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Hamisi v Yusuf (Civil Appeal E007 of 2025) [2026] KEELC 3412 (KLR) (13 May 2026) (Judgment) Neutral citation: [2026] KEELC 3412 (KLR) Republic of Kenya In the Environment and Land Court at Malindi Civil Appeal E007 of 2025 EK Makori, J May 13, 2026 Between Aziza Soud Hamisi Appellant and Fatma Sheikhayah Yusuf Respondent (Being an appeal from the judgment of the Honorable James Ongondo delivered on February 19, 2025) Judgment 1.The appellant herein, Aziza Soud Hamisi, dissatisfied with the judgment of the Honorable James Ongondo delivered on February 19, 2025, appealed to this Honorable Court against the entire judgment on the grounds, inter alia, that:a.The learned Magistrate erred in law and in fact by holding that the appellant’s counterclaim is res judicata and barred by the law of limitation.b.The learned Magistrate erred in law and in fact in dismissing the appellant’s counterclaim with costs.c.The learned Magistrate erred in law and in fact by failing to consider the appellant’s evidence, testimony, and submissions on record in making his final determination.d.The learned Magistrate erred in law and in fact by holding that the agreement was frustrated while at the same time considering the same to be void.e.The learned Magistrate erred in law and fact by making an inference that the appellant had forged the advocate’s signature, something that was not proved to the requisite standard or at all.f.The learned Magistrate erred in law and in fact in inferring that the agreement between the parties was frustrated by failure to obtain a bank loan without proof to this effect.g.The learned Magistrate erred in law and in fact by failing to consider that the suit property was registered in the respondent’s name, she took possession and held the same for the last 10 years to the exclusion of the appellant.h.The learned Magistrate erred in law and in fact by finding that the respondent is entitled to damages for pecuniary loss and awarding the same to the respondent.i.The learned Magistrate erred in law and in fact by awarding the respondent damages for expenses, to wit, stamp duty and valuation fees, which costs were incurred in the ordinary course of a conveyancing transaction and were not received by the appellant.j.The learned Magistrate erred in law and in fact in awarding interest to the respondent.k.The learned Magistrate erred in law and in fact in awarding costs to the respondent.l.The learned magistrate erred in law and fact by failing to make any determination in respect to the subject property, thereby leaving room for wide interpretation and ambiguity.m.The learned Magistrate erred in law and in fact in failing to appreciate the issues before him. 2.Reasons therefore, the appellant respectfully petitions that:a.This appeal be allowed.b.The judgment of Honourable James Ongondo delivered on 19th February 2025 be and is hereby set aside and be substituted therefor with an order dismissing the respondent’s suit and allowing the appellant’s counterclaim.c.Costs of this appeal and the proceedings in the Magistrate’s Court be awarded to the appellant.d.That this Honourable court be pleased to make any other order deemed just and fit in the circumstances. 3.The appeal was canvassed through written submissions. I acknowledge receipt of submissions from learned counsel for the appellant, Mr. Oluga, and learned counsel for the respondent, Mr. Kinyua, with much appreciation, as they went a long way to assist the Court in reaching its verdict. 4.Based on the record of appeal and the materials and submissions before me, the issues I frame for the determination of this Court are whether the trial Magistrate erred both in law and in fact by allowing the respondents' case and dismissing the appellants' counterclaim, whether this Court should allow the appellants' appeal by reversing the trial Court's finding, dismissing the respondents' case, and allowing the appellants' counterclaim, and who should bear the costs of the appeal and in the Lower Court. 5.The primary Appellate Court's function is to reassess the determinations made by the trial Court. In fulfilling this duty, this Court is required to scrutinize the evidence presented by the parties, as established in the case of Abok James Odera t/a A.J Odera and Associates v John Patrick Machira t/a Machira and Co. Advocates [2013] eKLR, and summarized herein:“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.” 