https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3560

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NANYUKI** **ELC APPEAL NO. E002 OF 2025** **ANTHONY MUTAHI KIMARU………………………….…APPELLANT** **VERSUS** **SIBA KONSE……………………………………………...RESPONDENT** ***(Being an appeal from the judgement of Hon L.Mutai (CM) delivered at Nanyuki Law court on 28.5.2021 in CMCC No. 144* *of 2018 )*** **JUDGMENT** ***The case before the trial court*** 1. This matter is closely related to ELA E001 of 2025 emanating from Nanyuki CMELC 142 of 2018 and ELA E005 of 2025 emanating from CMCC 143 of 2018 Nanyuki of which the latter two suits have been determined together, independently of this suit; 2. The plaintiff/respondent instituted the proceedings before the trial court through a plaint dated 2.7.2018 in the case CMCC 144 of 2025. He contended that vide a sale agreement dated 25.8.2014, the defendant, now the appellant sold to him PLOT NO.B ( a subdivision of L.R. NO. 10422/21) at the price of Ksh.1 800 000. That it was an express term of the agreement that the defendant was to deliver to the plaintiff all the completion documents of which the suit parcel was registered as L.R.NO.10422/84. However, in breach of the said agreement, the defendant sold the suit parcel to a third party and offered to refund Sh. 1 500 000. 3. The plaintiff therefore sought for judgment against the defendant in the following terms; 4. **Payment of sh.4 000 000 being the current market value of parcel L.R. NO.10422/84** 5. **Interest on (a) above at court rates from date of demand of payment.** 6. **Any other relief** 7. **Costs of the suit.** 8. The appellant/defendant opposed the two suit vide his statement of defence dated 7.8 .2018. He admits that indeed the parties had entered into a sale agreement, but contends that it is the plaintiff who breached the said agreement by failing to pay the deposit as agreed, but added that the plaintiff was entitled to the deposit paid, thus the defendant was under no obligation to deliver the completion documents. He contends that he refunded the amounts due via cheques nos. 077162 and 077163. The cheques were however returned by the plaintiff. 9. At the trial, the plaintiff, **Siba Konse Siba** testified as Pw1.He adopted his witness statement dated 2.7.2018 as his evidence which mirrors his pleadings. He added that he paid sh.1 500 000 out of sh 1 800 000, adding that the balance of sh 300 000 was to be paid once the completion documents were availed. He availed supporting documents to his claim which included the title of the land which was to be sold to him, L.R 10422/84. He contends that the defendant wanted to refund sh.1 500 000 but he declined as the land is now worth sh.4 million and he availed a valuation report to that effect. 10. On cross examination, Pw1 stated that the defendant had started demanding sh. 3 million and when a refund of sh 1.5 million was offered he declined the same. 11. The records do not capture the testimony of the defendant, but the same is captured in the body of the judgment of the trial court. It appears that the evidence of the defendant, Anthony Mutahi Kimaru is still the one recorded in CMCC 143 OF 2018 where he adopted his witness statement dated 26.6.2019 as his evidence. He contends that the plaintiff refused to pay the full deposit from the onset, thus the agreement became void ab initio on the expiry of the 90 days. That he tried to revive the agreement by requesting the plaintiff to pay the full purchase price but he declined. 12. In cross-examination, Dw1 testified that in the case CMCC 144 of 2018, the plaintiff is Siba Kobe from whom he received sh.1,5 million. 13. In a judgment delivered on 28.5.2021, the plaintiff was awarded the sum of sh. 1, 500 000 as restitution and sh. 2,500 000 being the loss of the bargain plus costs and interest from date of filling the suit till payment in full. ***The Appeal*** 1. Aggrieved by the aforesaid decision, the appellant filed this appeals vide his Memorandum of Appeal dated 19.6.2021. He raises Grounds of Appeal summarized as follows; That the trial magistrate erred in law and fact in failing to find that the respondent was in breach of the agreement, that rescission was one of the remedies available to the parties, failing to find that the subject matter of the suit was not ascertainable, thus the contract for sale was not enforceable, finding that the respondent was entitled to damages for loss of bargain and in re-writing the contract for the parties. 2. The appellant therefore prays that the appeal be allowed, the judgment of the lower court be set aside and the suit therein be dismissed with costs. 3. The appeal was heard by way of written submissions. In his submissions, the appellant brings in the aspect that the land in question was agricultural land requiring consent from the land control board for the transfer to take place and asserts that the transaction became void. He further argues that there was no proof that the suit parcel was a subdivision of parcel 10422/21, thus as at the time of the sale, the suit plot could not be ascertained. He argues that the agreement had a completion date of 90 days which was breached by the respondent. 