Oginga v Mokoh

3. The respondent averred that, the appellant, who was the wife of the deceased, had entered upon and continued to interfere with the suit property, allegedly claiming it as part of the deceased's estate. She also prevented the respondent from entering the suit property and undertaking any developments thereon. The respondent contended that the appellant’s conduct amounted to trespass and forcible detainer, resulting in his dispossession and loss of use and prots from the suit property. 4. Consequently, the respondent sought, inter alia, a declaration that he was the lawful, bona de and registered owner of the suit property; an order of eviction against the appellant; a permanent injunction restraining the appellant from entering, trespassing upon, or otherwise interfering with the suit property; general damages for trespass; and costs of the suit. 5. By a statement of defence and counterclaim dated 3rd June, 2016, the appellant denied that she had trespassed upon or unlawfully occupied the suit property. She admitted the sale agreement between her deceased husband, Oyugi Oremo, and the respondent, with respect to the suit property, at an agreed purchase price of Kshs. 135,000/=, and acknowledged part- payment of Kshs. 70,000/=. She maintained, however, that the balance of Kshs. 65,000/= was payable only after the respondent had executed the requisite transfer documents and obtained Land Control Board consent to facilitate transfer of the suit property to her late husband. 6. The appellant contended that the respondent had failed to perform his part of the agreement, particularly by failing to obtain the requisite Land Control Board consent and execute the transfer documents. She further asserted that she and her husband had taken possession of the suit property after execution of the sale agreement, with the respondent's express or implied consent, and had remained in occupation since 1996. She averred that they developed the suit property by constructing thereon a structure worth Kshs. 2,000,000/=. 7. Regarding the proceedings before the Rongo Land Disputes Tribunal, the appellant acknowledged that the respondent instituted Cause No. 28 of 2006 seeking recovery of the suit property. She maintained, however, that the Tribunal directed her late husband either to pay the outstanding Kshs. 65,000 or surrender the suit property, rather than ordering an unconditional reversion of the suit property to the respondent. She further averred that after the decree was issued, the respondent went missing, and her deceased husband made unsuccessful eorts to trace him in order to pay the balance of the purchase price. She averred that she was ready and willing to pay the outstanding balance of the purchase price. 8. By way of counterclaim, the appellant sought dismissal of the respondent's suit and specic performance, compelling the respondent to receive the balance of Kshs. 65,000/= and, upon payment, hand over the documents necessary to transfer the suit property to her. She also sought an order of a permanent injunction restraining the respondent from trespassing on the suit property, together with costs of the suit. 9. The suit was heard by way of viva voce evidence, with both parties reiterating the averments contained in their respective pleadings. While the respondent testied that she was ready and willing to pay the balance of the purchase price, the appellant maintained that he was no longer interested in the sale and sought vacant possession of the suit property, contending that the appellant had failed to comply with the order requiring payment of the balance of the purchase price within a specied period. 10. In a judgment delivered on 12th April, 2018, the learned Judge (Ongondo, J.) entered judgment in favour of the respondent. It was his nding that the sale agreement was void for want of the requisite Land Control Board consent within six months as stipulated under Sections 6(1) and 8(1) of the Land Control Act. The court also found that the appellant’s late husband had made part payment of sum https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1985/eng@2026-09-25 2

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Kshs.70,000/=, but the balance of Kshs.65,000/= remained unpaid, and the transaction was never completed. The court rejected the appellant’s claim that the respondent had frustrated completion by disappearing. It held that, once the transaction became void, the purchaser’s remedy was recovery of the Kshs.70,000/= paid, pursuant to Section 7 of the Land Control Act, rather than specic performance. 11. The trial court further found that the respondent remained the absolute and indefeasible registered proprietor of the suit property and that the appellant was a trespasser. It consequently granted the respondent a declaration of ownership, an order of eviction and permanent injunction against the appellant, and Kshs.10,000/= general damages for trespass. At the same time, it ordered the respondent to refund the Kshs.70,000/= paid under the failed transaction, with interest, and directed each party to bear the costs of their respective claim and counterclaim. 