6.By a plaint filed in the Lower Court dated April 1, 2020, the plaintiff sought the following reliefs:a.A declaration asserting that the Agreement dated 14 September 2015 is fraudulent and shall be considered null and void.b.A declaration that the transfer dated June 23, 2015, or September 26, 2015, and registered on October 6, 2015, is fraudulent and void.c.A declaration that the said Agreement and Transfer were not executed or attested in accordance with the Law of Contract Act, the Land Act, 2012, and the Land Registration Act, 2012, and are therefore unenforceable.d.In the alternative and without prejudice to the declarations that the Agreement and the Transfer are fraudulent and null and void, and only in the event that those documents are not so held, a declaration that the Agreement dated 14 September 2015 was frustrated when the Plaintiff was unable to procure a loan of Kshs. 6,000,000.00 under Special Condition No. 1.e.Judgment against the Defendant for Kshs. 10,225,260.00.f.Interest on all sums payable under prayer (d) and (e) above at 12% per annum from 1 October 2015 until payment in full.g.Costs of and incidental to this suit. 7.In a rejoinder, the defendant filed a defense denying the plaintiffs' claim and a counterclaim dated May 17, 2024, and sought the following reliefs:a.That this honorable Court be pleased to direct and order a survey of the suit property to ascertain its current value and status.b.The defendant be awarded compensation for the loss of use of the suit property.c.Any other relief this Honorable Court deems fit and just to order. 8.After hearing the matter on its merits, the trial Magistrate rendered his decision on February 19, 2025, and made the following findings:“The plaintiff's argument is that the sale agreement was not attested by the advocate whose stamp appears which contention was confirmed by the defendant in cross-examination when she admitted that the parties did not appear before the said advocate and neither did the advocate sign the agreement thus giving credence to the plaintiff allegations that the defendant forged the advocate's signature. The forgery continues to the transfer document since it is clear the said advocate did not execute the document. Other instances of fraud as indicated by the plaintiff is the different and inconsistent valuations for the property which do not match the 16M the defendant sought from the plaintiff. The plaintiff contends that in presenting the value as KES.16, 000,000/= instead of the value between 6 M and 8.5 M, the defendant was being dishonest the defendant has not disputed receipt of Kshs 10 M from the plaintiff.It is worthy noting that the defendant effected transfer to enable the plaintiff acquire a loan from the Standard Chartered Bank and not because the plaintiff had completed payment. This was a special condition which is an obligation the performance of which is essential to the contract of sale of the land that failure to secure the loan presented substantial failure and/or frustrated the performance of the contract herein.Having found that the contract has been frustrated as a result of failure to secure the loan and incapable of performance, it follows that the plaintiff is entitled to damages for pecuniary loss which in this case 10M damages for expenses to wit stamp duty Kshs. 140,260/-, and Kshs. 45,000/- valuation fees, making a total of Kshs. 10,225,260/-. (See Visoi Sawmills ltd v Attorney General (CA No. 78 of 1996).I enter judgment for the plaintiff against the defendant for Kshs 10,225,260/- with interest at 12% per annum from 1st October 2015 till payment in full. The plaintiff will also have costs of the suit with interest at court rates.” 9.On the counter-claim, the trial Court found that the same was not tenable as the parties had litigated over the same in Mombasa SPMCC No. 1454 of 2016. 10.I have reviewed, reevaluated, and reassessed the materials and evidence presented before the trial Court, as captured in the record of appeal. The parties herein entered into an agreement of sale dated September 14, 2015, under which the appellant sold to the respondent a property known as Subdivision Number 4689 (Original 49/3) of Section III, MN, for a consideration of Kshs. 16,000,000.00. Pursuant to the agreement, the respondent paid the appellant a deposit of Kshs. 10,000,000.00, and the balance of Kshs. 6,000,000.00 was to be paid within 4 months. 11.It was further agreed that upon execution of the agreement and receipt of the deposit, the appellant would transfer the suit property to the respondent, who would use the title as a guarantee for a loan from Standard Chartered Bank. The appellant met her part of the bargain by transferring the property to the respondent as agreed. However, despite obtaining the title deed in her name, the respondent could not obtain the loan due to the property's apparent undervaluation, contrary to the parties' belief as to the suit property's value. The respondent did not pay the balance of the purchase price and was sued by the appellant in Mombasa SPMCC No. 1454 of 2016. The Mombasa Court found that the agreement between the parties was unconscionable and dismissed the suit for recovery of the purchase balance. 