Anne Mumbi Hinga v Gaitho Oil Limited [2019] KEELC 2542 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAIROBI

ELC CASE NO. 1069 OF 1998

ANNE MUMBI HINGA...............................................................PLAINTIFF

VERSUS

GAITHO OIL LIMITED..........................................................DEFENDANT

JUDGEMENT

By a Plaint re amended on 16th October, 2008 the Plaintiff prays for judgement against the Defendant for:

a) A temporary injunction restraining the Defendant either by itself, or through its agents, servants or howsoever from trespassing onto, selling, leasing out, disposing of, cultivating, constructing on, charging or in any other way dealing with land parcel LR Number 12337/6 Kiambu, pending the hearing and determination of this suit.

b) A mandatory injunction directed against the Defendant itself or against its agents, servants, or anybody purporting to be acting under the Defendant’s authority, direction or instructions requiring the Defendant or such other person to forthwith vacate land parcel number 12337/6 Kiambu pending the hearing and determination of the suit.

c) Special damages in the sum of Kshs. 31,112, 500. 00

d) General Damages

e) Costs of the suit.

f) Such other of further relief the court may grant.

The Defendant filed an Amended Defence including a Counterclaim dated the 17th March, 2009 where it admitted the descriptive and averred that vide an agreement of Sale dated the 20th December, 1996, the Plaintiff’s late husband and the Defendant agreed to sell the Defendant the suit land known as LR. No. 12337/6 Kiambu at a price of Kshs. 7 million. It states that the Kiambaa Land Control Board granted consent to the said transaction. The Defendant insists the Sale was not frustrated by death but remained valid as the relevant Land Control Board Consent was granted on 7th January, 1997. The Defendant contends that following the death of the Plaintiff’s husband and after procuring the consent of the Land Control Board, the Plaintiff continued to collect various sums of money as further part payment of the purchase price. It stated that the Plaintiff did not accept the remission as the Defendant had already paid her an astronomical sum of Kshs. 5, 208, 000/= towards the purchase price. Further, since the Plaintiff was unable to refund the Defendant the said sum, the Defendant was willing to complete the sale by paying to the Plaintiff the remaining balance of Kshs. 1, 792, 000/=. The Defendant claims the rescission was of no effect since it had already taken possession of the suit land and subsequently the Plaintiff continued to receive various sums of money towards the purchase price. The Defendant reiterates that it has so far paid the Plaintiff Kshs. 5, 208, 000/= and not Kshs. 3, 100,000/= as claimed. It admits having threatened to take possession of the suit land and infact legally took possession of the suit land on the 30th April, 1997 to safeguard its legal rights as the Plaintiff was threatening to sell the suit land to a certain white man to defeat its interests. The Defendant confirms being aware of the Letters of Administration Intestate in HCSC No. 2662 of 1997 which was issued on 4th February, 1998 but is unaware of the alleged Confirmation of Grant. Further, that it took possession of the suit land legally, lawfully and openly as a purchaser and has been utilizing it for its own benefit and not caused any wastage. It denies the particulars of Special Damages on the alleged loss of user of land at Kshs. 2,835, 000/= per year totaling Kshs. 28, 350, 000/=. It disputes the alleged value of the coffee trees destroyed in the sum of Kshs. 2,362, 500/= and contends that the total figure of Kshs. 31, 112, 500. 00 as Special Damages is fictitious as the same is meant to give credence to the Plaintiff’s suit. It reiterates that the Plaintiff has acquiesced its acquisitions and possession of the suit land and is guilty of laches. Further, that it is willing to pay the balance of the purchase price and seeks the Court’s intervention to make an order for specific performance. It states that the suit does not disclose a reasonable cause of action against it and should be dismissed. It filed a Counterclaim where it sought for orders of specific performance, as it is willing to pay the balance of the purchase price and the Plaintiff be compelled to transfer suit land to it.

