Wakilii

Shah v Khan (Civil Appeal No. 4 of 1948)

East African Court of Appeal · [1948] EACA 8 · 1948 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from decision of H.M. Supreme Court of Kenya dismissing suit for specific performance as premature
Decision
Respondent ordered to give vacant possession and transfer the premises to the Appellant on payment of the balance of the purchase price

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

A purchaser seeking specific performance must generally tender a conveyance to the vendor for execution, but a vendor may waive this formality expressly or by conduct. Where the vendor occupied premises contrary to the agreement, refused to give vacant possession even if the balance was paid and a conveyance tendered, and failed to support her defence with evidence, she waived the requirement of tender. The suit was not premature.

Outcome

Respondent ordered to give vacant possession and transfer the premises to the Appellant on payment of the balance of the purchase price

Facts

On 22 January 1946, the appellant agreed to purchase property in Park Road, Nairobi, from the respondent for Sh. 27,500. The appellant paid a deposit of Sh. 7,500 and deposited the balance of Sh. 20,000 with his advocate. The agreement provided that on tendering a conveyance, the appellant would receive vacant possession. The building was not completed at the time of agreement. The appellant requested the respondent to finish the work. The respondent went into personal occupation of the premises in April 1946. The appellant's advocate sent formal notice on 10 April 1946 calling for completion and vacant possession by 15 April 1946. No reply was received. The appellant filed suit for specific performance. The respondent's defence alleged no conveyance had been tendered, that she had offered vacant possession but occupied the premises to avoid loss of interest, and that she was willing to complete on obtaining suitable accommodation. The trial judge dismissed the suit as premature for failure to tender a conveyance.

Issues

  1. Whether a purchaser seeking specific performance must tender a conveyance to the vendor for execution before commencing proceedings.
  2. Whether the vendor's conduct waived the formality of tender of a conveyance.

Orders

  • Appeal allowed with costs in this Court and in the Court below.
  • Judgment of the Supreme Court of Kenya set aside.
  • Respondent ordered to give vacant possession of the premises on payment of the balance of the purchase price.
  • Respondent ordered to transfer the premises to the Appellant by a sufficient instrument.
  • No order as regards damages as no evidence was tendered by the Appellant as to the extent of any damage.

Rules and key headnotes

Specific Performance — Vendor and Purchaser — Tender of Conveyance
A purchaser seeking specific performance of an agreement for sale of land must generally tender a conveyance to the vendor for execution before commencing proceedings, but the vendor may waive this formality either expressly or by conduct.
Specific Performance — Waiver of Formality — Vendor's Conduct
Where a vendor refuses to give vacant possession even if the balance of the purchase price and a conveyance are tendered, and indicates by her pleadings that tender of a conveyance would be futile, she has waived the requirement that the purchaser tender a conveyance before seeking specific performance.
Vendor and Purchaser — Concurrent Obligations — Payment and Possession
Under an agreement for sale of land, payment of the balance of the purchase money by the purchaser and delivery of vacant possession by the vendor are transactions to be performed concurrently unless the agreement provides otherwise.

Legislation cited (1)

  • Indian Transfer of Property Act 1882 s.55(1)(d)

Cases cited (1)

  • Ma Hnit v Maung Po Pu (1920) 55 Indian Cases 591

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Shah v Khan (Civil Appeal No. 4 of 1948) [1948] EACA 8 (1 January 1948)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.