12.In the suit in the Lower Court, the respondent sued the appellant for a refund, alleging that she could not obtain the loan as agreed and that the agreement was tainted with fraud, among other things. The respondent further alleged that the agreement and transfer were never signed by a qualified lawyer and that the land was overvalued, contrary to valuation reports showing it was far below the value the appellant presented. 13.As already stated, the Lower Court found in favor of the respondent and dismissed the appellant's counter-claim, hence this appeal. 14.In his submissions, counsel for the appellant asserts that the parties entered into the agreement on a willing-buyer, willing-seller basis. The appellant contended that the respondent left the suit property unattended, resulting in its deterioration, and sought damages for loss of use of the property. 15.Counsel further averred that the trial magistrate awarded the respondent Kshs. 10,225,260 in damages for pecuniary loss on the basis that the contract had been “frustrated.” That finding was based on the respondent’s alternative prayer (d). Prayers (a) and (b) of the respondent’s plaint sought declarations that the agreement and transfer were fraudulent, null, and void. Throughout the judgment, the trial magistrate made no finding that the agreement and transfer were fraudulent, null, and void as sought by the respondent. Accordingly, and rightly so, prayers (a) and (b) of the respondent’s plaint were not granted. 16.Counsel further submitted that in prayer (d) of her plaint, the respondent sought an alternative order, in the event the agreement and transfer were not held fraudulent and null and void, that a declaration be issued that the agreement was frustrated when the respondent was unable to procure a loan of Kshs. 6,000,000.00 under Special Condition No. 1 of the agreement. The trial Magistrate, after declining to find that the agreement and transfer were fraudulent and null and void and refusing to grant prayers (a) and (b), found in favor of the respondent only on the ground that the contract had been frustrated, which, as noted, was an alternative prayer. The appellant challenges the Magistrate’s finding that the contract was frustrated and asserts that it was in grave error. 17.This error counsel for the appellant points out that the respondent was adamant in her averment in the plaint that the agreement was fraudulent, null, and void for want of proper execution. The respondent cannot, on the one hand, contend that the agreement was not properly executed and therefore fraudulent, null, and void, and, on the other hand, contend that the agreement was valid but only frustrated. The two scenarios cannot be obtained simultaneously. It is either that the agreement was fraudulent and null and void, or that it was valid but frustrated. The respondent was bound to pick one side of the coin. Since she pleaded that it was not lawfully executed and therefore fraudulent, null, and void, the respondent was bound by that pleading. She could not turn around and aver that the contract was frustrated. Frustration only comes into play if the contract was valid. The facts pleaded by the respondent, to the effect that the agreement was fraudulent and null and void, divested the respondent of the right to contend that the contract was legal but was only frustrated by the failure to obtain the loan. Secondly and most fundamentally, each party had its obligation under the agreement. 18.Counsel additionally asserts that the respondent confirmed the appellant's signature on the transfer, the proper registration of the property in the respondent’s name, and the issuance of the title deed in her name, which was intended to serve as collateral for the loan. These constituted the sole obligation imposed on the appellant, which she duly fulfilled. Conversely, the role of the respondent (purchaser) was to “secure a loan from Standard Chartered Bank and use the title as a guarantee." Securing the loan was not the appellant's obligation, and she cannot be held accountable for its failure to be secured. It was the respondent who neglected her duty to secure the loan. The respondent acknowledged in paragraph 9 of her plaint that she failed to secure the loan in accordance with the specified Special Condition. 