The court considered whether there was total failure of consideration which entitled the respondent to a refund of the purchase price. The court held that a failure of consideration occurred if sufficient consideration was contemplated by the parties when the contract was entered into but either on account of innate defect in the thing to be given or non-performance in whole or in part of what the promisee agreed to, nothing of value could be or was received by the promisee. The court was satisfied that the parties’ sale agreement provided that the respondent would get the land that was free from encumbrances but she didn’t enjoy quiet possession until she paid the rightful owner of the land. The court accordingly concluded that there had been total failure of consideration and the respondent was entitled to a refund of the purchase price.
The court further considered whether the trial judge erred to award interest to the respondent in respect of the purchase price. The court held that the basis of an award of interest was that the defendant had kept the plaintiff out of his/her money and has used it himself and should compensate the plaintiff accordingly. The court was satisfied that the respondent paid seventy million shillings to the appellant under the sale agreement but she never got what she paid for. The court accordingly concluded that she was entitled to interest.