[2025] KEHC 9881 (KLR)

Abdalla & another v Sheheena Enterprises Limited (Civil Suit 45 of 2019) [2025] KEHC 9881 (KLR) (23 May 2025) (Judgment)

Neutral citation: [2025] KEHC 9881 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Suit 45 of 2019

DO Chepkwony, J

May 23, 2025

Between

Fawzy Kassim Abdalla

1st Plaintiff

Laila Islam Ali

2nd Plaintiff

and

Sheheena Enterprises Limited

Defendant

Judgment

1. The Plaintiffs, Mr. Fawzy Kassim Abdalla and Mrs. Laila Islam Ali, are a married couple and residents of the United Arab Emirates. By a Plaint dated 31st May, 2019, the Plaintiffs instituted this suit against the Defendant, Sheheena Enterprises Limited, relying on a Letter of Offer dated 27th March, 2015 through which the Defendant had Offered to sell to them Apartment No. 8B, located on the 8th Floor of a development to be known as Sheheena Marina Apartments, situated on Subdivision No. 20250. The agreed consideration for the purchase was Kshs.50,000,000. 00.

2. The Plaintiffs contend that pursuant to the terms of the Letter of Offer, they were required to pay a reservation deposit of Kenya Shillings Five Million (Kshs.5,000,000. 00), being ten percent (10%) of the purchase price, upon or before execution of the Letter. The balance of the purchase price, amounting to Kenya Shillings Forty-Five Million (Kshs.45,000,000. 00), was to be paid in a structured and phased manner as follows:-a.From April, 2015 to March, 2016: Kshs.1,500,000 per month for 12 months, totalling Kshs.18,000,000;b.From April 2016 to September 2017: Kshs.1,360,000 per month for 18 months, totaling Kshs.24,480,000;c.The final balance of Kshs.2,520,000 (5% of the purchase price) was to be paid upon completion.

3. It was further an express term of the said Letter of Offer that the Defendant, being the vendor, would within sixty (60) days from the date of signing of the Offer, cause a Formal Agreement for Lease to be prepared by its advocate and availed for execution by the Plaintiffs, who were to execute the agreement without making any amendments. The Formal Lease Agreement, once executed, would then supersede the Letter of Offer. The Offer Letter also projected the anticipated date of completion for the construction and delivery of the apartment to be in or about September, 2017.

4. The Plaintiffs assert that, acting in strict compliance with the terms of the Offer, they proceeded to remit to the Defendant a cumulative sum of Kenya Shillings Forty-One Million (Kshs.41,000,000. 00) between 7th April, 2015 and 10th February, 2017. Despite these substantial payments, the Defendant failed, neglected, or refused to issue the Plaintiffs with the Formal Agreement for the Lease as stipulated.

5. Further, and most critically, the Defendant completely abandoned the development of the Sheheena Marina Apartments project, including Apartment No. 8B, from August, 2017. As a result, the subject apartment remains incomplete, inaccessible, and uninhabitable, thereby frustrating the Plaintiffs’ legitimate expectations to take possession and occupation.

6. The Plaintiffs contend that the Defendant’s actions amount to a fundamental breach of contract, entitling them to a refund of the entire amount paid. Consequently, they have urged the Court to enter Judgment against the Defendant in the following terms:-a.A sum of Kshs.41,000,000. 00 being the amount paid towards the purchase;b.Interests thereon from the date of payments referred to in paragraph 5 hereof of the date of payment in full at the commercial bank lending rates in force during those periods;c.Costs of and Incidental to this suit.

7. In response, the Defendant filed a Statement of Defence dated 17th July, 2020, which was subsequently amended on 31st January, 2022. In its defence, the Defendant admitted having entered into an arrangement for the sale of the apartment and acknowledged receipt of the sum of Kshs.41,000,000. 00. However, it claimed that the Plaintiffs failed to strictly adhered to the payment timelines stipulated in the Letter of Offer, which the Defendant deemed to constitute a breach. The Defendant states that it notified the Plaintiffs of this alleged breach through an email dated 24th July, 2017.

