1.The appeal before us is a 1st appeal. Our mandate as a 1st appellate court is as enunciated in several decisions of this Court including Selle vs. Associated Motor Boat Co. of Kenya & others  EA 123 wherein it was stated:
2.The suit, the subject of this appeal was commenced by way of a plaint dated 10th August, 2006 filed by Caroline Njeri Mwicigi (the 1st respondent herein and the then plaintiff). In the plaint, Monohar Singh Sagoo and Surinder Kaur Sagoo (the appellants herein) were named as the 1st and 2nd defendants respectively whilst Pramod Patel, an advocate of the High Court of Kenya (the 2nd respondent herein) and the firm of Kandie Kimutai (the 3rd respondent herein) were named as the 3rd and 4th defendants respectively. The 2nd respondent acted for the appellants in the transaction whilst the 3rd respondent was one of the three lawyers who acted for the 1st respondent having taken over from the firm of AGN Kamau & Company Advocates who had drawn the sale agreement dated 28th June, 2005 between the appellants and the 1st respondent.
3.In the plaint the 1st respondent averred that on 28th June, 2005, she entered into a sale agreement with the appellants for sale of her property known as LR 7785/792 (the suit property); that subsequently, the appellants breached the sale agreement; that on 10th November,2005, she wrote to the 3rd respondent, her lawyer then, complaining of the breach of the sale agreement by the appellants; that on 24th November, 2005, the 3rd respondent issued 21 days’ notice, being the notice of completion to the appellants; that on 26th November, 2005, the 2nd respondent, in his capacity as counsel for the appellants acknowledged receipt of the completion notice; that on 19th December, 2005, she again wrote to the legal firm of the 3rd respondent instructing them to demand for the return of her original title documents and that the appellants together with the 2nd respondent in collusion with the 3rd respondent caused the registration of the transfer of the suit property to be effected. The appellant amended her plaint on 18th April, 2011 so as to bring in the Attorney General (on behalf of the Registrar of Titles as the 5th defendant, now the 4th respondent). The orders sought in the amended plaint were as follows:
4.The 1st and 2nd appellant and the 2nd respondent filed a joint statement of defence dated 22nd September, 2006 which was subsequently amended on 5th July, 2013 in which the trio averred that the sale agreement of 28th June, 2005 was varied by a subsequent agreement dated 1st November, 2005; that whereas they received the notice of completion dated 24th November, 2005, they complied with the contents thereof; that they were not privy to any instructions given to the 3rd respondent and denied having been in collusion with the 3rd respondent, the then 1st respondent’s lawyers, in effecting an unlawful transfer of the 1st respondent’s property.
5.The 1st respondent filed a reply dated 12th July, 2013 to the amended defence of the appellants and the 2nd respondent joining issue with the appellants.
6.The pleadings having come to a close, the trial proceeded before Bor, J who in a judgment dated 25th January, 2018 found in favour of the 1st respondent. It is this finding that provoked the instant appeal. In the Memorandum of Appeal dated 21st November, 2018, the appellant listed 8 grounds of appeal which we shall advert to as condensed in the appellant’s written submissions dated 18th November, 2019.
7.On 29th September, 2021, the appeal came up before us for plenary hearing vide a virtual platform due to the Covid 19 Pandemic and the established protocols thereto. Mr. Inamdar, learned counsel for the appellants in arguing the appeal, relied on the appellant’s written submissions as aforesaid as well as his list of authorities. It was contended on behalf of the appellants that the suit property was transferred to the appellants vide a transfer dated 19th December, 2005; that the 1st respondent challenged the transfer on the basis that she had rescinded the contract of sale; that when the matter proceeded to trial the 3rd and 4th respondents did not participate as Mr. P.K Kandie, the proprietor of the 3rd respondent, an advocate retained by the 1st respondent had since died; that at the time the 1st respondent executed the sale agreement on 28th June, 2005, she was using the services of AGN Kamau, Advocate, and the appellants were then represented by Pramod Patel, the 2nd respondent; that the terms of the contract were inter alia, the purchase price was Kshs 10 million of which the sum of Kshs 1 million was to be paid directly to the 1st respondent as a deposit, upon which the original title was released to the 2nd respondent on the professional undertaking to hold it pending completion; that consequent to the execution of the agreement, the 1st respondent appointed the 3rd respondent as his advocate and vide the 2nd respondent’s letter dated 19th August, 2005, a new completion date of 5th October, 2005 was agreed upon. In particular, reference was made to the letter of 19th August, 2005 addressed to Messrs Kandie Kimutai & Co. Advocates whose contents were as follows:
8.Mr. Inamdar reiterated that although the 2nd contract entered into by the parties was dated 1st November, 2005, it had a completion date of 5th October, 2005 and that the dating of the contract was an error as the 1st respondent admitted in cross-examination that she signed the 2nd contract, albeit being undated. It was contended further that although the 3rd respondent issued a notice of completion dated 24th November, 2015, it was not clear whether the notice of completion was invoking the 1st or 2nd contract; that contrary to the judge’s finding, the 21 days of completion would mean that the notice would expire on 16th December, 2005 and not on 25th December, 2005 as the judge had found; that at the time of the notice (24th November, 2005) the 1st respondent was not in a position to complete as the original rates clearance certificate had expired on 18th November, 2005; that the 2nd respondent had given a professional undertaking on 5th November, 2005 to the 3rd respondent who in turn, on 8th November, 2005 handed over an executed transfer together with a valid rates clearance certificate which expired on 18th November, 2005. In support of their position that a vendor who issues a notice of completion must be in a position to complete, the decision of Boniface Kevin Omondi & Another vs. Malborough Properties Ltd  eKLR was called to aid. In that decision , Mabeya, J. held:
9.The appellants’ argument is that a valid clearance certificate was furnished on 16th December, 2005 to the 2nd respondent; that the 3rd respondent in a handwritten letter dated 23rd December, 2005 requested and received an advance of Kshs 20,000.00 from the 2nd respondent to pay Mr. Gichere as “part of his commission ”, hence the 1st respondent is estopped from resiling on her contractual obligation as these actions on the part of the 3rd respondent were tantamount to waiver of the completion notice; that application for the registration of the transfer was lodged on 19th December, 2005; that although the stamps on the transfer are dated 10th November, 2005, the stamp duty had been paid by 23rd November, 2005,whilst the date of registration was 19th December, 2005 and “acceptance of valuation is shown as 23rd January, 2006”; that the balance of the purchase price was paid on 23rd January, 2006, well within the 7 days of registration of the transfer and that the allegation(s) of fraud against the appellants were not proved to the required standard. In the written submission, counsel enjoined us as follows:
10.Mr. Odera for the 2nd respondent fully associated himself with Mr. Inamdar’s submissions and added that the 1st respondent was bound by the actions of her advocate, the 3rd respondent. Further, that a notice of completion can be waived by implication as was the case here, the 3rd respondent having done so on behalf of his client, the 1st respondent.
11.Miss Njoroge for the 1st respondent relied on the appellant’s submissions filed on 7th November, 2019. She submitted that although the 1st respondent had entered into a sale agreement with the appellants, the sale was rescinded pursuant to a notice issued under the Law Society conditions of sale; that in spite of the rescission, the appellants proceeded to transfer the property unto themselves; that to-date, the 1st respondent had not received the balance of the purchase price; that following the 2nd respondent’s professional undertaking on 5th November, 2005 for the payment of the balance of the purchase price, the 3rd respondent forwarded the completion documents to the 2nd respondent on 8th November, 2005 cautioning that the date of expiry of the rates clearance certificate was on 18th November, 2005. She posited that the transfer could not have been registered on 19th December, 2005 and stamp duty assessed on 23rd January, 2006. Finally, counsel contended that condition 22 (5) of the Law Society conditions of sale provided for forfeiture of the 10% deposit in the event of breach of a sale agreement.
12.In a brief rejoinder, Mr. Inamdar reiterated that the notice to complete was served after the rates clearance certificate had expired; that a professional undertaking is between advocates, hence it was not for the 1st respondent to raise the issue that the 2nd respondent gave a professional undertaking without being placed in funds; that the balance of the purchase price was paid on 23rd January, 2006 which was within 7 days of registration of the transfer.
