IN THE COURT OF APPEAL

AT NAIROBI

(CORAM: KANTAI, MUMBI NGUGI & GACHOKA, JJ. A)

CIVIL APPEAL NO. 402 OF 2018

BETWEEN
SIMON KIRUI GATHUNA.........................................APPELLANT

AND

DAVID KAVUTI GATIMU………………….……..… 1ST RESPONDENT

WACIAMA TIMBER HARDWARE LTD ……........2ND RESPONDENT

(Being an appeal against the judgement and decree of the Environment

and Land Court at Nairobi (E.O. Obaga J.) dated 26th July, 2018

in
ELC 442 of 2009
*****************

JUDGMENT OF THE COURT

1. The facts that emerge from the evidence presented before the

trial court leading to the judgment now before us on appeal are

not much in contention. Both in their pleadings and testimony,

the appellant and the 1st respondent, who testified before the

trial court, are in agreement on most of the material

particulars of the dispute between them. We set out below

what we glean from the pleadings and evidence of the two

Page 1 of 32
witnesses.

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2. At the time that the events leading to the appeal before us

began, Simon Kirui Gathuna, the appellant, was the registered

proprietor of land parcel number Dagoretti/Riruta/3932. The

1st respondent, David Kavuti Gatimu, a director of the 2 nd

respondent, leased a portion of the suit property measuring

100x100 feet, on which the 2nd respondent operated a

hardware and timber yard. The tenancy relationship was

governed by an agreement entered into on 20th March 1998.

Five years later, the appellant agreed to sell to the respondents

the portion leased to them. Accordingly, the appellant entered

into a sale agreement dated 28th October 2003 with the 2nd

respondent, Waciama Ltd, for sale of a portion measuring

100x100 feet for a sum of Kshs 1,400,000.

3. Prior to the sale agreement, the respondents had paid a sum of

Kshs. 370,000 to the appellant, a sum which was

acknowledged in the sale agreement. Thereafter, and pursuant

to the sale agreement, the 1st respondent and his wife started

paying the purchase price in instalments, paying a further sum

of Kshs. 200,000 to make a total of Kshs. 570,000.

According to the

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 agreement between the parties, the balance of the purchase

price was to be paid on or before 30th June, 2004.

4. It was contended by the respondents and undisputed by the

appellant that in addition to the payments of Kshs. 370,000

and Kshs. 200,000 acknowledged at the execution of the sale

agreement, they had made further payment to bring the total

payment to Kshs. 1,000,000. The respondents asserted that

two months before the completion date of the transaction, the

1st respondent had asked the appellant to accompany him to

their common lawyer, Alex Karanja & Co. Advocates, to make a

final payment, but the appellant had declined to do so. The 1st

respondent left the balance of the purchase price, being

Kshs.400,000, with the advocate and asked the appellant to

collect it, but he never did.

5. While the agreement between the parties was for the sale of a

portion out of Dagoretti/Riruta/3932, it transpired that two

years prior to the execution of the sale agreement, the

appellant had subdivided the land and the said title number

Dagoretti/Riruta/3932 had been closed. Two new titles, L.R

No. Dagoretti/ Riruta/4957 measuring 0.33 hectares and

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 Dagoretti/ Riruta/4956 measuring 0.10 hectares had been

issued. Accordingly, the portion claimed by the respondents, it

emerged, was on L.R. No. Dagoretti/ Riruta/4957.

6. Perhaps as a result of this development, the 1 st respondent had

made a complaint to the police in December 2004, accusing

the appellant of obtaining money by false pretences. The

appellant was arrested and charged with the said offence, but

he was acquitted in the judgment of the trial court dated 7 th

July 2006. He then showed the 1st respondent a portion of land

that he was ready to give him, but the 1st respondent declined.

The appellant then rescinded the sale agreement and asked the

1st respondent to accept a refund of the amount paid towards

the purchase price. The 1st respondent declined to accept it.

7. The record of the trial court indicates that the appellant then

sued the respondents in ELC No. 465 of 2005 seeking eviction

orders against them. Thereafter, during the pendency of ELC

No. 465 of 2005, the appellant filed ELC No. E442 of 2009

seeking, unsuccessfully, a mandatory injunction requiring the

respondents to vacate his property, L.R. No.

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 Dagoretti/Riruta/4957, general damages and the costs of the

suit.