8. The Defendant also asserted that the Plaintiffs failed to remit the outstanding balance of Kshs.9,000,000. 00, thus defaulting in their payment obligations. It was also the Defendant’s position that the completion date for the apartment was to be seven (7) days following the issuance of a certificate of partial or sectional completion by the architect. According to the Defendant, no such certificate has been issued to date, thereby nullifying any claim for completion or delivery of the apartment.

9. The Defendant further stated that by an Email dated 2nd August, 2018, the Plaintiffs unilaterally cancelled the contract and demanded a refund of the sums paid. According to the Defendant, such cancellation invoked Clause 13 of the Agreement which provided that upon cancellation, the Defendant would be entitled to retain 10% of the purchase price, equivalent to Kshs.5,000,000. 00, as cancellation costs. The Defendant averred that it has, at all material times, been willing to refund the balance of Kshs.36,000,000. 00 and indeed proposed a repayment plan to the Plaintiffs, which they have allegedly refused to accept or cooperate with, and even failed to provide banking details for remittance of the instalments.

10. The Defendant maintains that the apartment was being sold on an "off-plan" basis and therefore all payments made were utilized in the ongoing construction and development costs. As such, it has argued that any refund was contingent upon the successful sale of the same apartment to a third party. The Defendant therefore sought the following reliefs from the Court:-a.A declaration that the Plaintiffs cancelled the Contract and that the Defendant is lawfully entitled to retain Kshs.5,000,000. 00;b.A declaration that the Defendant acted in accordance with the provisions of the Law Society Conditions of Sale (1989 Edition) and an order that the Defendant shall refund the Kshs.36,000,000. 00 only upon successful sale of the Apartment to another purchaser, or in the alternative, parties be bound by the repayment plan issued by the Defendant on 23rd July, 2018;c.That the Plaintiffs’ suit be dismissed with costs.

11. In their amended reply to the Defence dated 2nd February, 2022, the Plaintiffs reiterated that all payments made were duly authorized and made pursuant to specific instructions issued by the Defendant’s directors and at no time, prior to August, 2017 did the Defendant raise any objection to the manner or timing of payments. The Plaintiffs also strongly denied having cancelled the contract contending that their demand for a refund was precipitated by the Defendant’s abandonment of the project, failure to prepare or present the formal Lease agreement as promised, and failure to deliver a completed and habitable apartment. The Plaintiffs have maintained that it was the Defendant who fundamentally breached the terms of the agreement, thereby frustrating the contract and rendering its performance impossible.

12. The matter eventually proceeded to full hearing whereby the Plaintiffs testified in support of their case on 9th February, 2021, while the Defendant called two witnesses, namely Vincy Shirur Raghui and Shazmeer Alnoor Habib Jiwan, who testified on 28th October, 2022.

13. The first Plaintiff Witness (PW1), Fanizi Kassim Abdalla, adopted as his evidence-in-chief, the contents of his witness statement dated 23rd April, 2019. He reiterated that the Defendant had unilaterally and unjustifiably abandoned the construction site in or about August, 2017, with no indication, effort, or communication suggesting that the construction would resume at any foreseeable date. His statement as filed reiterates the contents of the Plaint reproduced above.

14. In cross-examination, PW1 conceded to having read and signed the Offer Letter, which contained a Clause regarding cancellation costs. However, he maintained that he never cancelled the transaction, rather, it was the Defendant who failed to fulfil its obligations, thereby frustrating the performance of the Contract. He acknowledged receiving a Letter from the Defendant dated 24th July, 2017, wherein it was offering to refund the sums paid in instalments. Notably, however, the Defendant's Director subsequently proposed an alternative arrangement where he offered to sell him a different parcel of land, in lieu of refund but the deal was never finalized. He admitted that no certificate of partial or sectional practical completion had ever been issued to mark the expected completion date. That he rejected the Defendant’s repayment proposal on the basis that it sought to retain Kshs.5,000,000. 00 despite there being no breach on his part. To date, he added, no individual or representative has approached the Defendant with any Offer to purchase the apartment initially contracted for since the project is stalled.