19.Counsel for the appellant further contends that, despite the magistrate’s own findings indicating that the appellant effectuated the transfer to enable the respondent to obtain a loan—thereby fulfilling her obligations under the agreement—and that it was the failure to secure the loan that resulted in the breach of contract, the Magistrate awarded the respondent Kshs. 10,225,260.00 under the designation of "damages for pecuniary loss.” It is a well-established principle that a party in breach of contract cannot derive benefits from that breach. Nevertheless, the respondent, who failed to secure the loan as stipulated, was awarded compensation amounting to Kshs. 10,225,260.00 by the trial Magistrate. Such an award is irregular and should be annulled. The respondent was responsible for her own misfortune for failing to secure the loan as required by the contract. She cannot, therefore, hold the appellant accountable for her breach of contract. 20.Regarding the issue of a forged advocate's signature, the appellant's counsel asserts that this issue was not pleaded in the plaint. Both parties signed the agreement. Both the appellant and the respondent had equal responsibility to ensure that the agreement was executed in compliance with the law. The appellant is not an advocate. She did not have any superior knowledge of contract execution to the respondents. Therefore, the appellant could not have taken advantage of the respondent in connection with the execution of the contract. Both parties were laymen. In these circumstances, counsel argues there is no basis to blame any errors in the execution of the agreement and the transfer on the appellant rather than the respondent. If anything, Pandya and Taliti Advocates, who prepared the agreement and the transfer, were representing the respondent. This is demonstrated by the fact that it is the respondent who paid the said firm’s legal fees of Kshs. 40,000.00, as she admits in her pleadings. The respondent could not have paid legal fees to Pandya and Taliti Advocates if the said firm was not representing her. The appellant was not represented by the said firm, and she did not pay any legal fees to the firm. Any irregularities in the documents prepared by the said firm (the agreement and the transfer) can only be attributed to the respondent and her advocates, not the Appellant. 21.Counsel for the respondent submits that the Agreement was never signed or executed by a qualified advocate. The Land Control Board granted consent when the appellant applied on August 4, 2015, and the consent was granted on August 7, 2015. That "consent" predates the Agreement by more than one month, as the Agreement is dated September 14, 2015. The "consent" is therefore invalid and void because the consideration was Kshs. 16,000,000.00, not Kshs. 6,000,000.00. The appellant committed an offense under Section 21 of the Land Control Act by knowingly stating that the consideration was Kshs. 6,000,000.00. Under Section 8(1) of the Land Control Act, an application for consent in respect of a controlled transaction shall be made in the prescribed form to the appropriate Land Control Board within 6 months of the making of the agreement for the controlled transaction by any party thereto. The significance of that provision is that the Board must see the Agreement. In this case, the Agreement had not been made, and the consent is null and void. Had the Board known that the consideration was Kshs. 16,000,000.00, it would not have granted consent for transfer at Kshs. 6,000,000.00. Under Section 7 of the Land Control Act, if any money or other valuable consideration has been paid in the course of the controlled transaction that becomes void, that money shall be recoverable as a debt by the person who paid it from the person to whom it was paid. That is what the respondent herein did when she filed the suit to recover her money. 22.Counsel for the respondent further argues that the appellant cannot retain what she obtained by fraud and multiple offenses. Under Section 157(1)(a) of the Land Act 2012, any person who knowingly makes any false statement orally or in writing in connection with any disposition or other transaction affecting land, or any other matter arising under that statute, commits an offense and, on conviction, is liable to a fine not exceeding Kshs: 10,000,000.00, imprisonment for a term not exceeding 10 years, or both. The false information consists of the drawing and registration of the transfer, showing a consideration of Kshs. 6,000,000.00, followed by suing the respondent for Kshs. 6,000,000.00 to make up the purchase price of Kshs. 16,000,000.00 under the agreement. 23.Counsel for the respondent further avers that the Agreement and the transfer were illegal and void under Sections 34 and 35 of the Advocates Act, as interpreted and applied by the Supreme Court of Kenya in National Bank of Kenya Ltd v Anaj Warehousing Ltd [2015] KESC 4 (KLR). 