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ELCDismissedEnvironment and Land Appeal E031 of 2023· [2024] KEELC 4407 (KLR)

Kihiko v Waiganjo (Environment and Land Appeal E031 of 2023) [2024] KEELC 4407 (KLR)

Environment and Land Court
23 May 2024
3,725 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan seller who signed a land sale agreement could not back out by claiming she was mistaken about the plot size—the court enforced the sale.

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 Thika against a judgment of the Principal Magistrate delivered on 5 April 2023, which had granted the Respondent purchaser specific performance of a sale agreement dated 19 August 2020 over 0.1 ha excised from parcel Dagoretti/Kinoo/6317. The Appellant vendor contended she had agreed to sell only 50ft by 100ft (0.05 ha), that the agreement was vitiated by mistake, that the suit land no longer existed following subdivision of the mother title, and that the conditions for specific performance had not been met. The court framed four issues: clarity on the size of the land, mistake, specific performance, and costs. It held that the written agreement, the evidence of the purchaser, the broker and the surveyor, and the pattern of subdivision established that the parties agreed on 0.1 ha (100ft by 100ft). Applying Gami Properties Limited, it found no common mistake and no material misrepresentation; the Appellant, an educated retired nurse, took no steps to rescind despite allegedly discovering the error the day after execution and continued receiving the purchase price until February 2021. The court concluded there was no mistake but a change of heart. The trial court's grant of specific performance was upheld. However, the court varied the trial court's finding on the outstanding balance, holding it to be Kshs. 526,000/- rather than Kshs. 400,000/-. The appeal was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the parties were ad idem on the size of the land sold

Holding

The parties were clear that the land sold measured 0.1 ha (100ft by 100ft); the written agreement, the evidence of PW1, PW2 and the surveyor confirmed this

Reasoning

The written agreement stated the size as 0.1 ha (100ft by 100ft) and was duly executed. PW1 and PW2 testified that 0.1 ha was sold. The surveyor subdivided the mother title into three portions, two of 100ft by 100ft, consistent with an intention to excise such a portion. The Appellant, an educated retired nurse experienced in land transactions, was held not to have been misled.

p. 7
02

Whether the agreement was vitiated by mistake

Holding

No mistake vitiated the agreement; the Appellant's claim of mistake was a change of heart, and she took no timely steps to rescind

Reasoning

Applying Gami Properties, a contract may be set aside for mistake only where the misapprehension is common to both parties and fundamental, or induced by material misrepresentation. The Appellant alleged she discovered the error the day after execution but took no action - she neither rescinded nor stopped receiving the purchase price paid from 20/8/2020 to 1/1/2021, only reneging on 12/2/2021.

p. 7
03

Whether the trial court erred in granting specific performance

Holding

No error; the contract not being invalidated, specific performance was properly granted

Reasoning

The Appellant's reliance on undue hardship and on the alleged invalidity of the agreement failed because the court found the agreement valid and free of vitiating factors. Once validity was established, the equitable remedy of specific performance was properly available to the Respondent purchaser.

p. 8
04

The outstanding balance of the purchase price

Holding

The balance outstanding was Kshs. 526,000/-, not Kshs. 400,000/- as claimed by the Respondent

Reasoning

The Respondent claimed to have paid Kshs. 3.7M of the Kshs. 4.1M price, but the Appellant confirmed receipt of only Kshs. 3,574,000/-. On perusal of the record, the court accepted the Appellant's figure, varying the trial court's finding on the balance payable before transfer.

p. 8

Legal principles established

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  • To set aside a contract for mistake, the mistake must be common to both contracting parties and the instrument must have been expressed contrary to the intention of both; a unilateral change of heart does not vitiate a contract
  • Where a contract for disposition of land is valid and not invalidated, the court may enforce the equitable remedy of specific performance

Court orders

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  1. 1.Appeal dismissed
  2. 2.Variation of the trial court's finding on the outstanding purchase price balance to Kshs. 526,000/- instead of Kshs. 400,000/-
  3. 3.Costs of the appeal to the Respondent

Authorities

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Legislation

  • Advocate's ActSection 34
  • Land ActSection 38

Cases cited (5)

  • Mwariki Farm Limited v. Land Registrar Nakuru & 2 Others
    (2018) eKLR
  • Amina Abdul Kadir Hawa v. Rabinder Nath Anand & Anor
    (2012) eKLR
  • Gami Properties Limited v National Social Security Fund Board of Trustees & Chief Land Registrar
    [2021] eKLR
  • Kiplangat Arap Biator v. Esther Tala Cheyegon
    [2016] eKLR
  • Moynes v. Cooper
    [1956] 1 ALL ER. 450
On appeal from
Principal Magistrate's Court
Not stated
Jurisdiction invoked
First appellate jurisdiction over the subordinate court's decision in a land matter

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, "Kihiko v Waiganjo (Environment and Land Appeal E031 of 2023) [2024] KEELC 4407 (KLR)", Case Analysis (2024). Environment and Land Appeal E031 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4407/eng@2024-05-23

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