8. In ELC No. 465 of 2005, the respondents had filed a defence

and counterclaim against the appellant, denying the

appellant’s claim and seeking orders:

a) That the plaintiff he compelled to take all the

necessary steps and execute all the necessary
documents to exercise excise transfer the agreed
portion of 100x100sq feet of land being the
portion currently occupied by the defendant
from the plaintiff’s land LR.
Dagoretti/Riruta/4957 and to transfer the same
to the defendant.
b) That this Honourable Court do issue temporary
injunction restraining the plaintiff by himself,
his servants and/or agent from trespassing on
the defendant’s plot or from evicting the
defendant from alienating, transferring,
charging, subdividing, surveying or in any
manner interfering with peaceful possession of
the defendant’s portion of land measuring
100x100sq feet or the defendant’s operations
till disposal of this suit or until otherwise
directed by this Honourable Court.

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 c) That the Honourable Court be pleased to extend
the time within which the parties herein may
obtain Land Control Board Consent to this sale
transaction.
d) That failure of the plaintiff to take all
necessary steps to complete this transaction
including subdivision and transfer within the
extended time, the Deputy Registrar of this
Honourable Court be mandated to do each and
everything necessary action and sign all
documents necessary to complete this
transaction and transfer the portion subject
matter of this suit to the defendant.
e) Costs of this suit be provided for.

9. In his evidence, the appellant confirmed that the respondents

had leased a plot measuring 100x100 feet from him; that they

had thereafter entered into a sale agreement for a plot of the

said dimensions; that the respondents had paid him in bits but

had not completed payment. In cross-examination, he

confirmed that he had sold the plot with the improvements on

it; that he had sworn an affidavit in which he had stated that it

was true that the balance of Kshs. 400,000 was with his

lawyers; and he
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 confirmed that the letter from his advocate dated 8 th April 2004

indicated that he had been paid Kshs. 1,000,000 for the

purchase of the plot. He testified that he had not taken the

respondents to the Land Control Board for consent as he had

rescinded the sale agreement.

10. In his testimony, the 1st respondent confirmed the essential

facts as they emerged from the evidence of the appellant

relating to the lease of the 100x100 feet plot; the agreement for

sale of the said plot out of Dagoretti/Riruta/3932; his

subsequent discovery that the title to the property had been

closed after it had been subdivided; and that the appellant had

indicated in the (criminal) trial court that he still had land to

sell to the respondents. It was the 1st respondent’s testimony

that he had constructed permanent houses on the portion he

had purchased from the appellant, and that he was living

there. He had spent about Kshs.5,000,000 to develop the

property. He had asked the appellant to take him to the Land

Control Board for consent but the appellant had failed to do so.

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11. Upon hearing the parties, the trial court found in favour of the

respondents on their counterclaim and issued the following

substantive orders:

a. The plaintiff is hereby compelled to take all

necessary steps and execute all necessary
documents to excise and transfer the agreed
portion of 100x 100 sq feet of land being
currently occupied by the defendant from the
plaintiffs land known LR No.Dagoretti/
Riruta/4957 and transfer the same to the
defendant.
b. The period for applying for consent of the Land
Control Board is hereby extended by a period of
six months.
c. If the plaintiff does not take all the necessary
steps to complete the transaction including
subdivision and transfer within the extended
time, the Deputy Registrar of this Court is
hereby mandated to sign all necessary
documents to ensure that a plot measuring
100x100ft is excised from LR No.Dagoretti/
Riruta/4957 and transferred to the defendant.

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12. The appellant was also ordered to pay the respondents’ costs of

the suit.

13. The appellant was dissatisfied with the judgment and he filed

the present appeal in which he raised eight grounds of appeal

in the memorandum of appeal dated 6th November 2018. At the

hearing of the appeal before this Court, his learned counsel,

Mr. Kinyanjui, indicated that the grounds had been collapsed

into the following, namely that the trial court erred:

a. in holding that he had received Kshs 1,000,000

from the respondents and that the balance of
Ksh 400,000 was deposited with the 1st
respondent’s lawyers prior to the completion
date, which he has failed to collect to date;
b. in finding that the portion purchased by the 2 nd
respondent fell on L.R, Dagoretti/Riruta/4957
which was the subject of the suit;
c. in finding that the portion claimed by the
respondents is identifiable and can be excised
from L.R. Dagoretti/Riruta/4957;
d. in holding that the appellant has long
recognized the sale agreement between himself
and the respondents and that he never
rescinded the sale agreement;

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 e. in holding that the land transaction was not
void for want of consent of the Land Control
Board;
f. in holding that time was not of essence in the
matter and that the appellant had failed to
prove his case while the respondents had proven
their counterclaim on a balance of probability.