Evidence of the Plaintiff

The Plaintiff called three witness. It was the Plaintiff’s claim that the dispute herein revolves around a Sale Agreement dated the 20th December 1996, which was executed by her late husband and the Defendant in respect of the suit land, with the purchase price being Kshs. 7 million. The Plaintiff contended that the Defendant was to pay 20% deposit towards the purchase price, with the completion date being within 90 days. The Plaintiff confirmed that the Defendant paid the deposit of Kshs. 1, 400,000/= towards the purchase price to her husband. Further, that the vendor died on 25th February, 1997 before the completion date. It was the Plaintiff’s testimony that after the husband’s demise, she later received Kshs. 1. 2 million on 20th March 1997, and Kshs. 500,000 on 6th May 1997 respectively from the Defendant. She claimed that Mr. Mbugua a director to the Defendant cancelled the sale agreement through a letter dated 9th June 1997, which was addressed to messrs Machira &Co. Advocates but copied to her. She further claimed that the Defendant proceeded to uproot all the coffee bushes and took possession of the suit land without her knowledge. She produced a list and bundle of documents filed on 6th July 2011 as her exhibits. She confirmed that the title deed to the suit land was in her name.   She testified that despite the defendant entering her suit land and uprooting her coffee bushes in February 2006, she failed to report the matter to the police. On the issue of the letter of consent dated 7th January 1997, she admitted having seen the said consent from the land control board and proceeded to Kiambu to verify its authenticity only to discover it was not in the records.   In regards to the letter dated 26th May 1997, she denied having instructed her advocates on her willingness to sign the transfer form.

She confirmed having been issued with letters of administration intestate on 4th February 1998 after which she proceeded to file the current suit. Further, that she received some monies from the defendant and was ready to finalize the sale of the suit land but it is a director to the Defendant, who rescinded the contract. She reiterates that she was ready to refund the purchase price as one Mr. Brown wanted to purchase the suit land but was prevented from doing due to caveat the Defendant registered against it. It was the Plaintiff’s further testimony that she declined to receive the defendant’s cheque for Kshs. 500,000 and instructed her lawyers to refund the said monies. She denied receiving any cash on 20th April 2002 to the tune of Kshs. 100,000 via petty cash voucher at Norfolk Hotel and disputed the signature thereon. She further denied receipt of Kshs. 200,000 on 12th December 2000 and Kshs. 150,000 on 14th June 2001 as indicated in the petty cash vouchers, as the signatures therein  were not hers.

She confirmed instructing her lawyer Mr. Mutiso to return Kshs. 1,000,000 which was paid in 1998 and disputed the cheque dated 14th June 2001 on grounds it did not indicate the drawer’s name. She testified that she used to have an account  in Housing finance Corporation of Kenya but never gave the account number to the Defendant, and furthermore there was no signature of the account holder in the cash deposit receipt as there was no indication of who deposited the money. She further disputed the Petty cash vouchers dated 14th August 2007; 20th November 2002 and denied receiving the monies.

PW2 who was a lawyer recalled that on 7th July 1998, he received a letter from Machira and Co. Advocates, forwarding a cheque of Kshs. 500,000 from the purchaser as further payment of the purchase price but he responded that the client did not want to proceed with the transaction. He contended that the cheques were refunded to the Defendant.  In regards to the letter dated 9th September 1998, he testified that he wrote it himself, wherein he was setting the record straight; as he had appeared before court and the Judge had advised them to settle the matter. Further, in reference to the cheque dated 27th July 1998 he refunded it on the 11th August 1998 as there was a caveat against the suit land registered by Machira and Co. Advocates.  He insisted that in respect to the cheque issued in July 1998 bearing the name of Machira and Co. Advocates, he never implied at any time that the transaction was to proceed. He explained that he replied vide a letter dated 9th September 1998 stating that payment was received on without prejudice basis and he was acting on his client’s instructions.  He confirmed receiving the cheque for Kshs. 1,000,000 but claimed he returned it to Mr.Machira.

