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ELCDismissedMachakos Environment and Land Court Appeal No. of 2023 (ELC Appeal arising from Machakos PM ELC Case No. 4 of 2021)· [2024] KEELC 1272 (KLR)

Gichuhi & another v Kilundo (Environment and Land Appeal E005 of 2023) [2024] KEELC 1272 (KLR)

Environment and Land Court
6 March 2024
8,427 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~34 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Machakos confirmed that a land sale agreement cannot be cancelled for 'pressure' without solid evidence, and ordered the apartment transferred to the buyer.

What this practically means

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Executive summary

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This was a first appeal against the judgment of Hon. C. N. Ondieki, Principal Magistrate, delivered on 8th December 2022 in Machakos ELC Case No. 4 of 2021, which allowed the respondent's claim for specific performance of a sale agreement dated 7th November 2019 over Apartment No. A3MAB6-2 on Block B on L.R. No. 10426/252, Athi River, and dismissed the appellants' counterclaim. The appellants argued the agreement was procured by economic duress arising from a debt owed by the 2nd appellant to one Purity Mukami Njuki, that the consideration had been refunded, that the agreement was rescinded by letter dated 5th January 2021, and that as beneficial rather than registered owners they could not transfer the property. The respondent objected to the appeal's timeliness and to new factual material in submissions. The court first held the appeal was properly on record, leave having been granted on 30th January 2023 in ELC Miscellaneous Application No. E006 of 2023. On the merits, the court found the appellants failed to prove the loan, any threats, or forgery, their testimony being materially inconsistent and lacking credibility. The respondent had paid the full purchase price, the purported rescission did not comply with the agreement's completion-notice mechanism, and no refund was proved. The court held that beneficial ownership does not defeat specific performance and that damages were inadequate given the respondent's possession. The appeal was dismissed with costs, affirming the trial court's judgment.

Key legal issues

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01

Whether the appeal was filed out of time without leave

Holding

Leave to file out of time was granted on 30th January 2023 and the appeal filed on 6th February 2023 was within the extended period

Reasoning

Under Section 79G and Order 50 Rule 4, the 30-day period expired on 31st January 2023 after excluding the court vacation. The appellants obtained 7 days' leave on 30th January 2023 in ELC Misc. Application No. E006 of 2023, and the appeal filed on 6th February 2023 fell on the last day of that leave. The respondent did not challenge that order.

p. 9
02

Whether the agreement of 7th November 2019 was vitiated by duress

Holding

No duress was proved; the appellants failed to establish the alleged loan from, or threats by, Purity Mukami Njuki

Reasoning

The appellants bore the burden under Section 107 of the Evidence Act. They produced no evidence of the loan, demands, or threats, and no expert evidence of forgery. Their account was materially inconsistent: they denied any exchange of money yet the 2nd appellant admitted receiving Kshs. 300,000/-. Their failure to seek legal advice for over a year undermined the duress claim.

p. 11
03

Whether specific performance was available to the respondent

Holding

Yes; the respondent paid the full purchase price, complied with the agreement, and damages were inadequate given possession

Reasoning

Specific performance is discretionary and equitable, granted where damages are inadequate. The respondent paid the entire consideration and was in possession. The purported rescission of 5th January 2021 failed to comply with paragraph 14 of the agreement as no completion notice had issued, and no debit of refund cheques was proved. The appellants, as equitable owners who sold the property, were bound to transfer what they had.

Legal principles established

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  • The burden of proving duress lies on the party alleging it, and allegations must be supported by evidence
  • Submissions cannot be a platform for introducing new evidence not raised in pleadings or evidence
  • Specific performance can issue against a beneficial/equitable owner, not only a registered owner
  • A first appellate court must re-evaluate the evidence and make its own findings while allowing for lack of opportunity to see or hear witnesses

Court orders

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  1. 1.The appeal is dismissed with costs
  2. 2.The judgment of the trial court dismissing the appellants' counterclaim and allowing the respondent's claim (specific performance and permanent injunction) is upheld

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure RulesOrder 50 Rule 4
  • Civil Procedure RulesOrder 2
  • Evidence ActSection 107
  • Constitution of KenyaArticle 40(1) and (6)

Cases cited (9)

  • Madhupaper International Ltd & Another v. Kenya Commercial Bank Ltd & 2 Others
    [2003] eKLR
  • Medscheme Holdings (Pty) Limited & Another v. Bhamjee
  • Clifford Davis Management Limited v. Wea Records Limited
    [1975] 1 ALL ER 274
  • MTG v. Republic
    (Criminal Appeal E067 of 2021) [2022] KEHC 189 (KLR) (15 March 2022)
  • Reliable Electrical Engineers (K) Ltd v. Mantrac Kenya Limited
    [2006] eKLR
  • Kiruga v. Kiruga & Another
    [1988] KLR 348
  • Kenya Ports Authority v. Kuston (Kenya) Limited
    [2009] 2 EA 212
  • Gurder Birdi & Another v. Abubakar Mdhubuti
    CA No. 165 of 1996
  • Thrift Homes Ltd v. Kenya Investment Ltd
    [2015] eKLR
On appeal from
Principal Magistrate's Court, Machakos (Environment and Land Court)
ELC Case No. 4 of 2021
Jurisdiction invoked
First appellate jurisdiction under Section 79G of the Civil Procedure Act (appeal from subordinate court)

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, "Gichuhi & another v Kilundo (Environment and Land Appeal E005 of 2023) [2024] KEELC 1272 (KLR)", Case Analysis (2024). Machakos Environment and Land Court Appeal No. of 2023 (ELC Appeal arising from Machakos PM ELC Case No. 4 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1272/eng@2024-03-06

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