14. In submissions dated 25th April, 2019 in support of the appeal

which were highlighted by his learned counsel, Mr. Kinyanjui,

the appellant submitted that the trial court was wrong in its

finding that he had received Kshs 1,000,000 from the

respondent; that Kshs. 400,000 had been deposited with the

1st respondent’s advocate prior to the completion date; and that

he had been asked to collect it. The appellant submitted that

the respondents were never willing to pay the balance of the

purchase price, and no evidence was ever produced showing

that they attempted to pay it. It is his submission that the

allegation that the respondents had deposited the balance of

Kshs. 400,000 in the offices of Alex Karanja & Co. Advocates

for collection by the appellant was unsubstantiated, and he

never received the letter dated 8th July, 2004 to that effect.

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15. The appellant submits further that specific performance cannot

be enforced since the respondents failed to pay the balance of

the purchase price, nor did they produce any evidence to show

that any amount was paid other than the Kshs. 570,000 he

received at the time of execution of the agreement. It is his

submission that there was a complete breach of the conditions

set in the sale agreement, citing in particular clause 1(iii) which

required that the purchase price be paid on or before 30th

June, 2004.

16. With respect to the trial court’s finding that the property the

subject of the sale agreement was identifiable, the appellant

submitted that at the time of the sale agreement, there was no

property or title referred to as L.R No. Dagoretti/Riruta/3932,

a fact that was admitted by the 2 nd respondent and his

advocate before the criminal court. He submitted that the

learned ‘judge’(sic) before the criminal court held that the

portion claimed by the respondents was unidentifiable. Thus,

in the impugned judgment, the learned judge erred in finding

that a specific portion measuring 100x100ft, which the 2nd

respondent purchased, fell on L.R No. Dagoretti/Riruta/4957.

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17. It is the appellant’s contention further that the sale agreement

was not valid as it was not properly executed and attested to in

accordance with the law. Further, that it became void after the

expiry of 6 months from the date of signing as it did not have

the requisite Land Control Board consent. According to the

appellant, 15 years had passed since the sale agreement was

executed and the respondents had made no application for

extension of time to obtain the said consent from the Land

Control Board. They had also not sought extension of the

completion period in accordance with the terms of the sale

agreement, and it was therefore void. He therefore asked this

Court to set aside the impugned judgment and issue a

mandatory injunction requiring the respondents to vacate his

property L.R No. Dagoretti/Riruta/4957, and to award him

general damages.

18. At the hearing of the appeal, learned counsel for the appellant,

Mr. Kinyanjui, highlighted two issues raised in the appeal, the

first being whether there was a valid sale agreement between

the parties. He reiterated the appellant’s contention that the

sale agreement was executed between the appellant and the 2nd

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 respondent, a body corporate which could only have a binding

agreement if it was signed and sealed with the corporate body’s

seal, which was missing in this case. He cited in support the

case of Queens Pharmaceutical Ltd –vs- RUP Pharm Ltd

[2002] eKLR and submitted that where the seal or the stamp

of the company is missing on an agreement, that agreement is

not valid. In his view, the trial court was wrong in finding that

notwithstanding that there was no seal, the fact that the

appellant had received and accepted money from the 1st

respondent validated the agreement.

19. Mr. Kinyanjui emphasized, secondly, that at the time of

entering into the sale agreement, the property referred to in the

agreement, Dagoretti/Riruta 3932, did not exist. It was his

submission that the agreement was in respect of a land

reference number describing a property that had ceased to

exist two years prior to signing of the agreement. He submitted,

therefore, that the trial court erred in issuing the order for

specific performance, emanating from a sale agreement in

respect of a property which was no longer in existence. He

observed that the 1st respondent had, in his evidence,

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confirmed

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 that the property or the portion which he was occupying had

already been sold to a third party; that if the property had

already been sold to a third party, there was nothing for the

trial court to issue orders of specific performance in respect of.

Further, specific performance being an equitable remedy, it

could only be granted to a party who comes before the court of

equity with clean hands, and as the respondents had not paid

the full purchase price as agreed by the parties, they were not

entitled to the order.

