Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedEnvironment and Land Case E190 of 2014· [2023] KEELC 20282 (KLR)

Mghendi v Pepo & another

Environment and Land Court
28 September 2023
5,947 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The plaintiff, father and legal representative of the estate of the late Anthony Chari Mzae, sued the defendants, heirs of the late vendor Lewa Pepo, seeking specific performance of a sale agreement dated 7th August 1989 for six acres of Plot No. 507 (later Kilifi/Mtwapa/803) at Kshs 144,000, alternatively a refund at current market value, plus injunction, mesne profits and extension of the Land Control Board consent. The defendants opposed, arguing the claim was barred by Section 4(1)(a) of the Limitation of Actions Act, that the purchaser never completed payment nor took possession, and that granting relief beyond clause 5 of the agreement (refund of monies paid if transfer was frustrated) would amount to the court rewriting the contract. The court found a valid written, signed and attested sale agreement under Section 3(3) of the Law of Contract Act. It held the cause of action accrued on 18th March 2014 when title passed to the defendants, so the claim was not statute-barred. It found the purchaser's family took possession and developed the land before eviction. Specific performance was refused because the contested Kshs 10,000 instalment could not be verified. Invoking equity against unjust enrichment, the court ordered a refund of the proved purchase money of Kshs 134,000 with interest at court rates from 6th March 1992, declined the injunction and mesne profits as untenable, and awarded costs to the plaintiff.

Key legal issues

#
01

Validity of the sale agreement

Holding

The sale agreement dated 7th August 1989 was valid, being in writing, signed by both parties and attested by an advocate

Reasoning

Section 3(3) of the Law of Contract Act requires a land contract to be in writing, signed by all parties and attested. The 1989 agreement met all these formalities, having been attested by Daniel Musinga Advocate. The court therefore found a valid contract of sale for six acres at Kshs 144,000 payable in instalments.

p. 8
02

Specific performance

Holding

Specific performance was refused because the payment of the final Kshs 10,000 instalment could not be verified

Reasoning

Specific performance is discretionary and granted on well-laid principles based on a valid enforceable contract. Although the contract was valid on its face, the contested Kshs 10,000 instalment could not be verified: the side notes on the agreement could not be authenticated, the makers of the documents had died, and PW1 could not confirm the payment with certainty.

p. 10
03

Limitation of actions

Holding

The claim was not statute-barred because the cause of action to recover land accrued on 18th March 2014 when title passed to the defendants

Reasoning

The defendants argued the claim was barred by Section 4(1)(a) of the Limitation of Actions Act, six years expiring after the 1989 contract. The court held this was not merely a suit to enforce the contract but one to recover land, and the cause of action arose when the title was transferred to the defendants' family in 2014, excluding the purchaser's dependents.

p. 9
04

Alternative remedy of refund

Holding

A refund of the proved purchase money of Kshs 134,000 with interest from 6th March 1992 was granted as restitution against unjust enrichment

Reasoning

Having declined specific performance, the court held the purchaser's heirs could not lose both land and purchase money. Equity does not permit unjust enrichment. However, the refund was limited to the actual monies proved paid (Kshs 134,000), not current market value, since clause 5 of the agreement provided only for refund of monies paid and the court cannot rewrite a contract.

p. 10
05

Possession by the purchaser

Holding

The evidence supported the finding that the family of Anthony Chari Mzae took possession of the land and developed it

Reasoning

Photographs produced showed the family settled on the land with buildings and developments. The defendants' own cross-examination confirmed a structure other than the family home existed on the property. The family was later forcibly evicted after the vendor's estate sued the purchaser's son in Malindi HCCC No 159 of 2012.

p. 9

Legal principles established

#
  • A valid contract for the sale of land must be in writing, signed by all parties and attested under Section 3(3) of the Law of Contract Act
  • Where specific performance is unavailable, equity will grant restitution to prevent unjust enrichment of a vendor's estate that retains both land and purchase money
  • A claim to recover land accrued when title was transferred to the defendants in 2014, not on execution of the 1989 sale agreement

Court orders

#
  1. 1.The Defendants are ordered to refund the plaintiff a sum of Kshs. 134,000 being proved purchase money, with interest at Court rates reckoned from 6th March 1992 till payment in full
  2. 2.The prayers for an injunction and mesne profits are declined as not tenable given the order for refund
  3. 3.Costs of the suit to be borne by the defendants

Authorities

#

Legislation

  • Law of Contract ActSection 3(3)
  • Judicature ActSection 3
  • Land ActSection 38(2)
  • Limitation of Actions Act (Cap 22)Section 4(1)(a)
  • Evidence Act (Cap 80)Sections 97 and 98
  • Civil Procedure Act (Cap 21)Section 2 (definition of mesne profits)

Cases cited (11)

  • Reliable Electrical Engineers Ltd v Mantrac Kenya Limited
    [2006] eKLR

    Specific performance is discretionary and granted only on well-laid principles; requires a valid enforceable contract

  • Willy Kimutai Kitilit v Michael Kibet
    [2018] eKLR

    Doctrine of equity; constructive trust and proprietary estoppel overlap and relieve against unconscionable conduct

  • Yaxley v Gotts
    [2000] Ch. 162

    Constructive trust and proprietary estoppel overlap (cited within Kitilit quotation)

  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    [2014] eKLR

    Leading authority on principles for granting a permanent injunction

  • Mrao Ltd v First American Bank of Kenya Ltd & 2 Others
    [2003] KLR 125

    Leading authority on principles for injunctions

  • Attorney General v Halal Meat Products Limited
    [2016] eKLR

    When mesne profits may be awarded for wrongful occupation of property

  • National Bank of Kenya Limited v Pipeplastic Samkolit (K) Limited & another
    [2001] eKLR

    A court cannot rewrite a contract between parties unless coercion, fraud or undue influence is pleaded and proved

  • Fina Bank Limited v Spares & Industries Limited
    [2000] eKLR

    Equity does not allow a party to escape a bad bargain absent coercion, fraud or undue influence

  • Paragon Electronics Limited v Fatma Muses
    [2022] eKLR

    Restraint on courts re-writing contracts, adopting National Bank of Kenya

  • The Speaker, Kisii County Assembly & 2 others v James Nyaoga Omariba
    [2015] eKLR

    Comparable finding restraining courts from re-writing contracts

  • Brigitie Korn v Kahindi Msanzu Ndurya
    [2021] eKLR

    A holder of a power of attorney is not a competent witness if his evidence is based on hearsay

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to land (Article 162(2)(b) of the Constitution; Environment and Land Court Act)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mghendi v Pepo & another", Case Analysis (2023). Environment and Land Case E190 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20282/eng@2023-09-28

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