12. Dissatised with this decision, the appellant lodged the instant appeal before us. By a memorandum of appeal dated 5th March, 2019, the appellant challenged the decision of the learned Judge on grounds that the respondent had failed to establish a prima facie case; the learned Judge failed to properly evaluate the evidence relating to the sale transaction, including the sale agreement, the payment of Kshs.70,000/= and the appellant’s continued occupation and development of the suit property; and that the Judge failed to appreciate that the appellant was ready and willing to pay the balance of Kshs.65,000/=, whereas the respondent had remained unavailable for several years and thereby frustrated completion of the transaction. 13. The appellant further faulted the learned Judge for failing to take into account the proceedings and award of the Rongo Land Disputes Tribunal, as adopted by the Principal Magistrate’s Court, which she contended rendered the respondent’s subsequent suit before the trial court res judicata. She also contended that the learned Judge failed to appreciate that the respondent had himself breached the sale agreement by failing to execute the transfer documents and obtain the requisite Land Control Board consent, which were necessary before the balance of the purchase price became payable. Lastly, the appellant contended that the judgment was oppressive and occasioned double jeopardy, particularly in view of the permanent house she had constructed on the suit property. She urged us to set aside the impugned judgment, and direct the respondent to accept the balance of Kshs.65,000/= upon execution of the necessary transfer documents. 14. The appeal was heard by way of written submissions. Mr. Sagwe, learned counsel, was on record for the appellant. It was his submission that on 6th September, 1996, the appellant’s husband, Oyugi Oremo, entered into a sale agreement with the respondent for purchase of the suit property at Kshs.135,000/=. He averred that the appellant’s husband paid Kshs.70,000/=, took possession of the property and constructed permanent residential houses and rental premises thereon, with the balance of Kshs.65,000/= remaining payable upon completion of the transfer process. He submitted that the appellant’s husband died in 2011, before the transfer was completed, but that the appellant remained ready and willing to pay the outstanding balance. He contended that the respondent had, however, disappeared to his rural home in Githunguri, Kiambu, and could not be traced despite eorts to have him receive the balance. 15. Mr. Sagwe submitted that instead of the respondent receiving the balance of the purchase price pursuant to the order by Rongo Land Disputes Tribunal, he instituted the suit before the ELC, which counsel contended was res judicata. It was further submitted that the trial court erred in nding for the respondent despite the terms of the sale agreement contemplating that the respondent would rst execute the transfer forms and obtain the requisite Land Control Board consent, after which the balance would be paid. Counsel maintained that neither of these steps had been undertaken, and that the respondent was therefore the party who had breached the agreement. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1985/eng@2026-09-25 3

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16. Counsel urged that the trial court ought to have given eect to the agreement and directed the respondent to execute the transfer documents and obtain the requisite consent so that the appellant could pay the Kshs.65,000/= balance. He also submitted that the impugned judgment was oppressive and would occasion substantial prejudice to the appellant, as she had constructed permanent residential houses and shops on the suit property valued at approximately Kshs.2 million. He further pointed out that the appellant’s deceased son, Shem Oyugi, and other members of the family had been buried on the suit property, and that the appellant had no alternative land on which to relocate. 17. In rebuttal, Mr. Mulisa, learned counsel for the respondent, submitted that the respondent is the registered owner and proprietor of the suit property, and that the appellant had failed to establish any lawful basis for her continued occupation of the suit property. He urged that the sale agreement between the parties was not in dispute. However, the balance of the purchase price of sum Kshs.65,000/= had never been paid by the appellant or her late husband. Following the failure to complete the transaction, the respondent lodged proceedings before the Rongo Land Disputes Tribunal in 2006, which directed the appellant’s husband either to pay the outstanding balance or surrender the suit property. Counsel asserted that the said award was subsequently adopted as an order of the court on 18th January, 2011. Counsel contended that the appellant and her deceased husband nevertheless failed to comply with the decree and instead continued occupying the suit property. 18. On the allegation that the respondent had disappeared and thereby prevented payment of the balance of the purchase price, counsel submitted that the appellant had not produced any credible evidence to demonstrate that she or her deceased husband had made genuine eorts to pay the said balance. He urged that the appellant had not produced evidence of the alleged attempt to send the money through a banker’s cheque or the alleged letter to the respondent expressing willingness to pay. Counsel therefore maintained that the assertion that the respondent was unavailable was unsubstantiated. 