20. When the Court pointed out that, from the evidence, the last

day for payment of the purchase price was 30th June 2004, and

that the whole balance of the purchase price was deposited

with the lawyer representing both parties prior to that date, Mr.

Kinyanjui asserted that in the criminal case against the

appellant, the lawyer had confirmed that payment was not

made; and further, that in his affidavit which also formed part

of the record, the appellant confirmed that the money was

never paid. His submission was that in the absence of full

payment being made and the particular property not being

available for transfer, the order for specific performance could

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not issue.

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21. In response to further questions from the Court, Mr. Kinyanjui

conceded that the property at issue, a specific portion of 100

x100 feet, was leased to the respondents in 1998. He

submitted, however, that at the time the agreement for sale

was entered into between the parties, the appellant had already

sub-divided the property. There was therefore nothing to enter

into an agreement for, or for the trial court to give an order for

specific performance in respect of as, by the time the appellant

entered into the agreement with the 2nd respondent, he knew

he had sub-divided the land. Mr. Kinyanjui submitted that that

was the reason why the issue of misrepresentation came into

play: that from the word go, there was a misrepresentation of

facts by the appellant while entering into the sale agreement.

22. Mr. Kinyanjui nonetheless confirmed that the appellant did

receive the Kshs.1,000,000 from the 1st respondent and his

wife; that he still had the said Kshs. 1,000,000; that as averred

in the appellant’s affidavit, the balance of the purchase price,

being Kshs. 400,000, was being held by the parties’ joint

advocates, the firm of Alex Karanja & Co Advocates.

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23. Mr. Kinyanjui further conceded that under section 3 of the Law

of Contract Act, on a disposition of an interest in land, the sale

agreement must be in writing and signed by the parties. He

maintained, however, that in this case, the agreement was

signed by a director of the 2nd respondent and the appellant,

and since the purchaser was a company, the agreement ought

to have been sealed with the seal of the company.

24. In submissions in response dated 24th July 2019 highlighted by

their counsel, Ms. Chege, the respondents submitted that the

appellant had received Kshs 1,000,000 from the respondents,

and was fully aware that the balance had been deposited with

their joint advocates; that the appellant had confirmed this

both in his own affidavit and his advocates’ letter which formed

part of the record; that the appellant admitted in evidence that

he was selling the respondents the same parcel of land that

they had leased from him; that the appellant had all along held

the agreement for sale between him and the respondents valid,

and he was therefore estopped from raising the issue of its

execution for the first time in submissions; that the trial court

was correct in finding that Land Control Board consent could

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not be applied

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 for due to outstanding issues between the appellant and the

respondents, and that the appellant could not rely on his own

wrongdoing in failing to furnish the completion documents

necessary for the application for Land Control Board consent.

25. In highlighting the respondents’ submissions, Ms. Chege

emphasized that the parcel of land the respondents purchased

from the appellant was the same parcel that they had leased

from him in 1998, and they were still, at the time of hearing

the appeal, in occupation of that parcel having paid the full

purchase price as agreed upon with the appellant; that they

had developed the land parcel and were still in possession of it;

that the parcel of land that the respondents had purchased is

in existence as part of the property now known as

Dagoretti/Riruta/4957; that while the agreement for sale

referred to Dagoretti/Riruta 3932, it turned out that by the

time the agreement was made, the appellant had already

subdivided the property and new parcel numbers had already

been issued. It was her submission that the property that the

respondents purchased still exists as part of Dagoretti

Riruta/4957.

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26. With regard to the execution of the sale agreement, Ms. Chege

submitted that the appellant first raised the issue in his

submissions at the trial court, and it was not part of the issues

for determination before the court. Not having been raised

before the trial court and not being one of the issues for

determination at that point, it cannot be used to vitiate the

agreement of the parties.

27. In response to questions from the court with regard to the

order of specific performance, Ms. Chege conceded that indeed

the issuance of the remedy was rare. She submitted, however,

that the circumstances of this case warranted the grant of the

order. This, she submitted, was on the basis that the parcel

number identified in the agreement was the parcel number

that the appellant confirmed to have been the actual parcel

number for the property occupied by the respondents. Her

submission was that even if the agreement referred to

Dagoretti-Riruta 3932, it was not the responsibility of the

respondents to have provided the proper title number, given

that they were not the party in possession of the title document

for the property. It was her view that the remedy of specific

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performance was warranted since,

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 even though the agreement referred to Dagoretti/Riruta/3932,

it is not in dispute that the parcel occupied and purchased by

the respondents continues to be in existence.

