JUDGMENT
Shabaha Investments Limited, the Respondent herein, entered into an Agreement of Sale dated and executed on 5th April 1995 (hereinafter “the sale agreement”) with the Appellant, Dhanjal Investment Limited, in respect of the property known as Picolo Beach Hotel, situated on L. R. No. 1549/ Section 1 Mainland North Mombasa (CR 13445) (hereinafter “the suit property”). It is not in dispute that the Appellant took physical possession of the suit property on 27th January 1996 after payment of a deposit of 10% of the purchase price, and that a transfer of the suit property to the Appellant was effected on 15th February 1996.
When payment of the balance of the purchase price was not forthcoming, the Respondent filed a suit in the High Court from which this appeal arises, namely Mombasa HCCC 38 of 1997. The Respondent in its Amended Plaint dated 15th May 2008 claimed that the Appellant, being in possession of the suit property, was under an obligation to complete performance of the sal…