PW3 who was a registered valuer recalled that on 31st October 2014, as referenced in his report, he visited the suit land and saw a few maize plants and tea plantation on one hectare but no coffee plantation. It was his testimony that he was instructed to visit the suit land to assess the work of replanting the coffee bushes that had been uprooted in 2005. Further, that his client informed him that coffee plants were uprooted from the suit land. To determine the number of coffee plants that were uprooted from the suit land, he consulted the Coffee Research Institute who are experts in coffee farming that provided him with formula on how to do so, which was indicated in his report. He confirmed getting information on value of suit land from colleagues and valued the same at Kshs. 15,000,000 per acre.

Evidence of the Defendant

The Defendant called four witnesses.

It was DW3’s testimony that the Defendant purchased the suit land from the Plaintiff’s deceased husband in 1996 and made various payments amounting to approximately Kshs. 5, 200,000. It has been in possession of the suit land from1997 to date and continued cultivating it by growing maize, beans including tea plants. It continued to pay the Plaintiff part of the purchase price after the demise of the husband. DW1 a soil chemist and plant nutritionist confirmed having valued the uprooted coffee from suit land. He averred that he was not a valuer by profession and the figures on valuation of the coffee were compiled from a  Survey which Coffee Research Institute Economic section use.

He gave the analysis as follows:; Low level of production: kshs7, 553,655;  Mid-level production: Kshs. 25,145,640 High-level production: Kshs, 50,960,880 He took the scenario of 15 acres of coffee but when he went to the farm the said coffee bushes were already uprooted.

DW2 who was a farm manager testified that he used to work in Wilson Kuria’s land. He was employed by Mr Mbugua from the Defendant company and in 2002, he was instructed to uproot coffee bushes on the suit land. He confirmed that the whole parcel of land is around 20 acres but 15 acres contained coffee bushes.

DW3 who was a director of the defendant’s company testified that she was not a signatory to the Sale Agreement dated 20th December, 1996 but her late husband was. She confirmed that the defendant paid the Plaintiff Kshs. 5,200,000. Payments to the plaintiff were as follows; On 26th March 1997; Kshs. 1,200,000, on 6th May 1997; Kshs. 500,000 and on 12th December,2000; Kshs 200,000 through a petty cash voucher. She explained that Farmers Industries Limited (‘FIL” )which is a Sole Company of the Defendant did some of the payments.  She explained that the banker’s cheque for Kshs 150,000 dated on 14th June 2001 was from Commercial Bank of Africa. She however was not aware when the same was given to the Plaintiff but the husband banked it.  She insisted the petty cash vouchers dated 14th June 2001 indicate someone received the cheque, received but was unaware on who signed it.  In cross examination she confirmed that the  Bankers cheque dated  26th March 1997 for Kshs. 1,200,000 did not have a petty cash voucher accompanying it. While challenged, she did not produce evidence confirming Plaintiff received cheques for Kshs. 150,000. She insisted the petty cash voucher dated 20th April 2002 for 100,000 was paid to the plaintiff.

In relation to the cash deposit receipt dated 19th February for Kshs.20,000 deposited in an account at the Housing Finance Company, it was her testimony that the funds were directed to the Plaintiff’s account although it did not indicate who was depositing it. She insisted that the Plaintiff admitted to receiving Kshs. 1,700,000 and also the rest of the payment were sent to her. She testifies that the Plaintiff was personally given Kshs. 200,000. She further confirmed that the Defendant failed to pay the purchase price within 90 days after signing the sale agreement as the vendor had died.

On the issue of possession, she testified that she had no idea on the management stand with the vendor on possession. It was her testimony that  the Defendant took possession around March/ April/May 1997 because the Plaintiff wanted to sell the suit land to a third party and claimed there were payments made thereafter.  She testified that her husband cancelled the transaction after taking possession, but was unaware of the reason as to why he cancelled it. She confirmed that the Defendant did not finish paying the purchase price because the plaintiff filed the instant suit. Further that the suit land is currently registered in the name of the Plaintiff. She went on to testify that after the sale was not cancelled, the Plaintiff continued to receive payments but would later on retract.

The Plaintiff and Defendant filed their respective submissions that I have considered.

