The Court of Appeal has warned land buyers that they cannot demand completion of a property sale while failing to honour their own contractual obligations, stressing that specific performance is not an automatic legal right.
The court issued the warning while determining a land dispute in which a purchaser sought an order compelling the seller to complete a transaction despite having paid only part of the agreed purchase price.
Specific performance is an equitable remedy through which a court can order a party to fulfil the terms of a contract instead of simply awarding financial compensation.
In its decision, the court stressed that anyone seeking such an order must demonstrate that they have performed the essential terms of the agreement or are ready and willing to do so.
The dispute also involved the purchaser’s attempt to subdivide and sell portions of the property before legally acquiring title to the land.
The court found that the conduct amounted to a breach of the agreement, reinforcing the principle that parties cannot treat contractual obligations as optional while seeking favourable orders from the courts.
The judges further found that both the buyer and seller had breached their respective obligations.
While the purchaser had failed to pay the outstanding balance within the agreed period, the seller had also failed to provide certain documents required for completion of the transaction.
The court therefore rejected the idea that one party could simply demand that the other complete the deal while overlooking its own contractual failures.
The ruling also addressed the legal doctrine of lis pendens, which generally restricts dealings with disputed property while litigation is ongoing to prevent parties from undermining the court process.
The judges clarified that the protection provided by lis pendens ultimately depends on the outcome of the underlying dispute. A party that loses the substantive case cannot automatically rely on the doctrine to invalidate dealings with the property that occurred during the litigation.
The court also highlighted the importance of evidence when determining financial claims.
It noted that the amount ultimately recoverable is determined by what is established through evidence, rather than simply the figure contained in pleadings. An admission by a witness can, in appropriate circumstances, establish that a particular amount was received.
The decision serves as an important reminder to both land buyers and sellers that specific performance is an equitable remedy. A party asking the court to compel completion must approach the court with clean hands and demonstrate compliance, or genuine readiness to comply, with the essential terms of the agreement.
For Kenyans entering land transactions, the ruling underscores the importance of paying the agreed purchase price within the stipulated period, meeting contractual requirements, retaining clear documentary evidence and avoiding attempts to sell, subdivide or otherwise deal with property before obtaining the legal right to do so.
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