19. With regard to res judicata, Mr. Mulisa submitted that the issue before the Land Disputes Tribunal was materially dierent from that subsequently determined by the ELC. The Tribunal had dealt with payment of the balance of the purchase price and surrender of the suit property, whereas the subsequent suit concerned eviction, permanent injunction and damages for trespass. These issues, counsel argued, had not been directly and substantially determined by the Tribunal. 20. The respondent’s counsel also challenged the appellant’s contention that the respondent had breached the sale agreement. He submitted that the agreement was between the respondent and the appellant’s deceased husband, and that the appellant was not a party or privy to the contract, and that she had not obtained letters of administration in respect of her deceased husband’s estate to enable her to institute or maintain a contractual claim arising from the said agreement. 21. This is a rst appeal. The role of this Court in a rst appeal was well set out in the case of Selle vs Associated Motor Boat Co. Ltd [1968] EA 123 where Sir Clement De Lestang stated that: “ This court must consider the evidence, evaluate it itself and draw its own conclusions though in doing so it should always bear in mind that it neither heard witnesses and should make due allowance in this respect. However, this court is not bound necessarily to follow the trial judge’s ndings of fact if it appears either that he had clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.” 22. Having re-evaluated the grounds of appeal, the record of appeal, as well as the rival submissions by the parties, we nd that the appeal turns on four broad questions: whether the learned Judge https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1985/eng@2026-09-25 4

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properly evaluated the evidence and determined the parties’ respective obligations under the 1996 sale agreement; whether the earlier proceedings before the Rongo Land Disputes Tribunal and the decree adopted by the Magistrate’s Court rendered the respondent’s subsequent suit before the trial court res judicata; whether the appellant established a subsisting legal or equitable interest in the suit property, or otherwise demonstrated an entitlement to specic performance; and, whether the reliefs granted by the learned Judge were justied in the circumstances of this case. 23. There is no dispute that on 6th September 1996, the respondent entered into a sale agreement with the appellant's deceased husband, Oyugi Oremo, for the sale of the suit property at a consideration of Kshs.135,000/=. It is also common ground that the deceased paid Kshs.70,000/=, with a balance of Kshs.65,000/= remaining outstanding. The deceased and, subsequently, the appellant remained in possession of the suit property and developments were undertaken thereon. What is critical, however, is that the balance of the purchase price was never paid and the suit property was never transferred to the appellant’s husband. 24. The appellant sought to explain the non-payment of the balance of the purchase price, by asserting that the respondent disappeared to his rural home in Githunguri, and could not be traced. We have carefully considered that assertion against the evidence on record. The sale agreement was entered into in 1996. More signicantly, when the dispute eventually came before the Rongo Land Disputes Tribunal in 2006, the appellant’s husband represented to the Tribunal that he was ready and willing to pay the outstanding balance of Kshs.65,000/=. The Tribunal consequently directed him to pay the outstanding balance, failing which the suit property would revert to the respondent. The award was subsequently adopted as an order of the court on 18th January, 2011. Thus, by the time the order was adopted, the purchaser had already been aorded a further and unequivocal opportunity and time to complete the transaction. Yet, there is no evidence that the Kshs.65,000/= was ever paid to the respondent, or even deposited in court. 25. There is also no credible evidence of any concrete attempt by the appellant or her late husband to pay the outstanding purchase consideration pursuant to the Tribunal award, and the resultant court order. The appellant's assertion that she was ready and willing to pay remained, in the circumstances, no more than a claim. As counsel for the respondent correctly submitted, no banker’s cheque, deposit, correspondence enclosing the balance of the purchase consideration or other documentary evidence demonstrating an actual tender of the purchase price was produced. Even assuming that the respondent had previously been dicult to trace, the Tribunal proceedings gave the appellant’s husband a formal opportunity to resolve the matter, and he still did not pay the said balance. 26. The signicance of this history is that the appellant cannot rely merely on a present assertion of readiness and willingness to pay the said balance to revive a transaction which had remained incomplete for nearly two decades. The appellant’s husband had, in 2006, expressly represented his willingness to pay; he was thereafter ordered to do so; the order was adopted as a decree of the court in 2011; and yet no payment was made. Readiness and willingness, particularly in the context of a claim for specic performance, must be demonstrated by conduct and not by assertion alone. The prolonged failure to tender the balance, notwithstanding the opportunity aorded by the Tribunal's award and the subsequent court order, is compelling evidence that the purchaser did not perform, or take reasonable steps to perform, his part of the bargain. 27. Specic performance is an equitable and discretionary remedy. A party seeking it must demonstrate that he or she has performed, or is ready and willing to perform, the essential obligations resting upon him or her under the contract. In Gurdev Singh Birdi & Another v Abubakar Madhbuti [1997] KECA 13, this Court declined to order specic performance where https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1985/eng@2026-09-25 5