15. Upon re-examination, PW1 reiterated that the agreement for sale was to be executed within sixty (60) days of the date of signing the Offer Letter, which he signed on 4th April, 2015, thus the Sale/Lease Agreement ought to have been executed by 4th June, 2015. However, the Defendant never availed the said Agreement, despite persistent follow-ups, the last of which he made on 14th March, 2017. PW1 maintained that forfeiture of the deposit was contingent upon the purchaser's failure to execute the Sale Agreement or breach thereof. In the instant case, the Defendant neither furnished the Sale Agreement nor established any breach by the Plaintiff. He clarified that while he was obligated to pay Kshs.18,000,000. 00 by March, 2016, he had already paid Kshs.21,000,000. 00 by 17th June, 2015 which was well ahead of the stipulated schedule. Further, although the next instalment of Kshs.24,480,000. 00 was due by September, 2017, he had already paid Kshs.20,000,000. 00 by 10th February, 2017, again, in advance, despite not having received the Sale Agreement.

16. The second Plaintiff Witness (PW2), Layla Islam, adopted her Witness Statement dated 10th April, 2019 as her evidence-in-chief. She testified that she made regular visits to the Mombasa site to inspect the progress of the development, only to find the site abandoned with no construction activity undertaken over the past four years. She further reiterated the chronology of events and facts as contained in the Plaint.

17. In cross-examination, PW2 confirmed that they had cumulatively paid Kshs.41,000,000. 00, yet received no assurance as to when the Apartment was to be delivered in return, justifying their claim for a full refund. She was aware that the completion timeline was estimated, not definitive, but asserted that, notwithstanding the allegations of occasional late payments, they did not breach the terms of the Offer Letter. She stated that even though the Apartment was purchased off-plan, the Defendant remained obligated to honour the contractual commitments set forth in the Offer Letter.

18. On re-examination, PW2 emphasized that the Sale Agreement was to be provided within sixty (60) days of signing the Offer Letter, a requirement the Defendant failed to fulfil, even after institution of the present suit. Furthermore, she noted that even four (4) years after the estimated completion date, the Defendant had neither provided a revised completion date nor availed the long-promised sale agreement. In these circumstances, she stated, the Plaintiffs had no alternative but to seek reimbursement of the amounts paid.

19. The Defendant’s first witness (DW1), Vincy Shirur Raghui, adopted his Witness Statement dated 1st August, 2019 as his evidence-in-chief. He identified himself as the Financial Controller of the Defendant Company. He confirmed that the Plaintiffs had paid a cumulative sum of Kshs.41,000,000. 00 toward the off-plan purchase of an Apartment whose agreed total purchase price was Kshs.50,000,000. 00. According to him, the transaction was terminated by the Plaintiffs via an Email dated 2nd August, 2017, which the Defendant accepted by its Letter dated 12th August, 2017. Relying on Clause 13 of the Offer Letter, DW1 stated that the Defendant was entitled to retain Kshs.5,000,000. 00 as cancellation costs and refund the remaining Kshs.36,000,000. 00. However, he alleged that the Plaintiffs declined the proposed instalment-based repayment plan and failed to submit bank details to actualize the same.

20. DW1 elaborated that the project was designed to be executed in three phases. The first and second phases had been completed at a cost of Kshs.862,000,000. 00, while the third and final phase, which involved specialised interior and exterior finishes, was projected to cost Kshs.571,000,000. 00. This substantial capital requirement had allegedly caused the delays but assured the Defendant’s continued interest in completing the project and delivering the apartment to the Plaintiffs, projecting that completion would occur within three years from that time. He nonetheless accused the Plaintiffs of failing to comply with the agreed payment schedule set out in the Offer Letter.