Analysis and Determination

Upon consideration of the Pleadings herein, testimonies of the witnesses as well as parties exhibits including submissions, the following are the issues for consideration:

Whether the Plaintiff is entitled to orders sought in the Plaint

Whether the Defendant is entitled to the orders sought in the counterclaim

Who should bear the costs of the suit

As to whether the Plaintiff is entitled to the orders sought in the Plaint.

The Plaintiff sought for various orders including mandatory injunction to restrain the Defendant from interfering with suit land; vacant possession; special damages; general damages; costs and interest.  The Plaintiff submitted that the defendant had no intention to revive the sale agreement but only demanded for the refund of the purchase price already paid. Further, that by the Defendant rescinding the transaction, the Plaintiff was entitled under the Law Society of Kenya conditions of sale 1989, to forfeit the deposit and all sums paid under the sale agreement. She insisted she was ready to refund the purchase price as demonstrated in the correspondence, which she produced as an exhibit. She claimed it was illegal for the Defendant to proceed to take possession of the suit land yet it had rescinded the transaction. She insisted that she only received Kshs. 3. 1 million and acknowledged two bankers cheques for Kshs 1,200,000 and 500,000 respectively, but disputed the other purported payments. She insisted the two other payments had been refunded to the Defendant through her lawyer Mutiso Advocate. On the issue of possession of suit land, the Plaintiff submitted that the Defendant forcefully took possession of the suit property on 30th April 1997 after expressly cancelling the transaction on 9th June 1997 but had no right to do so.  She contended that time was of essence in the Sale Agreement and not only had the Defendant failed to pay the purchase price by the completion date but also expressly cancelled it, at which point, the parties’ rights and obligations under the sale agreement came to a complete end.

On the issue of destruction of her coffee crops, she submitted that the defendant should be compelled to compensate her for the loss of income from the said coffee from the date it took possession of the suit land.

On valuation of the destroyed coffee plantations, Plaintiff urged the court to dismiss the testimony of DW1 a soil chemist and plant nutritionist who was not a valuer and reiterated that the unsigned report produced by the witness was of no probative value. She relied on the valuation conducted by PW3, who was a professional valuer.

The Defendant opposed the Plaintiff’s claim and submitted that it had always been willing to pay the balance of the purchase price but it was due to the obstructive actions of the Plaintiff when she obtained Grant of letters of administration Intestate, which prevented it from paying the balance of Kshs. 3,900,000 as before no person had the legal mandate to finalize the sale transaction. It argued that Letters of Administration Intestate were granted to the Plaintiff on 4th February 1998 and the current suit was filed in May 1998. It insisted that in the 3 months before the suit was filed, the Plaintiff had legal authority to proceed with the Sale but was evasive and obstructive to the point that it had to lodge a caveat to protect its interest. The Defendant disputed that contract of sale was frustrated by death of registered owner as incorrect in law. It asserted that all contractual obligations lie against a deceased estate and there is a legal obligation upon the administrator of the estate to complete all outstanding contractual obligations. It contended that it made six (6) payments to the Plaintiff after death of the registered owner, which demonstrates that the plaintiff did not regard the contract of sale as frustrated. It referred to the Plaintiff’s lawyers’ letter dated the 26th May 1997 which was written three (3) months after the deceased demise where she confirmed her willingness to sign fresh transfers. It further submitted that the Plaintiff’s claim that the contract of sale was cancelled by the letter dated 9th June, 1997 is incompatible owing to the fact that the letter was addressed by the defendant to it’s advocate instructing them to write a letter of cancellation but the advocate never wrote such a letter. It referred to the law of contract, which provided that a written contract can only be repudiated by written communication, verbal conversation over the telephone cannot cancel the written agreement of sale. The Defendant further referred to the letter dated 26th May 1997 and insisted it did not in any way amount to a completion notice. Further, that the said letter stated that the plaintiff was willing to sign fresh transfers and acknowledged receipt of monies paid. It also contained the demand that interest should be paid which confirmed that the Plaintiff regarded the contract of sale as intact and was in the process of being implemented. Further, that the said letter did not invoke any section of the agreement for sale and did not state that 20th March 1997 was the completion date. It also submitted that since the Plaintiff had no Letters of Administration Intestate, she had no legal mandate to enforce or retract or deal with the agreement for sale in any manner whatsoever.