13.Having considered the record, the written and oral submissions made before us and the authorities relied upon in light of our mandate, it is our view that the facts surrounding the dispute are fairly straight forward. It is not in dispute that the 1st respondent entered into a sale agreement dated 28th June, 2005. The completion date was given as 15th September, 2005. The purchase price was Kshs 10,000,000.00 out of which a sum of Kshs 1,000,000.00 was paid to the 1st respondent as a deposit. Paragraph 4 of the sale agreement provided that the sale was subject to the Law Society Conditions of Sale (1989 conditions). Further, paragraph 12 of the agreement of sale provided that:
14.It would appear that the terms of the sale agreement were not adhered to hence the issuance of a notice of completion dated 24th November, 2005 issued by the 3rd respondent on behalf of the 1st respondent. It is instructive to note that this was after the completion date of 15th September, 2005 had long expired. The notice of completion had been prompted by the 1st respondent’s letter dated 10th November, 2005 to his then advocates, the 3rd respondent. The letter stated:
15.Consequent to the instructions given by the 1st respondent who was expressing her misapprehension as to whether the 2nd respondent was in possession of the balance of the purchase price of Kshs 9 million, the notice to complete dated 24th November, 2005 was addressed to the 1st and 2nd appellants and marked for the attention of the 2nd respondent. It stated:
16.The 2nd respondent, as the appellant’s counsel responded to the notice of completion two days later vide a letter dated 26th November, 2005, addressed to Messrs. Kandie Kimutai & Co. Advocates. In his letter, he stated that he would be placed in funds “… on Tuesday, 29th November, 2005”.
17.It is noteworthy to state that as at 26th November, 2005, the 2nd respondent was not in possession of the balance of the purchase price and he informed the 3rd respondent that he would be put in funds on 29th November, 2005. This is notwithstanding the fact that on 5th November, 2005, the 2nd respondent had written the following:
18.In short, the 2nd respondent was not in funds as at 5th November, 2005 and neither was he in funds by the 26th November, 2005. The 2nd respondent’s letter of 26th November, 2005 was followed by another letter dated 9th December, 2005 addressed to the 3rd respondent wherein the 2nd respondent “confirmed that he had been put in funds”. He stated:
19.Indeed, it was on the basis of falsehood perpetrated by the 2nd respondent on 5th November, 2005 by giving a professional undertaking, yet he had not been placed in funds that the 1st respondent’s title as well as a valid rates clearance certificate was given to the 2nd respondent on 8th November, 2005. The rates clearance had a validity period of upto 18th November, 2005. As no registration was undertaken, the rates clearance certificate expired on 18th November, 2005.
20.The actions of the 3rd respondent were frowned upon the 1st respondent in her letter dated 13th January, 2006 addressed to Pramod Patel Advocate. She wrote:
21.The above letter is the second warning given to the purchasers and their advocates. No doubt, the 3rd respondent acted in an unprofessional manner in going against his client’s (the 1st respondent’s) instructions. The letters from the 1st respondent of her rescission of the contract were emphatic. It is on the basis of the 3rd respondent’s actions of going against the 1st respondent’s instructions that the appellants argue that the notice of completion had been waived but, did that mean that the appellants with the assistance of the 2nd respondent could use trickery to have the 1st respondent’s suit property transferred to the appellants? It is this lack of candidness on the part of the appellants together with the 2nd respondent that we think will determine the outcome of this appeal. He who comes to equity must come with clean hands.
21.In our view, the appellants set out to purchase the suit property but did not have funds which they could have placed with the 2nd respondent. The sale agreement was dated 28th June, 2005. The completion date was given as 15th September, 2005. Again, it would appear that another agreement was entered into on 1st November, 2005 (the second agreement). Its completion date was given as 5th October, 2005, a date long past, given that the second sale agreement is dated 1st November, 2005. Although the appellants contended that the second agreement gave the completion date as 5th October, 2005, this agreement was disowned by the appellant. Mr. Inamdar was of the view that it was not clear whether the completion notice of 24th November, 2005 was in respect of the agreement of 26th June, 2005 or 1st November, 2005 which had a completion date of 5th October, 2005. The 21 days given in the notice of 24*th November, 2005 was after the expiry of the two completion dates, be it 15th September, 2005 and/or 5th October, 2005 but suffice to state that the period of completion started running from 24th November, 2005. It therefore does not matter whether there was a second agreement dated 1st November, 2005 with a completion date of 5th October, 2005. In our view, nothing turns on the contention that it was not clear whether the completion notice was in respect of the agreement of 26th June, 2005 or 1st November, 2005. The question is whether the appellants were in a position to complete the transaction even with an extended period of time.