21. In cross-examination, DW1 testified that he had been present when the Offer Letter was signed and indeed executed it on behalf of the Defendant on 4th April, 2015. He acknowledged that under Clause 8 of the Offer Letter, the Sale Agreement was to be executed by 4th June, 2015. Despite this, the Defendant never provided the Sale Agreement. He admitted that nonetheless, the Plaintiffs proceeded to make substantial payments, which the Defendant accepted.

22. He averred that by April and May, 2017, the Plaintiffs had begun raising concerns and sent Emails requesting a revised project completion timeline which was never done. DW1 also acknowledged that the Defendant had been sued by the original contractor but downplayed the relevance of that litigation to the present matter. He confirmed that although the Offer Letter provided for a September, 2017 estimated Date of Completion, the Defendant now projected completion in the year, 2029.

23. During cross-examination, DW1 insisted, that the Plaintiffs had cancelled the transaction before signing a Lease agreement and that under the Offer Letter, the Defendant was entitled to forfeit the deposit. He stated that the Defendant was not strictly bound to complete the project by September, 2017 and attributed the delay in providing the Sale Agreement to a decision to expand the project from a 14-storey to a 23-storey structure.

24. The Defendant’s second witness (DW2), Shazmeer Alnoor, also adopted his Witness Statement dated 17th July, 2020 and confirmed that, at the time the Offer Letter was signed, construction had not yet commenced but was expected to begin immediately. He asserted that the Plaintiffs were fully aware their funds would be channelled into the project development and added that the 2nd Plaintiff had been part of the architectural team and was conversant with the project’s intricacies. He claimed that it is the Plaintiffs and not the Defendant who had cancelled the transaction and that the Defendant intended to hand over the Apartment to them upon completion. He clarified that the Defendant did not object to refunding the monies paid and reiterated that such refund would be effected upon sale of the Apartment.

25. In cross-examination, DW2 acknowledged that the Defendant was to provide a Lease Agreement within sixty (60)days of the Offer Letter’s execution, but this did not materialize. He attributed the delay to the Lease’s continued preparation and stated the Defendant was not in a hurry to issue it, even after the Plaintiffs requested it, because it was not ready. He admitted that the Plaintiffs continued to remit payments despite the absence of the Lease Agreement. He emphasized that the Defendant was not obligated to complete the project by September, 2017, which was merely an estimated date. He asserted that the Bill of Quantities showed ongoing work, and reiterated the Defendant’s commitment to deliver the Apartment upon completion.

26. Upon re-examination, DW2 stated that the initial project timeline envisioned completion within three (3) years, hence the projected September, 2017 deadline. He explained that the COVID-19 Pandemic affected progress and that had it not occurred, the project might have been completed in 2020. He concluded by affirming the Defendant’s willingness to complete and hand over the Apartment, if the Plaintiffs were willing to wait.

Analysis and Determination 27. Having considered the pleadings and the evidence presented by the parties herein, the following issues arise for this Court’s determination: -a.Whether there was a valid and binding Contract between the parties.b.Whether the Defendant and or the Plaintiffs breached the terms of the Contract.c.Whether the Plaintiffs are entitled to a refund of the amounts paid.d.Who should bear the costs of the suit.

28. The above issues will be addressed inter-changeably but the Court will endavour to provide legal reasoning for each of the issues highlighted above. As to whether there was a valid binding Contract between the parties, it is worth noting that a valid Contract requires an offer, acceptance, consideration, and intention to create legal relation. Turning to the first issue which is whether a valid and binding contract existed between the parties, it is a well-established principle of contract law that a valid contract must be founded upon four essential elements:-i.an Offer,ii.acceptance,iii.consideration; and,iv.an intention to create legal relations.These elements must co-exist for a contract to be legally enforceable.