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the purchasers had not tendered the balance of the purchase price, and held that such conduct demonstrated that they were not ready, able or willing to perform their part of the bargain. The Court observed as follows: “ However, the appellants’ conduct has been such as to render it inequitable for specic performance to be granted…there was no evidence that prior to the ling of the suit the appellants tendered the balance of the purchase price to the respondent. This, in my view, only conrms that they were never ready, able or willing to carry out their part of the contract, the appellants simply could not raise the balance of the purchase price on or before the specied time, i.e. January 31, 1993, and were in fact in breach of the agreement. Thirdly, the nature of the property and the surrounding circumstances make it inequitable to grant the relief of specic performance. The contract not having been completed in January, 1993, the period xed for completion, it would be oppressive, unjust and nancially injurious to require the respondent, who has not been guilty of laches nor inordinate delay, to part with his property more than four years after the event when its current value has materially appreciated.” 28. The equitable discretion to grant specic performance is exercised on the basis of what is just and equitable in the circumstances. A party who has failed to perform an essential part of the bargain cannot, merely by asserting a present willingness to perform, compel the other party to remain indenitely bound to a transaction. This Court in Nabro Properties Ltd v Sky Structures Ltd & 2 others [2002] KECA 296 (KLR) held thus: “ A party seeking specic performance must show and satisfy the court that it can comply i.e. it must be ready, willing and able to do so. In this case, there was only a mere statement that the appellant was ready to pay. That evidence could not suciently discharge the burden cast on the appellant.” 29. Similarly, in George Njenga Kagai v Samuel Kabi Njoroge another 2019 KECA222 (KLR) this Court observed as follows: “ It had been 12 years since the agreement but the balance of the purchase price had not been paid. The appellant though he indicated that he was ready and willing to complete the transaction, he did not show how he would do so. As stated earlier on in this judgment, the appellant had not even shown that he attempted to pay the 1st respondent the purchase price and was rejected. It was not enough for the appellant merely to state that he was ready and willing to complete the transaction… Clearly therefore, the appellant was not entitled to an order of specic performance considering that he breached the essential terms of the agreement on account of want of payment of the purchase price. The alternative to refund the appellant the purchase price so far paid to the rst remedy was the best option as correctly decreed by the trial court.” 30. In the present appeal, the delay was not merely a matter of months or even a few years. The agreement was entered into in 1996. The Tribunal intervened in 2006 and expressly gave the appellant’s husband an extended grace period beyond the time stipulated by the agreement option of paying the outstanding Kshs.65,000/= or surrender the suit property back to the respondent. The award was adopted as a court order in 2011. Yet, even thereafter, there was no evidence of payment of the said balance. The appellant was therefore aorded a considerable period of time within which to complete the transaction but did not do so. In our considered view, it would be contrary to the equitable nature https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1985/eng@2026-09-25 6

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of specic performance to revive and specically enforce, decades later, a transaction which remained incomplete for want of payment of a substantial part of the purchase price. 31. We are mindful of the appellant's submission that, under the sale agreement, the balance was payable upon the respondent executing the transfer documents and obtaining the requisite Land Control Board consent. That contention cannot, however, be considered in isolation from the subsequent conduct of the parties and, particularly, the proceedings before the Tribunal. Whatever may have been the parties' respective obligations under the original agreement, the dispute was subsequently placed before the Tribunal and the purchaser was expressly directed to pay the said balance or surrender the suit property. The appellant's husband did neither. 