The buyer had paid most of the agreed price and wanted the seller compelled to transfer the plots. The signed note, however, required payment of the balance within forty-two days. The evidence did not show that he met that obligation.
Kivungi v Mangenge [2024] KECA 1755 (KLR), Civil Appeal 22 of 2019, was decided by the Court of Appeal at Nairobi on 6 December 2024. The buyer's appeal succeeded only far enough to obtain a refund order.
The signed note mattered alongside the agreement
The parties agreed on a KSh 800,000 purchase price. The seller acknowledged receiving KSh 540,000, with a signed note setting out when the remaining KSh 260,000 was to be paid.
The buyer later asserted that he paid another KSh 100,000 and tried to pay the final balance, but the seller avoided him. The seller disputed that additional payment and said the buyer had not complied with the agreed period.
She eventually instructed advocates to communicate rescission. The buyer sued for specific performance, possession and damages rather than expressly pleading an alternative refund.
The trial court rejected his claim. On appeal, he challenged the payment findings and the refusal to grant either the land or repayment.
Part payment did not establish readiness to complete
The Court of Appeal found that the forty-two-day requirement was supported by the signed note. Even allowing the buyer the benefit of his disputed later-payment account, that payment would have been outside the agreed period.
More importantly, he did not produce evidence showing that he had tendered, or was able to tender, the outstanding balance. The court upheld the finding that he had breached the agreement.
Paragraphs 18–23 explain why specific performance remained unavailable. It was a discretionary remedy, and the claimant's own performance was relevant to whether the seller should be compelled to complete.
Paying a substantial proportion of the price was not treated as equivalent to meeting the whole payment obligation.
The refund issue had actually been argued
The absence of an express refund prayer created a separate difficulty. The seller relied on the principle that parties are bound by their pleadings.
But the admitted deposit appeared in the pleadings, witness material and submissions. The parties had addressed whether it should be returned, and the trial judge had acknowledged that refund was the available remedy while declining to order it because it had not been specifically requested.
The Court of Appeal considered the issue to have been left before the trial court for decision. On that case-specific basis, it held that repayment should have been ordered.
This was not a general invitation to omit alternative remedies from a plaint. It depended on the course the actual case had taken and the seller's admission of receiving the deposit.
The amount and interest condition were precise
The appeal was allowed only to order refund of KSh 540,000, not the larger amount asserted by the buyer. Payment was required within sixty days from delivery of judgment.
If payment was not made within that period, the sum would attract interest at twelve percent per annum from the judgment's delivery date. The order did not say interest would start only on the sixty-first day.
Each party was to bear their own appeal costs. Specific performance remained refused, so the buyer did not obtain the plots.
The distinction between an order to refund and actual recovery remains important. The retained evidence does not establish whether the seller complied.
Source inconsistencies do not change the recorded award
The judgment uses differing March dates for the agreement and includes a mistaken balance figure in one passage. This explanation does not choose an unsupported corrected date or rely on the apparent arithmetic error.
The signed payment-period issue, refusal of specific performance and final KSh 540,000 refund order are the bounded findings described here.
Questions before insisting on transfer
- What do signed acknowledgements or later notes say about payment dates?
- Is there evidence of actual tender, rather than an assertion of willingness to pay?
- Which payments are admitted and which require proof?
- Has an appropriate alternative remedy been expressly considered in the litigation?
A Kenyan advocate should assess those questions before treating a large deposit as a guarantee of transfer or a successful refund recovery.
Screening can organise the payment questions
ArdhiScore screening can help organise available source-linked information and its dates. It cannot establish that money was tendered, guarantee a remedy, determine title or boundaries, or replace an official search and Kenyan legal advice.
Explore ArdhiScore screening and its limits.
This is historical analysis, not legal advice or present ownership information. Retained source research on 11 September 2026 located no later related appeal, review or stay, without establishing the absence of further proceedings.
Primary decision
Read the judgment. See paragraphs 1–6, 18–23, 24–31 and the operative refund and costs orders at 32–33.