29. In the present case, the parties executed a Letter of Offer dated 27th March, 2015, which was duly signed by both the Plaintiff and the Defendant. Neither party disputes the contents or execution of this document, and there is no evidence to suggest any ambiguity or misunderstanding at the point of its adoption. This mutual execution, along with the unchallenged terms, sufficiently establishes the presence of consensus ad idem which is foundational to the formation of a contract.

30. Although the parties had anticipated that a Formal Lease Agreement would subsequently be drafted and executed, its absence does not automatically negate the existence or enforceability of the Agreement arising from the Letter of Offer. This position is supported by the Court of Appeal’s decision in the case of Peter Mburu Echaria –vs- Priscilla Njeri Echaria [2007] eKLR, where the Court held that “the true intention of parties, as discerned from their conduct and correspondence, is determinative of whether a legally binding Agreement has been formed”. Thus, the Letter of Offer, being sufficiently clear, executed, and acted upon, constituted a binding agreement between the parties.

31. What remains in contention is whether the Defendant breached the terms of the said Agreement, particularly those set out in the Letter of Offer. The Plaintiffs have alleged that the Defendant was contractually obligated under Clause 8 of the Letter of Offer to cause the preparation and presentation of a Formal Lease Agreement for execution within sixty (60) days from the date of signing. It is undisputed that this obligation was not fulfilled.

32. During trial, both Defence Witness 1 (DW1) and Defence Witness 2 (DW2) acknowledged that the Lease Agreement was never presented to the Plaintiffs for execution. However, their explanations diverged. DW1 testified that the delay in preparing and availing the Lease Agreement stemmed from a change in the Defendant’s project design, specifically, the decision to revise the development from a 14-storey building to a 23-storey high-rise. In contrast, DW2 merely stated that the Lease had not been finalized, but did not elaborate further on whether any steps were subsequently taken to follow up or ensure compliance with the Defendant’s obligation under Clause 8.

33. Notably, DW2 Offered no evidence of any attempts by the Defendant to cure the default or to keep the Plaintiffs informed of the status or progress of the Lease preparation. The Defendant’s failure to provide updates or to take any concrete steps to remedy the default, highlights a disregard for the terms of the Offer Letter and constitutes a material breach. In the absence of any documentary or testimonial evidence showing genuine efforts to comply with the obligation to avail the Lease Agreement, the inescapable conclusion is that the Defendant breached Clause 8 of the Offer Letter.

34. Had the Defendant fulfilled its obligation under Clause 8, the formal Lease would likely have elaborated on the parties’ respective rights and obligations, provided greater clarity regarding the development timelines, the completion date, the remedies available for each party and possibly prevented the present dispute. The Defendant's failure to adhere to this critical contractual provision deprived the Plaintiffs of the opportunity to formalize and safeguard their interests in the project, and this omission constitutes a breach that goes to the root of the Agreement.

35. The Plaintiffs further criticized the Defendant for failing to complete and hand over the Apartment within the timeframe anticipated in the Letter of Offer, specifically under Clause 11, which provided that the estimated completion date would be September, 2017. They testified in court that they had fulfilled their obligations by making substantial payments, which the Defendant accepted without objection. However, by the anticipated completion date, the construction site had been abandoned, and the Defendant failed or refused to communicate a revised or future estimated completion date, despite numerous requests from the Plaintiffs.

36. In response, the Defendant contended that Clause 11 also provided that the actual completion date would be seven (7) days from the date on which the Vendor’s Architect issued a Certificate of Partial or Sectoral Practical Completion of the Apartment. The Defendant argued that it was under no obligation to complete the Apartment by September, 2017, as this was merely an estimated date. According to the Defendant, completion would only occur upon issuance of the relevant Certificate by the Architect.

