EDWARD GITAHI KIHIA V. THOMAS CAROLL

JUDGMENT OF THE COURT

Edward Kihia, the appellant, was the registered proprietor of NAKURU MUNICIPALITY BLOCK 18/78 (suit property). The appellant had taken a loan facility amounting to Kshs. 975,000 from Kenya Commercial Bank (KCB). Unfortunately, after sometime, he was unable to service the loan, consequently KCB commenced the process of realizing the security. In a quick action to safeguard his interests, the appellant approached KCB and proposed to sell the suit property by private treaty for Kshs. 820,000. KCB accepted his offer on condition that he shall make a further proposal on how to pay the remaining balance of the loan.

The appellant then engaged the services of Muigai Commercial Agencies Ltd (Muigai) to solicit for prospective buyers. The agency then fronted the respondent, an Irish national who was married to a Kenyan lady, as a prospective buyer. As a result the parties herein entered into two contracts. The first, which was dated, 21st July 2003 provided in part as follo…