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Toshike Construction Company Limited v. Harambee Co-operative Savings & Credit Society Limited

(2019) JELR 94851 (CA)

Court of Appeal  •  Civil Appeal 51 of 2018  •  21 Jun 2019  •  Kenya

Philip Nyamu Waki, Daniel Kiio Musinga, Stephen Gatembu Kairu



This appeal challenges the exercise of judicial discretion by Tuiyot, J. who, on 12th October, 2017 set aside the judgment of Mabeya, J. made on 19th December, 2012 in default of the respondent entering appearance or filing defence. It also challenges the finding that the respondent was entitled to the order for setting aside ex debito justitiae.

The main dispute relates to enforcement of an agreement made between the appellant and the respondent on 17th March, 2006 for sale of a LR. No. 209/746 situate in Nairobi, which was owned by the respondent. The appellant contended that it had complied with its part of the bargain and even taken possession of the property pending completion of the transaction, but the respondent had, in breach of the agreement, failed, refused or neglected to deliver the completion documents. The appellant filed suit on 4th April, 2011 seeking an order for specific performance and general damages for breach of contract.

Summons to enter appeā€¦

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