32. The appellant further contended that her long possession and developments erected on the suit property entitled her to an equitable remedy notwithstanding the absence of Land Control Board consent which rendered the sale void. There is no doubt that this Court has recognized that, in appropriate circumstances, the doctrines of constructive trust and proprietary estoppel may apply to transactions relating to land notwithstanding the absence of Land Control Board consent. For instance, in Kitilit v Kibet (Civil Appeal 51 of 2015) [2018] KECA 573 (KLR), this Court expressly held that the application of those equitable doctrines depends upon the circumstances of the particular case. The circumstances in the Kitilit case, however, are materially dierent from those obtaining here. There, the purchaser had paid the full purchase price, had been put into possession and had remained in possession while the vendor failed to transfer the property. 33. Similarly, in William Kipsoi Sigei v Kipkoech Arusei & Another [2019] KECA 446, the Court observed as follows: “ While it is not in dispute that the transaction did not have the consent of the Land Control Board as required in law, the facts show that the 1st respondent had paid the entire amount of the purchase price and as a result, had been allowed occupation of the suit property… In Macharia Mwangi Maina & 87 Others v Davidson Mwangi Kagiri [2014] eKLR (Macharia Mwangi Maina Decision) this Court took a similar approach, in a matter where the purchasers of the property were allowed to occupy property that they had paid the full consideration for, and later, among other conditions, failed to secure the consent of the Land Control Board… Taking into account the Macharia Mwangi Maina decision and the Willy Kimutai Kitilit decision alongside the circumstances of this case, we are of the view that the fact that the appellant herein, received the full purchase price for the property, allowed the 1st respondent to take possession, and for a period of at least fourteen years, let him remain on the property undisturbed, a constructive trust had been created.” 34. The circumstances in the present appeal are dierent. The appellant’s husband paid only Kshs.70,000/ = out of the purchase price amount of sum Kshs.135,000/=, and the outstanding Kshs.65,000/= remained unpaid. More importantly, the failure to complete the payment persisted even after the Tribunal had, in 2006, directed payment of the said balance and after that award had been adopted as a court order in 2011. The appellant's prolonged occupation and development of the suit property cannot, in those circumstances, by themselves transform an incomplete transaction into an enforceable proprietary interest against a registered proprietor. 35. We are therefore not persuaded that the circumstances of this case warrant the imposition of a constructive trust or the grant of specic performance. Equity does not operate in a vacuum. It follows the law. The party seeking an equitable remedy must itself demonstrate equitable conduct and a willingness to perform their own obligations. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1985/eng@2026-09-25 7

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36. We also reject the appellant's assertion that the suit before the trial court was barred by the doctrine of res judicata. The proceedings before the Rongo Land Disputes Tribunal culminated in an order requiring the appellant’s husband to pay the balance of Kshs.65,000/= or surrender the suit property. The subsequent proceedings before the ELC concerned the respondent's claim for declaration of ownership, eviction, permanent injunction and damages for trespass. The Tribunal proceedings were, therefore, relevant to the history of the dispute, but they did not render the subsequent suit res judicata. 37. The trial court's order that the Kshs.70,000/= paid towards the purchase price be refunded to the appellant was, in our view, consistent with the statutory consequence applicable to a controlled transaction that could not be completed. In Syedna & Others v Jamil’s Engineering Co. Limited [1973] E.A., the Court held thus: “ The general principles would appear to be that where a buyer had paid but is unable to complete a contract, the seller upon rescinding it may sue for damages but must return any money that may have been paid. The general principle however must yield to the intention of the parties…..if the payment was part payment on default and reasons the seller must return the money.” 38. In the end, we nd that the appellant failed to demonstrate that the learned Judge misapprehended the evidence or reached conclusions unsupported by the record or by the law. In the circumstances of this case, specic performance was neither an appropriate nor an equitable remedy. We therefore nd no basis upon which to interfere with the learned trial Judge's decision. The appeal is accordingly dismissed with costs to the respondent. DATED AND DELIVERED AT KISUMU THIS 25TH DAY OF SEPTEMBER, 2026. ASIKE-MAKHANDIA ....................... JUDGE OF APPEAL H.A. OMONDI ...................... JUDGE OF APPEAL L. KIMARU ...................... JUDGE OF APPEAL I certify that this is a true copy of original. Signed DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1985/eng@2026-09-25 8

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