Kihara (Suing as a Legal Representative of Priscilla Wambui Kihara) v Mbagu & another
The bottom line
#A Nairobi court ordered land sellers to complete a 2008 sale after finding that paying the purchase price to a shared lawyer counted as paying the sellers.
What this practically means
#Executive summary
#Key legal issues
#Whether the defendants received the purchase price of Kshs 1,500,000
Payment to the joint advocate was payment to the defendants; the claim that they never received the money fails
The agreement showed the first instalment of Kshs 800,000 was already with the advocate as stakeholder when the defendants signed, so they could not feign ignorance. Relying on Mayfair Holdings Ltd v Ahmed, payment to a joint advocate is in fact and in law payment to the other party. The defendants' evidence on the advocate's death was also internally contradictory.
Who breached the sale agreement dated September 24, 2008
The defendants breached the agreement by failing to complete the transfer
The plaintiff paid the full purchase price within the stipulated 45 days and was granted vacant possession, which was part performance. The defendants never showed the steps they took under clause 6 to avail the completion documents needed to effect the transfer. Their conduct, including demanding more money, amounted to attempting a second sale.
The legal effect of the alleged second agreement of 2015/2016 for Kshs 5,500,000
The undated and unsigned draft agreement is not binding and supports the plaintiff's claim of extortion
The document relied on by the defendants was undated and unsigned, and DW1 conceded the date on it was inaccurate. Following Capacity Building & Research Company Limited, such a document has no legal effect. The court found the defendants were attempting a second bite of the cherry by purporting to sell the land a second time.
Whether the plaintiff was a trespasser and whether damages should be awarded
The trespass allegation fails; no counterclaim was filed and the plaintiff proved her case, but no damages were awarded
The defendants never filed a counterclaim, never sought eviction and never sought to lift the caution despite alleging trespass. Submissions on unapproved construction were not anchored on pleadings or evidence. Since the plaintiff had been in possession since 2009, costs and interest were deemed adequate compensation.
Legal principles established
#- Payment of the purchase price to an advocate acting for both vendor and purchaser constitutes payment to the vendor
- An undated and unsigned agreement is not legally binding
- Evidence must flow from the pleadings; a court can only pronounce judgment on issues arising from the pleadings
Court orders
#- 1.An order for specific performance compelling the defendants to complete the sale agreement by transferring Title Number Nairobi/Block 82/3602 to the plaintiff within 30 days of the order
- 2.If order (i) is not adhered to, the Chief Land Registrar Nairobi is directed to register the land in the name of Priscilla Wambui Kihara, with the Deputy Registrar of the court granted authority to sign all requisite documents to facilitate the transfer
- 3.A permanent injunction restraining the defendants from accessing, entering and/or interfering with the construction and/or endangering the plaintiff's peaceful possession of Title Number Nairobi/Block 82/3602
- 4.The plaintiff is awarded costs of the suit plus interest at court rates calculated from the date of filing of the suit
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a dispute relating to land (sale and transfer of Title Number Nairobi/Block 82/3602)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kihara (Suing as a Legal Representative of Priscilla Wambui Kihara) v Mbagu & another", Case Analysis (2022). Environment & Land Case 1265 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13272/eng@2022-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.