37. Firstly, and significantly, no other document was furnished by the Defendant to the Plaintiffs to qualify or amend the estimated completion date set out in Clause 11. As such, the Plaintiffs were reasonably led to believe that the Apartments would indeed be completed by September, 2017. This belief was not merely subjective but was reinforced by the structured payment schedule outlined in Clause 5 of the same Offer Letter.

38. Clause 5 scheduled the Plaintiffs’ payments in a phased manner, culminating in full payment by September, 2017. It is only logical to infer that the payments were designed to align with the construction milestones, such that the final payment would coincide with completion and handover. A purchaser cannot be expected to make full payment for an uncompleted structure, absent of a clear and mutually agreed timeline for delivery. Thus, by structuring the payment schedule to conclude in September, 2017, the Defendant effectively represented to the Plaintiffs that this would also be the timeframe for delivery of the completed Apartment.

39. Seven (7) years have now passed since the execution of the Offer Letter, and it is both unreasonable and absurd for the Defendant to suggest that such an extended period could fall within the scope of Clause 11’s reference to an estimated completion date. To interpret Clause 11 in this manner would not only defeat the commercial purpose of the Contract but would also render the estimated date meaningless. The principle of contra proferentem provides that where there is ambiguity in a contractual Clause, the ambiguity should be construed against the party that drafted or proposed the Clause.

40. In this case, the Defendant is the party who prepared the Offer Letter and was responsible for drafting its terms. Thus, if Clause 11 was intended to qualify the September, 2017 completion date so extensively as to render it open-ended and indefinite, the burden was on the Defendant to express this with clarity. Having failed to do so, the Clause must be interpreted in the manner most favourable to the Plaintiffs, that is, as a firm representation that the Apartment would be completed by or around September, 2017, subject to reasonable delays, but certainly not a delay of over seven (7) years.

41. Accordingly, this Court finds that the Defendant has clearly defaulted in delivering or completing the Apartment within the timelines reasonably anticipated and represented in the Offer Letter. The Plaintiffs' expectations were legitimate, their obligations were fulfilled and the Defendant’s failure to deliver or communicate a revised completion timeline further amounts to a fundamental breach of Contract.

42. Lastly, the he Defendant contended that the Plaintiffs breached Clause 5 of the Agreement by failing to adhere to the stipulated mode of payment. According to the Defendant, the Plaintiffs were required to make monthly instalments of Kshs. 1,500,000. 00 from April, 2015 to March, 2016, amounting to a total of Kshs. 18,000,000. 00, and thereafter monthly instalments of Kshs. 1,360,000. 00 from April, 2016 to September, 2017. The Plaintiffs, however, produced evidence to show that while the payments were not made strictly on a monthly basis, they nonetheless fulfilled their financial obligations by ensuring that the required amounts were paid in full by or before the respective due dates.

43. It is evident from the record that the Defendant did not at any point object to the mode or timing of the payments made by the Plaintiffs. Despite claiming a breach of Clause 5, the Defendant accepted the payments without protest and continued to engage with the Plaintiffs throughout the transaction, which only infers that it condoned with the mode of payment.

44. Having received and retained these payments without objection, the Defendant is estopped from later asserting that the Plaintiffs’ mode of payment constituted a breach. In fact, the Defendant’s conduct clearly amounted to a waiver of any right to insist on strict compliance with the monthly instalment plan since the law does not permit a party to approbate and reprobate.

45. Moreover, it is the Defendant, not the Plaintiffs, who is in fundamental breach of the terms of the Agreement. The Defendant failed to complete and deliver the apartment within the time reasonably anticipated under the Letter of Offer. It further failed to provide a revised completion date despite repeated inquiries by the Plaintiffs. It is now over seven (7) years since the execution of the Letter of Offer, and the construction remains incomplete.

46. In these circumstances, the Defendant cannot be allowed to rely on an alleged technical breach by the Plaintiffs when they themselves have failed in their core obligations under the Contract.A party who is in breach cannot seek to enforce strict compliance against the other party when they themselves have failed to perform their own obligations.