On the issue of time being of essence, the Defendant in its submission cited the Halsbury laws of England at page 1 that “time cannot be of the essence if a date is not specified or capable of precise determination by the parties.” It contended that the death of the vendor meant that the completion date became unspecified until such a time when Letters of Administration Intestate would have been granted to an administrator and relied on Section 45 of the Law of Succession Act to support this argument. It reiterated that the Plaintiff was made an Administrator on 4th February 1998 and from that date until May 1998 when she filed this suit, she never issued a fresh completion notice. It was the Defendant’s submission that Contracts lapse after 6 years in accordance with section 4 of the Limitations of Actions Act Cap 22 but the current suit was filed within one and a half years after execution of Sale Agreement. It claimed that refund of the amount of Kshs. 3,100,000. 00 was a condition precedent to the rescission but since no refund was made when it was demanded for, the contract remained intact.

On the issue of possession, it submitted that it took possession to protect its interest as a purchaser as it feared the plaintiff was trying to sell the suit land to a third party.

On the issue of how much money was paid on top of the admitted Kshs.3, 100,000, the Defendant submitted that it tendered payment of 3,900,000 as evidenced in his letter dated 8th May 1998 and sent further payments evidenced by letters dated 7th July, 1998; 27th July, 1998 and 11th August, 1998 respectively.

On the issue of valuation, it took issue with the testimony of PW5 where he stated that the figures in the report were statistics and not based on factual knowledge or information pertaining to the suit land. Further, that Agreement for Sale did not mention the existence of any coffee bushes; and that bushes are valued independently from the land.

As this juncture, I wish to proceed to analyze the evidence above in relation to actions of the parties to the contract herein, which is in dispute. It was the Plaintiff’s contention, as the administrator of her late husband’s estate that the Sale Agreement the late husband entered into was invalid as he died before 90 days. She admitted receiving part of the purchase price after the husband’s demise but disputed the amount of the purchase price so far paid. She admitted that she was yet to refund the whole purchase price paid. It was her testimony that the Defendant had attempted to rescind the contract but in her evidence she admitted receiving certain monies after that. It was her claim that the Defendant had taken possession of the suit land and destroyed coffee plants thereon, which amounted to Kshs. 31,112, 500. 00. She admitted that she wanted to sell the land to a third party and wanted the Defendant out of the land.

According to clause ( c) of the Sale Agreement dated the 20th December, 1996 it stated as follows:’ The vendor shall be liable to procure the Commissioner of Lands Consent to the Transfer, the Land Control Board’s Consent to the Transfer in case the same is required and all other necessary documents to facilitate the registration of the legal transfer in favour of the purchaser. The purchaser shall then pay the balance of the purchase price to the Vendor’s Advocates and the said balance of the purchase price shall not be released to the Vendor by his Advocates aforesaid until the registration of all the legal documents in favour of the Purchaser.’