28. Ms. Chege maintained that the evidence on record proves that

indeed the respondents paid the full purchase price; that the

last portion of Kshs. 400,000 was deposited with the parties’

joint advocates and the appellant was expected to go and

complete the transaction by submitting the completion

documents, one of which was the application for Land Control

Board consent. Ms. Chege submitted that the appellant did not

turn up at the advocate’s office, and that is why the parties

were not able to attend before the Land Control Board for the

purpose of obtaining consent. She confirmed, however, that an

application for Land Control Board consent was not prepared

as the appellant did not present himself at the advocates office

to receive the balance of the purchase price, Kshs. 400,000,

and to execute the application for consent and the transfer

forms which would then have enabled the transfer of the

property to the respondents. She submitted, however, that time

for application for Land Control Board consent can be

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extended by the court,

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 which was done in this case, and it is not a factor that would

negate the agreement of the parties.

29. In brief submissions in response, Mr. Kinyanjui contended that

this was one matter that did not meet the minimum threshold

for grant of orders of specific performance; that there must be

special attachment to the land to warrant grant of the orders;

that one must prove that this particular property is unique in

nature; and that it is the only property that (the respondents)

can get for the value paid for it. In this case, these conditions

were not met to warrant the orders of specific performance

being granted, and the only remedy that would be available to

the respondents, according to Mr. Kinyanjui, was perhaps

damages and a refund of the purchase price.

30. We have considered the proceedings and the judgment of the

trial court, appellant’s grounds of appeal, and the respective

submissions of the parties with regard thereto. Four issues, we

believe, arise for determination in this matter:

i. whether there was a valid sale agreement

between the appellant and the 2nd respondent;

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 ii. whether the respondents paid the full purchase
price in respect of the land the subject of the
sale agreement;
iii. whether the land the subject of the sale
agreement was available and whether the
remedy of specific performance was available to
the respondents;
iv. whether the transaction between the parties
was void for lack of land control board consent.

31. We have set out above the evidence before the trial court

which, in accordance with our mandate as enunciated in the

well- known case of Selle & Another vs. Associated Motor

Boat Co. Ltd & Others [1968] EA 123, we shall re-evaluate

as we analyse the issues set out above. Since the issues and

the evidence leading to their proof or otherwise are so

intricately connected, we shall consider them together.

32. As we observed at the beginning of this judgment, the essential

facts of the case are not much in dispute. The respondents

leased premises measuring 100x100 ft in dimension out of

Dagoretti/Riruta/3932 from the appellant. Five years later, the

appellant agreed to sell and they agreed to buy, pursuant to a

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 sale agreement dated 28th October 2003, a property of the same

dimensions, with the 2nd respondent as the purchaser. The

evidence indicates that the subject of the agreement was the

same portion that the appellant had leased to the respondents.

By the time they entered into the sale agreement, the

respondents had paid a total of Kshs. 570,000, a fact that was

acknowledged in the sale agreement.

33. The respondents’ testimony was that they had paid a total of

Kshs. 1,000,000 to the appellant, and had deposited a further

Kshs. 400,000 with their common advocate, Alex Karanja &

Co. Advocates, before the contractual completion date, 30 th

June 2004. The appellant denied receipt of the said Kshs

1,000,000, and further denied that the respondents had

deposited the balance of Kshs 400,000 for him to collect.

34. The appellant’s own evidence, however, gives the lie to his

assertions. Acting on the instructions of the appellant,

purportedly in rescission of the sale agreement between the

appellant and the respondents, the firm of C. W. Njuguna & Co

Advocates, in the letter dated 8th April 2004 addressed to the

1st respondent, stated as follows:

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 “…you both proceeded to the offices of M/S
Karanja & Co. Advocates in the year 2003,
wherein you jointly instructed him to act for
both of you.

To this end you both executed the sale

agreement and you proceeded to intermittently
remit to our client through your joint Advocate
various instalments for the purchase of the
portion of land you were to purchase. Todate
our client has received a total sum of Kshs.
1,000,000. The balance of Kshs. 400,000 todate
continues to be held by your advocate.”

