The Equitable Remedy of Specific Performance of Contracts of Sale of Land in Kenya

Abstract

This paper is about the equitable remedy of specific performance of contracts of Sale of Land in Kenya. It focuses attention on those factors which affect the granting or refusing of the remedy of specific performance in contracts of Sale of Land. As such it is assumed that the reader is familiar with the general principles of the remedy of specific Performance in general since most attention in this paper is restricted to contracts of sale of land. Certain aspects of the remedy of specific performance are omitted. What are the formalities or requirements that must be satisfied by parties to a Contract for Sale of Land and what would be the effect of not meeting those requirements on the Contract both at law and in equity? To what extent do the courts in Kenya adhere to fulfilment or satisfaction of those requirements before they can enforce the contracts? Broadly speaking the discussion is divided up into four parts all of which develop the discussion set out above, namely an examination of the factors which affect the granting or refusing of specific performance of contracts of Sale of Land, and the effect of such factors on the validity and hence the enforcement of such contracts. Part I attempts an examination of the General nature of Contracts of Sale of Land, their distinction from the other contracts of sale and why the remedy of specific performance is almost invariably granted for such contracts. The part also deals with such matters as Jurisdiction to grant the remedy and the means of enforcing the order. Parts II, III and IV collate some of the most important factors that affect specific performance. In each of these parts there is an examination of the legal issues which the Courts have dealt with when faced with the task of deciding on the enforceability of a contract entered into under certain conditions.