From this excerpt, it was the duty of the vendor to procure consent of the land control board which he did as evident in the Consent of the land control board dated the 7th January, 1997 to transfer suit land. From the date on the said consent, it is evident the same was issued before the vendor’s demise. Despite the fact that the Plaintiff objected to it, the burden of proof was upon her to avail a representative from the said Kiambu Land Control Board to confirm her allegations that it was not in the register.  The Plaintiff referred to various correspondence including letter dated the 9th June, 1997 where the purchaser wrote to messrs Machira & Company Advocates cancelling the transaction and sought a refund of Kshs. 3,100,000 that he had so far paid, and insisted the sale was already rescinded. From the said correspondence between the Defendant and its Advocates, it was clear that the Plaintiff sought for time to refund the purchase price but failed to do so. While testifying in court, she was categorical that she did not refund the purchase price since the Defendant registered a caveat on the suit land. As per a letter dated the 7th July, 2008 Machira & Company Advocates sent a Cheque of Kshs. 500,000/= to the Plaintiff’s advocates as further payment of the purchase price. Further, vide a letter dated the 27th July, 1998, the said firm further sent the vendor’s advocates Kshs. 500,000/= as purchase price. The said advocates acknowledged the payment vide their letter dated 9th July, 1998.  However vide a letter dated the 10th August, 1998 which was marked ‘ without prejudice’, the said firm returned the two cheques to the purchaser’s advocate insisting they were not ready to revive the Sale Agreement.  From the contents of a letter dated the 11th August, 1998 from messrs Machira & Company advocates, they aver that the cheque sent on 7th July, 1998 was banked and cleared hence they declined to accept the refund cheques which were issued by Mutiso & Company Advocates and returned the same to them. They also confirmed that the purchaser had already taken possession of the suit land. From the year 2000, the Defendant claimed to have paid the Plaintiff a further Kshs. 200,000 on 12th December, 2000 at Norfolk Hotel; KShs. 150,000 on 14th June, 2001 vide a Standard Chartered Bankers Cheque No. 054869; Kshs. 100,000 on 20th April, 2002 vide a petty cash voucher and Kshs. 20,000 deposited at the Plaintiff’s account at HFCK. The Plaintiff disputed the said payments but admitted that the account at HFCK was hers. From all these actions of the Plaintiff, I opine that the Plaintiff cannot claim that the contract stood rescinded when she failed to handle her part of the bargain by refunding the purchase price on time, when it was sought for. In essence and with the procurement of the Consent of the Land Control Board, it is my considered view that the Plaintiff’s role as an administrator of the vendor’s estate was merely to implement the wishes of the vendor in respect of the Sale Agreement. In the circumstances, and based on my analysis above, I find that the Sale Agreement between the Plaintiff and the Defendant was not stand rescinded.

On the issue of taking possession of the suit land, the Defendant claimed to have informed the Plaintiff that they were taking possession of the suit land in April, 1997 and the Plaintiff had no objection to the same. I note the Defendant has been in possession of the suit land from 1997 to date. The Plaintiff claimed the Defendant destroyed her coffee bushes and brought a valuer who valued the coffee bushes destroyed at Kshs. 31,112, 500. 00. The Defendant insists they have extensively developed the suit land by planting tea plants as well as cultivating maize and beans therein.  The Plaintiff never informed court on whether she reported the issue of the Defendant’s forcible entry to the suit land and destruction of the coffee trees to the Police or Agricultural Offices to take action against it.  I find that since she acquiesced on the Defendant’s entry and possession of the suit land, she cannot claim that this was without her consent.

Based on my evaluation of the evidence presented above, I wish to rely on the doctrine of equity demands that he who comes to equity must come with clean hands. From the Plaintiff’s actions and averments, I find that her conduct towards the transaction is contradictory as she does not have clean hands to cry foul.

Further, section 120 of the Evidence Act states thus: ’When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.’

In relying on these legal provisions and applying it to the actions of the Plaintiff , I opine that based on the Plaintiff’s acceptance to receive part of the purchase price after the deceased demise, and being the administrator of the deceased estate, she is estopped from claiming that the contract was rescinded. Since she failed to refund the purchase price when it was demanded, I hold that the Sale Agreement still stands. On the issue of time being of essence, I wish to rely on Halsbury laws of England at page 1 that “time cannot be of the essence if a date is not specified or capable of precise determination by the parties.”  Further, in the Sale Agreement, it was a special condition that the final balance of the purchase price would not be released to the Vendor by his Advocates until the registration of all the legal documents in favour of the Purchaser. In the current scenario, I note except for procuring the consent of the land control board, the vendor or the Plaintiff never delivered any completion documents as stipulated in the Sale Agreement and cannot now contend that it is the Defendant who is in breach for failing to pay the final balance of the purchase price. Further, that since the Vendor’s demise before the completion of the 90 days and before the Plaintiff obtained the Letters of Administration Intestate, the provisions of section 45 of the Law of Succession Act prohibited any dealings with the deceased estate. After the Plaintiff procured the said Letters of Administration Intestate, she did not give any indication on whether she issued the completion notice to the Defendant or not.