35. At paragraph 9 and 10 of his affidavit sworn on 21 st April 2005

and filed in the High Court in Civil Suit No. 465 of 2005-

Simon Kirui Gathuna v Waciama Timber Hardware Ltd.-,

the appellant deposes as follows:

“9. That on the 28th October 2003, the defendant

through its director David Kivuti Gatimu and I
entered into a written agreement for the
purchase of the agreed acreage and our
advocate as of then was Ms. Karanja & co.
Advocates.
10. That after execution of the sale agreement,
the respondent intermittently remitted various

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amounts of monies, out of which I have todate

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 received a total of Kshs. 1,000,000and the
balance of Kshs. 400,000 continues to be held
by our joint advocate (Ms. Alex Karanja & Co
Advocates.)
36. While the appellant admits on oath that he entered into a

‘written agreement’ and received Kshs. 1000,000 out of a total

purchase price of Kshs. 1,400,000; and that the balance had

been deposited with the advocate acting jointly for him and the

respondents, he still tried to wriggle out of his obligations,

raising two arguments with respect to the validity of the sale

agreement: first, that it was not valid as it was not sealed with

the common seal of the 2nd respondent, and, secondly, that it

was void for lack of Land Control Board consent.

37. Ms. Chege observed at the hearing before us that the argument

with respect to the execution of the sale agreement was only

raised in the submissions before the trial court, and that it had

not been raised in the appellant’s pleadings. In addressing

itself to this issue, the trial court stated:

14. The plaintiff is raising the issue of the

agreement not being sealed with the company
seal for the first time in submissions. The issue

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 of the agreement not being sealed with the
company seal never arose in the pleadings and
this issue cannot be raised in submissions.
Parties are bound by their pleadings and if a
matter is not raised in the pleadings or
evidence, it cannot be raised in submissions.”

38. The trial court relied on the case of Global Vehicles Limited

Vs Lenana Road Motors (2015) eKLR in which this Court

stated:

“Again we must emphasize that the respondent

was obliged, if its defence was that the
agreements were not duly executed or were
otherwise vitiated, to plead the same and give
particulars of the facts vitiating the agreement.
That was never done. The issue of the validity of
the agreements was not raised expressly or even
obliquely by any parties in their pleadings.
Order
2 Rule 4 of the Civil Procedure Rules obliged the
respondent to specifically plead facts, which it
alleged made the appellant’s claim
unmaintainable. This, the respondent did not
do, and having failed to satisfy the
requirements as to pleadings it could not

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purport to lead evidence to prove facts that were
contrary to its pleadings. It was clearly
misdirection on the part

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 of the judge to rely on issues that were not
pleaded and constitute them the basis upon
which the suit turned.”.

39. The trial court concluded, a conclusion that we have no

difficulty in affirming, that:

“The plaintiff has all along recognised the

agreement the basis of which he received
payments. He is now estopped from attacking it
on grounds that it was not sealed with the
company seal. I find that the agreement signed
by the first plaintiff on behalf of the second
defendant was valid.”

40. The second argument relating to the validity of the sale

agreement revolves around the lack of Land Control Board

consent, with the appellant contending that the agreement was

void for lack of Land Control Board consent. This argument, we

observe, is a favourite of vendors intent on weaseling out of

their contractual obligations. The trial court addressed the

argument in two ways. It observed, first, that there was no

evidence adduced by the appellant that the land in issue falls

within an agricultural area, and a transaction in respect

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thereof requires

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 consent from the Land Control Board. While noting, however,

that the respondents had, in their counterclaim, sought

extension of time for obtaining the consent, the trial court

found that the agreement for sale was not void for want of

consent, and proceeded to extend time for obtaining consent in

its final orders in exercise of powers granted to the court under

section 8 of the Land Control Act.

41. We find that, in the circumstances of this case, there is no

basis for faulting the finding and orders of the trial court in

this regard. As this Court observed in Aliaza v Saul (Civil

Appeal 134 of 2017) [2022] KECA 583 (KLR) (24 June 2022)

(Judgment):

“The failure on the part of the respondent to

obtain the necessary consent from the Land
Control Board within the required period of six
(6) months to enable the appellant transfer the
suit land into his name does not render the
transaction void. Equity and fairness, the
guiding principles in Article 10 of the
Constitution, require that the Land Control Act
is read and interpreted in a manner that does
not

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 aid a wrongdoer, but renders justice to a party in
the position of the appellant.”
42. The facts of this case echo, in many respects, the facts in

Aliaza v Saul above. The appellant in this case leases a

defined portion of land to the respondents; thereafter agrees to

sell it to them; receives the purchase price, then begins to

invent all manner of reasons, including his own failure to

execute the forms necessary for the application for Land

Control Board consent, to avoid his obligations. The trial court,

in our view, correctly found that the issue of Land Control

Board consent was not a basis for avoiding the appellant’s

obligations, and granted the orders for extension of time. This

issue must also be determined in the negative, and in favour of

the respondents.

