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ELCDismissedEngineer ELC Appeal No. E013 of 2021 (appeal from Engineer SPM ELC No. E013 of 2021)· [2024] KEELC 3739 (KLR)

Kimani v Ruiru (Environment and Land Appeal 4 of 2023) [2024] KEELC 3739 (KLR)

Environment and Land Court
9 May 2024
YAY. M. Angima
2,584 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan land seller who received a deposit must refund it when a sale collapses — arguing the contract was invalid for the first time on appeal failed.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Nyandarua against the judgment of Hon. H.O. Barasa (SPM) delivered on 28.02.2022 in Engineer SPM ELC No. E013 of 2021. The Respondent had sued the Appellant for specific performance of, alternatively a refund arising from, a sale agreement dated 28.07.2018 over Title No. Nyandarua/Muruaki/6624 for Kshs.2,300,000/=, of which she claimed to have paid a deposit of Kshs.1,835,000/=. The trial court found the Appellant in breach, declined specific performance and general damages, but ordered refund of the deposit with interest at court rates plus costs. The Appellant appealed on six grounds, principally that there was no valid contract because the sale agreement was attested by only one witness contrary to Section 3(3) of the Law of Contract Act, and that it was the Respondent who defaulted in paying the deposit. The court distilled two issues: whether the trial court erred in ordering refund of the deposit, and costs. Relying on the established principles governing first appellate courts (Selle v Associated Motor Boat Co.; Peters v Sunday Post; Watt v Thomas; Kapsiran Clan v Kasagur Clan), the court re-evaluated the evidence and dismissed the appeal. It held the validity issue was an unpleaded afterthought and immaterial since specific performance was refused; a party to an invalid agreement is entitled to a refund. It found, on five reasons, that the Appellant had in fact received the deposit, as evidenced by his offer to refund by instalments. The trial court's judgment was affirmed and the Respondent awarded costs of the appeal.

Key legal issues

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01

Whether the sale agreement was invalid for want of two witnesses under Section 3(3) of the Law of Contract Act

Holding

The issue failed: it was not pleaded, was raised as an afterthought, and was of no consequence since specific performance was refused and money paid under an invalid agreement must be refunded

Reasoning

The court held that issues must flow from pleadings, and validity was neither raised in the defence nor witness statement. Moreover, since specific performance was declined, validity was immaterial because a party to an invalid sale agreement is entitled to a refund of monies paid.

p. 5
02

Whether it was the Respondent who defaulted in paying the deposit, frustrating the sale

Holding

Rejected. The court found, on five reasons, that the Appellant received the deposit and was obligated to refund it

Reasoning

The Appellant produced no demand for payment or rescission letter; non-payment was not specifically pleaded under Order 2 rule 4; the detailed reply to the demand letter must have been instructed; and no retraction of that reply was ever sent. His offer of refund by instalments confirmed receipt of the deposit.

p. 5

Legal principles established

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  • Issues for determination must flow from the pleadings; a matter not pleaded cannot be a legitimate issue for determination
  • A party to an invalid sale agreement is entitled to a refund of money paid pursuant to it
  • A first appellate court must re-evaluate the evidence while making due allowance for the trial court's advantage of seeing and hearing witnesses

Court orders

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  1. 1.The appeal be and is hereby dismissed
  2. 2.The judgment of the trial court in Engineer SPM ELC No. E013/2021 is hereby affirmed
  3. 3.The Respondent is hereby awarded costs of the appeal

Authorities

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Legislation

  • Law of Contract ActSection 3(3)
  • Civil Procedure Rules, 2010Order 15 rule 2
  • Civil Procedure Rules, 2010Order 2 rule 4
  • Civil Procedure Act (Cap 21)Section 27 (proviso)

Cases cited (5)

  • Selle & Another v Associated Motor Boat Co. Ltd & Others
    [1968] EA 123
  • Peters v Sunday Post Ltd
    [1958] EA 424
  • Watt v Thomas
    [1947] A.C. 424
  • Kapsiran Clan v Kasagur Clan
    [2018] eKLR
  • Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
On appeal from
Principal Magistrate's Court, Engineer
Engineer SPM ELC No. E013 of 2021 – Miriam Njoki Ruiru v Samwel Mwangi Kimani
Jurisdiction invoked
First appellate jurisdiction over the subordinate court's judgment (magistrates' courts appeal)

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, "Kimani v Ruiru (Environment and Land Appeal 4 of 2023) [2024] KEELC 3739 (KLR)", Case Analysis (2024). Engineer ELC Appeal No. E013 of 2021 (appeal from Engineer SPM ELC No. E013 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3739/eng@2024-05-09

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