To my mind, it seems the Plaintiff realized the suit land was highly valued after the late husband had sold the same and hence did not want to effect the transfer despite receiving various payment. In the circumstances, and on a balance of probability, I find that the Plaintiff is not entitled to orders of injunction, vacant possession and general including special damages sought against the Defendant

As to whether the Defendant is entitled to the orders sought in the counterclaim. The Defendant sought for orders of specific performance in the counterclaim and dismissal of the Plaintiff’s suit with costs.  The Plaintiff opposed the prayers sought in the counterclaim and submitted that the defendant was not entitled to the remedy of equitable performance since he failed to perform an essential term of the contract in relation to payment of the purchase price but went ahead to cancel the transaction. She relied on the case  of Gurdev Singh Birdi & Marinder Singh Ghatora vs. Abubakar Madhubuti, where the  Court of Appeal  in Civil Appeal No. 165 of 1996, wherein the court declined the appellants the equitable remedy of specific performance to support her arguments. The Defendant in its submission pointed out that the cases of Gurdev Singh Birdi and Karanja Mbuguaas cited in the plaintiff’s submissions were distinctly different in facts and law from the instant case.

In the case of Gurdev Singh Birdi & Marinder Singh Ghatora vs. Abubakar Madhubuti, where the  Court of Appeal  in Civil Appeal No. 165 of 1996, held that  the underlying principle in granting the equitable relief of specific performance is that, "the Plaintiff must show that he has performed all the terms of the contract which he has undertaken to perform, whether expressly or by implication, and which he ought to have performed at the date of the writ in the action'

Thrift Homes Ltd V. Kenya Investment Ltd 2015 eKLR, the court stated that,"specific performance like any other equitable remedy is discretionary and will be granted on well settled principles. The jurisdiction of specific performance is based on the existence of a valid enforceable contract and will not be ordered if the contract suffers from some defects or mistake or illegality. Even where a contract is valid and enforceable, specific performance will not be ordered where there is an adequate alternative remedy.The court then posed the question as to whether the Plaintiff who was seeking specific performance in that case had shown that he was ready and able to complete the transaction".

Lamare vs Dixon 1873 L.R. 6HL 414it was held that, “the court will not grant specific performance if the person is in breach of a particular undertaking then the court will not entertain his request that the other party be compelled to complete his part of the contract.”

In relying on the abovementioned decisions and also anchoring my determination on the principles enshrined in Articles 2, 4 and 10 of the Constitution in respect of social justice and equity, I find that since the Plaintiff continued to receive the purchase price and the Defendant having taken possession of the suit land to safeguard its interest; and a consent of the land control board having been procured by the vendor; the Plaintiff has failed to prove her claim as against the Defendant. I note that the Plaintiff has not disputed having received a total of Kshs. 3. 1 million; Kshs. 1. 7 million as well as Kshs. 20,000 which was deposited into her account, towards the purchase price and I will deem the said amount which is Kshs. 4,820,000/= as undisputed.  It is against the foregoing that I dismiss the Plaintiff’s suit in its entirety and enter judgment for the Defendant in respect of the counterclaim.

I proceed to make the following orders:

i. The Defendant be and is hereby directed to pay to the Plaintiff the balance of the purchase price within 90 days from the date hereof with interest at 20 % from the 20th December 1996;

ii. Upon payment, the Plaintiff be and is hereby directed to effect the transfer of land parcel LR Number 12337/6 Kiambu  to the Defendant within 90 days from the date hereof, in default the Deputy Registrar, Environment and Land Court Milimani can proceed to sign the said transfer forms.

iii. Costs of the counterclaim is awarded to the Defendant.

Dated signed and delivered in open court at Kajiado this 4th day of July, 2019

CHRISTINE OCHIENG

JUDGE