43. The final issue is whether the trial court erred in granting

orders of specific performance to the respondents. Coupled

with this is the question whether the trial court issued an

order of specific performance in respect of land that was not in

existence.

44. The appellant’s counsel, Mr. Kinyanjui, made a fascinating and

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telling submission before us, which we have captured earlier in

this judgment, the essence of which was that the appellant

had,

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 ‘from the word go’, deliberately misrepresented to the

respondents the position with respect to the land the subject of

the agreement. The misrepresentation, admitted with so much

chutzpah for the appellant, was that while entering into a sale

agreement in respect of a portion of L. R.

Dagoretti/Riruta/3932, the appellant knew that he had

subdivided the said land, the title in respect thereof had been

closed, and two new titles had been issued.

45. The respondents, however, were still in possession of the parcel

of 100x100ft that they had leased from the appellant, which

they intended to purchase, had entered into an agreement in

respect of the said parcel with the appellant, and had paid the

full purchase price in respect thereof. In determining this issue

in favour of the respondents, we can do no more than quote

what the trial court said in respect of the appellant’s

contention that the land the respondents had purchased was

no longer in existence:

“…the plot which the 2nd defendant purchased

through the first defendant was described as a
portion measuring 100x100ft out of LR

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Dagoretti/Riruta/3932. There is evidence that
the first defendant had leased the plot which he
later decided to purchase in his company’s
name. He had leased the particular portion as
from 1998. As at the time of lease, the land part
of which he had leased was on LR
Dagoretti/Riruta/3932. This parcel was later
subdivided and the portion where the first
defendant had leased became LR
Dagoretti/Riruta/4957. The second defendant
was purchasing the portion with the
improvements erected and being thereon. The
subdivision was carried out in 2001. The
agreement was made in 2003. It was therefore
clear that title No. LR Dagoretti/Riruta/3932.
was non-existent as it had ceased on (sic) exist
on subdivision but the specific portion which the
second defendant purchased was still there and
that is the portion which fell on No. LR
Dagoretti/Riruta/4957 which is the subject of
this suit. The plaintiff cannot therefore claim
that the second defendant purchased a non-
existent land. If the second defendant bought a
non-existent land, why are the defendants being
asked to vacate from LR
No.Dagoretti/Riruta/4957.

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13. It is clear that LR No.
Dagoretti/Riruta/4957 is bigger than what the
defendants are

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 occupying. The defendants are not claiming the
whole of it. They are claiming a plot measuring
100x100ft which they purchased. This portion
is identifiable and can be excised from LR
No.Dagoretti/Riruta/4957.” (Emphasis added)

46. Having found that the respondents had entered into a valid

agreement for sale of a specific, identifiable portion of land

measuring 100x100 feet out of Dagoretti/Riruta/4957, and

that they had paid the full purchase price in respect thereof,

the trial court reached the conclusion, again correctly in our

view, that they were entitled to the order of specific

performance that they sought in their counterclaim.

47. Mr. Kinyanjui submitted before us that the remedy of specific

performance is available only in rare cases, and that being an

equitable remedy, it was not available to the respondents as

they had not paid the full purchase price for the subject plot.

As the evidence analysed in this judgment shows, however, the

respondents had paid or made available the full purchase

price, a fact that was fully acknowledged in writing by the

appellant and his advocates. In the circumstances, we are

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satisfied that

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 the trial court properly reached the conclusion that the

circumstances of the case before it were such as to entitle the

respondents to an order of specific performance.

48. We are, in the result, unable to find a basis for interfering with

the very well-reasoned judgment of the trial court. We find that

the present appeal is without merit, and it is hereby dismissed

with costs to the respondents.

Dated and delivered at Nairobi this 25th day of January,2024.

S. ole KANTAI

...................................
JUDGE OF APPEAL

MUMBI NGUGI

………………..………………
JUDGE OF APPEAL

M. GACHOKA, CIArb, FCIArb

………………………….……………..
JUDGE OF APPEAL

I certify that this is

a true copy of the original.

Signed
DEPUTY REGISTRAR

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