22.It is clear from the sequence of events that whereas the 1st respondent was willing and ready to sell the suit property, the appellants were not on the same page with her. The 1st respondent entered into the sale agreement dated 28th June, 2005. The completion date was 15th September, 2005. The original title document for the suit property as well as a valid clearance certificate were duly handed over to the 2nd respondent on 8th November, 2005, the appellant’s lawyers based on their undertaking of 5th November, 2005. Having complied with her obligations, the least the 1st respondent expected was the appellants to fulfil their part of the bargain. When her expectation was not met, she caused her lawyer, Merssrs Kandie Kimutai & Co. Advocates to issue a Notice of Completion dated 24th November,2005. The notice was for 21 days and it was to expire on the 16th December, 2005. On receipt of the Notice of Completion, the 2nd respondent vide a letter dated 26thNovember, 2005 undertook to complete by 29th November, 2005**. In his letter dated 26th November, 2005, he stated:
23.It is clear beyond per adventure that in the said letter, the 2nd respondent indicated that he had not been placed in funds, a clear admission that the professional undertaking of 5th November, 2005 was based on falsehood, deceit and deception.
24.In his letter of 26th November, 2005, the 2nd respondent undertook to complete by 29th November, 2005. Again, that was not to be. On 19th December, 2005, the 1st respondent called for the return of her original title. Her request for the return of her original title fell on deaf ears and in spite of lack of confirmation of placement of funds by the 29th November, 2005 as undertaken by the 2nd respondent in his letter of 26th November, 2005, the second respondent proceeded to present the transfer for registration on 19th December, 2005.
25.In our view, it was callous and unprofessional for the 2nd respondent to have presented the transfer documents for registration and yet he was not in possession of the balance of the purchase price. Indeed, this lack of professionalism is evident right from the time (5th November, 2005) the 2nd respondent called for the original title and the transfer documents as well as a valid rates clearance certificate on the pretext that he was in possession of the balance of the purchase price.
26.The appellants’ position was that the agreement of 28th June, 2005 had been varied by another agreement dated 1st November, 2005. The 1st respondent denied having been a party to this agreement. In particular, she was categorical that she did not append her signature on this agreement. We may not know exactly the origin of this agreement, but it is curious to note that it had a completion date of 5th October, 2005, a date long past from the date it is alleged it was entered into, that is 1st November, 2005. However, in our view, nothing turns on this purported agreement as the completion date given therein (5thOctober, 2005) was equally disregarded. It does not matter in our view that the rates clearance certificate given to the 2nd respondent on 8th November, 2005 had expired as what is material is that the appellants had been given the original certificate of title, a transfer duly signed by the 1st respondent and a valid clearance certificate which lapsed in the hands of the 2nd respondent.
27.There was also the contention by the appellants that the notice of completion dated 24th November, 2005 had been waived by the letter from Kandie Kimutai of 14th December, 2005 and 28th January, 2006. Again in our view, nothing turns on this. The crux of the matter is that the appellants had the property transferred unto themselves through deceit and without them being in a position to pay the balance of the purchase price. We think that the 1st respondent performed her part of the deal and the delay in finalization of the transaction was solely caused by the appellants. We do not see how and why the appellant is blaming the 1st respondent when they were given adequate time and opportunity to pay the balance of the purchase price.
28.The sum of Kshs 8,970,000.00 was subsequently deposited in Court and Notice of payment into court is dated 22nd September, 2006. The said money is still in court. We can only say this was long in coming. The 1st respondent sought to sell her property in an uptown estate for a total purchase price of Kshs 10 million. This was in the year 2005. Today, the value of the property given inflationary trends has greatly increased. The sale agreement was not breached by her but by the appellants whom as we have stated earlier, entered into a sale agreement without being in possession of the full purchase price and used all the tricks in the book to purport to transfer the suit property unto themselves.
29.One more issue deserves our comment. The appellants’ position is that they presented the transfer for registration on 19th December, 2005 and that this is the date the conveyance was registered. It is however curious to note that the assessment of stamp duty was done on 23rd January, 2006. Is that to say the transfer was effected before payment of stamp duty? In our view, all these lapses do not place the appellants in good stead. There was too much that was going on, including the possibility of defrauding the collector of stamp duty, which again clearly reflects on the credibility of the appellants and their Advocates. In our view, the 1st respondent legally and correctly was entitled to rescind the contract due to the acts and omissions of the appellants. We cannot in any way fault the 1st respondent on the manner she acted in the circumstance narrated before us. We think the appellants are the authors of their alleged misfortune.
30.We believe we have said enough to demonstrate that this appeal is without merit. It is hereby dismissed with costs to the 1st respondent.It is so ordered.
DATED AND DELIVERED AT NAIROBI THIS 4TH DAY OF FEBRUARY, 2022.M. WARSAME..................................JUDGE OF APPEALF. SICHALE..................................JUDGE OF APPEALH. A. OMONDI..................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR