 38(2) excluding pre-commencement agreements, the 2007 agreements predating the 2012 Act. Applying Section 3(3), both agreements were in writing, signed by all parties, and their signatures attested by witnesses present at execution, satisfying the statutory formalities. The agreements were therefore held valid.
Breach of contract
The 2nd plaintiff was in breach for failing to pay the purchase price within 90 days (paying the last instalment over three years late and still owing KShs 40,000); the 1st plaintiff was not in breach as the defendant conceded full payment
The agreements required payment of the purchase price within 90 days. The 2nd plaintiff conceded he did not pay within that period and still owed KShs 40,000; his last payment was on 22nd March 2010, over three years after the agreement. By contrast, the 1st defendant acknowledged the 1st plaintiff had paid the full purchase price, and the defendants led no evidence of any breach on his part regarding payment obligations.
Entitlement to specific performance
The 1st plaintiff, having discharged his obligations, was granted specific performance; the 2nd plaintiff, in breach, was denied it and instead got a refund of KShs 310,000 less 10% liquidated damages
Applying the principles in Gurdev Singh Birdi, a plaintiff seeking specific performance must have performed his essential obligations. The 1st plaintiff had paid in full, and the defendant confirmed the plot (now Nakuru Municipality Block 15/991) was available, so specific performance issued, with the 1st plaintiff bearing registration fees and stamp duty per clause 5. The 2nd plaintiff's breach barred the equitable remedy; instead, per the counterclaim and clause 8, he was awarded a refund of KShs 310,000 less 10% liquidated damages, i.e. KShs 279,000.
Legal principles established
#- A contract for the disposition of an interest in land must be in writing, signed by all parties and attested by a witness to be enforceable under Section 3(3) of the Law of Contract Act; agreements made before commencement of the Land Act 2012 are governed by the earlier provision
- Existence of a collateral agreement is an exception to the doctrine of privity of contract, permitting a third-party beneficiary to sue
- A plaintiff seeking specific performance must have performed all his essential obligations under the contract; a purchaser in breach by non-payment of the purchase price cannot obtain the remedy
Court orders
#- 1.An order of specific performance compelling the first defendant to complete the execution and registration of the proposed subdivision plan in title No. Nakuru Municipality Block 15/956 and to transfer plot number 6 (now Nakuru Municipality Block 15/991) to the first plaintiff
- 2.Judgment entered in favour of the second plaintiff and against the first defendant for KShs 279,000 (refund of KShs 310,000 less 10% liquidated damages)
- 3.No order on costs
- Jurisdiction invoked
- Original civil jurisdiction over the land dispute (suit by plaint under the Civil Procedure Act); no specific constitutional provision cited
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Njoroge (Suing as the Administrator of the Estate of Wangui Njoroge - Deceased) v Ticha (Environment & Land Case 68 of 2021) [2025] KEELC 3649 (KLR)[2025] KEELC 3649 (KLR)9 May 2025applied
Cite this brief
#Cite this brief
Caselaw, "Nagilah & 2 others v Gitau & another (Environment & Land Case 223 of 2013) [2022] KEELC 3221 (KLR)", Case Analysis (2022). Not stated in the judgment (commenced by plaint dated 1st March 2013, amended plaint dated 28th May 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3221/eng@2022-05-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.