47. In sum, the Defendant cannot justifiably fault the Plaintiffs for the manner in which payments were made, particularly where the payments were substantial, timely, and unobjected to.

48. In conclusion, the Defendant heavily relied on Clause 13 of the Letter of Offer to justify its entitlement to retain the deposit as cancellation fees, while arguing that the Plaintiffs had unilaterally cancelled the agreement by an email dated 2nd August, 2018. I have carefully considered the said clause, which states as follows: -“Cancellation Costs: if after execution of this Letter of Offer the purchaser fails to enter into Agreement for Lease in the manner provide herein, an amount equal to the said deposit shall stand forfeited and shall be retained by the vendor for the vendor’s account and benefit by way of agreed liquidated damages”

49. It is this court’s view that the Defendant’s reliance on Clause 13 of the Letter of Offer to justify the forfeiture of the Plaintiffs’ deposit is fundamentally flawed and misconceived. A plain and contextual reading of Clause 13 reveals that the right to retain the deposit as liquidated damages is expressly conditional upon the Plaintiffs' failure to enter into a Lease Agreement "in the manner provided herein" that is, after being presented with the Agreement for Lease and either refusing to execute it or seeking to introduce amendments contrary to the terms of the Offer Letter.

50. In the present case, and as already discussed above, there is no evidence whatsoever that the Defendant ever submitted a draft Lease agreement to the Plaintiffs for their consideration, execution, or negotiation. There is also no indication that the Plaintiffs were unwilling to execute such an Agreement, had it been availed. The Defendant’s failure to tender any Lease negates any right on their part to invoke Clause 13 or to claim entitlement to the deposit as liquidated damages.

51. The operative trigger for forfeiture under Clause 13 is not a general cancellation of the agreement, but a failure by the purchaser to enter into the Lease agreement as contemplated by the Offer Letter. Without providing the Plaintiffs with an opportunity to fulfill that obligation, the Defendant cannot shift the blame or rely on the forfeiture Clause for its own inaction or omission.

52. As such, the Defendant’s attempt to appropriate the deposit is not only legally untenable but also inequitable. It is a settled principle of law that a party cannot benefit from its own wrong—nullus commodum capere potest de injuria sua propria. The Defendant, having failed to present the Lease Agreement to the Plaintiffs, cannot now claim that the Plaintiffs are in breach for failing to execute a document they were never provided with. In these circumstances, the forfeiture Clause, in these circumstances, does not arise, and the Defendant's claim to retain the deposit must fail.

53. Having found that the Defendant was in clear breach of its obligations under the Letter of Offer as provided above, the next issue for determination is the appropriate remedy available to the Plaintiffs.In this case, the Plaintiffs made substantial payments amounting to Kshs.41,000,000. 00, which the Defendant received without protest or reservation.

54. The doctrine of restitution is founded on the equitable principle that no party should unjustly enrich themselves at the expense of another. In circumstances such as the present case, where one party has paid substantial sums in anticipation of receiving a product or benefit (in this case, an apartment), but the other party has failed to deliver, the law intervenes to restore the parties to the position they were in before the agreement. This principle is succinctly captured in the Latin maxim: restitutio in integrum, meaning restoration to the original condition.

55. Accordingly, this Court finds that the most just and equitable remedy in the circumstances is to order restitution of the parties. Therefore, the Defendant shall forthwith refund to the Plaintiffs the sum of Kshs.41,000,000. 00, being the amount paid under the Offer Letter, which amount shall attract costs and interest at court rates from the date of filing of this suit until payment in full.

It is so ordered.

JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 23RD DAY OF MAY 2025. D. O. CHEPKWONYJUDGEIn the presence of:M/S Mulongo counsel holding brief for Mr. Nanji for the PlaintiffsMr. Isika counsel for DefendantCourt Assistant - Martin