Kihiko v Waiganjo (Environment and Land Appeal E031 of 2023) [2024] KEELC 4407 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the parties were ad idem on the size of the land sold
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
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.
Whether the agreement was vitiated by mistake
No mistake vitiated the agreement; the Appellant's claim of mistake was a change of heart, and she took no timely steps to rescind
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 The Appellant alleged she discovered the error the day after execution but took no action - she neither rescinded nor stopped receiving the purchase price paid from 20/8/2020 to 1/1/2021, only reneging on 12/2/2021.
Whether the trial court erred in granting specific performance
No error; the contract not being invalidated, specific performance was properly granted
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.
The outstanding balance of the purchase price
The balance outstanding was Kshs. 526,000/-, not Kshs. 400,000/- as claimed by the Respondent
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.
Legal principles established
#- 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
#- 1.Appeal dismissed
- 2.Variation of the trial court's finding on the outstanding purchase price balance to Kshs. 526,000/- instead of Kshs. 400,000/-
- 3.Costs of the appeal to the Respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.