4. For the respondent, he submits that the issue of the land Control board did not feature in the agreement, thus the consent thereof was not one of the completion documents, adding that the appellant breached the agreement by failing to deliver the completion documents. He avers that the remedy of rescission was not explicitly stipulated. 5. I have considered the record of the trial court, the grounds of appeal and the rival submissions. This being a first appeal, the court reminds itself of its primary role as a first appellate court namely, to re-evaluate, re-assess and re-analyse the evidence and then determine whether the conclusions reached by the learned magistrate are to stand and give reasons either way as was pronounced in; **Selle and Another Versus Associated Motor Boat Company Ltd & Others [1968] Ea 123, Abok James Odera t/a A.J Odera & Associates Vs John Patrick Machira t/a Machira & Co. Advocates (2013) eKLR.** 6. The question falling for determination is whether the trial courts judgment of 28.5.2021 should be disturbed. In the Court of Appeal case of **Pius Kimaiyo Langat v Co-operative Bank of Kenya Limited [2017] eKLR**, it was stated thus; **“We are alive to the hallowed legal maxim that it is not the business of courts to rewrite contracts between parties. They are bound by the terms of their contracts, unless coercion, fraud or undue influence are pleaded and proved. See National Bank of Kenya Ltd vs Pipeplastic Samkolit (K) Ltd [2002]2 EA 503. The primary task of the court is to construe the contract and any terms implied in it. See Megarry, J. in the case of Coco vs A. N. Clark (Engineers) Ltd . - [1969] RPC 41”** 1. The agreement of 25.8.2014 stipulated as follows; **“ 1. The property sold is the subdivision of land Reference Number 10422/21 marked as parcel number B measuring 0.07 hectares and edged red on the attached proposed sub-divisional plan which shall be read with and form part of this agreement.** **2. The purchase price is the sum of Kenya shillings one million eight hundred thousand (Kshs 1,800,000/=) which shall be paid to the vendor by the purchaser in the following manner:-** 1. **Kenya shillings one million five hundred thousand (Ksh 1,500,000/=) on or before execution hereof (receipt is hereby acknowledged by the vendor)** 2. **Balance of Kenya shillings three hundred thousand (Ksh 300,000/=) on the completion date.** **3. The completion date shall be ninety (90) days of the date of this agreement.** **4. The property is sold with vacant possession which possession shall be delivered to the purchaser on the completion date.** **5. The sale is subject to the Law Society conditions of sale as currently subsisting in so far as they are not inconsistent with the conditions contained in this agreement.** **SPECIAL CONDITIONS** **1. The vendor shall on or before the completion date deliver to the purchaser the following in respect of the property:-** 1. **A duly signed Transfer of the Property in favour of the purchaser;** 2. **Original Deed Plan or Registered Mutation form whichever shall be applicable;** 3. **A valid rates clearance certificate,** 4. **A valid Land Rent Clearance certificate;** 5. **A signed Stamp Duty Valuation form;** 6. **Copies of the vendor’s P.I.N. Certificate and National Identity Card;** 7. **Three coloured passport size photographs of the vendor;** **And the purchaser shall pay to the vendor the balance of the purchase price.”** 1. From the above terms of the agreement, nowhere is the issue of the consent from the land control board factored in. However, assuming that the said consent became necessary for the transaction, what then was so difficult on the part of the appellant in reaching out to the respondent so as to revise the agreement and factor in the issue of the land control board. What more, there is not the slightest evidence from the appellant to indicate that he raised this issue post the execution of the agreement. 2. The reason as to why the appellant purported to rescind the agreement was apparently because the full purchase price was not paid by the respondent. However, the balance of Sh. 300 000 was to be paid upon the delivery of the completion documents. Nowhere in his evidence has the appellant stated that he indeed delivered the completion documents. During cross examination, Dw1 stated that *; “ I was to obtain completion documents within 90 days which I did and I asked the purchaser to deposit the balance but nothing happened*”. He further stated that; *“ I have nothing to show that I informed plaintiff that the documents are ready”.* 3. This far, it becomes clear that the appellant is the one who was in breach of the agreement and he had no justification at all to rescind the same. 4. On payments, the agreement captures that the appellant acknowledged the receipt of sh 1 500 000, and in cross examination, he admitted receiving the sum of sh 1.5 million from the respondent. He however disputes the valuation report without availing rebuttal evidence, yet the pleading of the respondent indicates that the latter was claiming the market value of the suit plot. 5. This far, I find no plausible reasons to disturb the judgment of the trial court. This appeal is hereby dismissed with costs to the respondent. **DATED, SIGNED AND DELIVERED AT NANYUKI THIS 10TH DAY OF JUNE 2026 THROUGH MICROSOFT TEAMS.** **LUCY N. MBUGUA** **JUDGE** **In the presence of:** **C/A – Nancy** **Muthoni for Respondent**