24.Counsel asserts that the Agreement and transfer are null and void under the Provisions of the Land Control Act. The Agreement and transfer are null and void under Section 157(1)(a) of the Land Act, 2012. The appellant knew that the respondent could not raise Kshs. 16,000,000.00, and both parties agreed in Special Condition 1 of the Agreement that the appellant shall transfer the property to the Respondent to enable the respondent to secure a loan from Standard Chartered Bank using that Title as security, and that the respondent, after securing the loan, shall clear the balance of the purchase price, Kshs. 6,000,000.00. That special condition is clear and unambiguous. The respondent could not clear the balance unless she obtained the loan from that bank. The appellant admits in her submissions that the respondent applied for the loan from Standard Chartered Bank and that the bank appointed a valuer to value the property. The bank declined the loan, and under Special Condition No. 1, the contract was frustrated, even assuming it was valid to begin with. 25.The matter before the Lower Court concerns a land sale agreement. As correctly determined by the trial Magistrate, the Courts lack jurisdiction to modify or rewrite agreements on behalf of the parties. Kenyan courts consistently hold that they lack the authority to revise or amend valid contracts. Under the principle of pacta sunt servanda (agreements must be honored), Courts strictly enforce agreements in their original form unless evidence of coercion, fraud, or undue influence is established. See National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & another [2001] KECA 362 (KLR), where the Court of Appeal held that Courts cannot rewrite a contract and that its terms bind parties unless vitiating factors are proved. In Langat v Co-operative Bank of Kenya Ltd [2017] KECA 152 (KLR), the Court noted that it is never the business of the Courts to rewrite contracts, as parties enter into them in good faith. In Musimba Investments Limited v Nokia Corporation [2019] eKLR, the Court of Appeal reaffirmed that the sanctity of freedom to contract means Courts should not rewrite terms on behalf of the parties. In Saad v Tudor Heights Limited & another [2023] KEELC 21586 (KLR), the ELC emphasized that it is trite law that Courts cannot rewrite contracts for parties, nor can they imply terms that were not originally part of the agreement. While Courts respect the sanctity of contracts, they will step in to void or vary terms if an agreement is deemed unconscionable, oppressive, or illegal. 26.According to the record, the parties entered into an agreement of sale dated September 14, 2015, under which the appellant sold to the respondent a property known as Subdivision Number 4689 (Original 49/3) of Section III, MN, for a consideration of Kshs. 16,000,000.00. Pursuant to the agreement, the respondent paid the appellant a deposit of Kshs. 10,000,000.00, with the balance of Kshs. 6,000,000.00 due within 4 months. 27.It was further agreed that, upon execution of the agreement and receipt of the deposit, the appellant would transfer the suit property to the respondent, who would use the title as security for a loan from Standard Chartered Bank and use the loan to repay the balance. The appellant fulfilled her obligation by transferring the property to the respondent as agreed. However, despite obtaining the title deed in her name, the respondent was unable to secure the loan because the property was apparently undervalued, contrary to the parties' understanding of its value. The respondent failed to pay the remaining balance of the purchase price and was consequently sued by the appellant in Mombasa SPMCC No. 1454 of 2016. The Mombasa Court deemed the agreement unconscionable and dismissed the suit seeking recovery of the outstanding purchase balance. 28.In the judgment of the trial Magistrate, whose excerpts I have highlighted, the Court determined that the agreement between the parties was considered frustrated due to failure to secure a loan of Kshs. 6,000,000 from Standard Chartered Bank, and that a qualified legal professional did not execute the agreement. 29.The respondent attributes all the infirmities of the agreement to the appellant, totally exonerating herself. 30.The trial Court's analysis did not establish that the agreement was fraudulent, null, and void, and instead found that the agreement was frustrated. I concur with the appellant's assertion that, in her pleadings, the respondent asserts that the agreement was fraudulent, null, and void due to improper execution. The respondent cannot simultaneously argue that the agreement was not properly executed, thereby rendering it fraudulent, null, and void, and assert that it was valid but merely frustrated. These two assertions are mutually exclusive. The agreement must either be deemed fraudulent, null, and void, or valid but subject to frustration. 31.The respondent should have selected one aspect of the issue. Because she argued that the agreement was not lawfully executed and consequently fraudulent, null, and void, she was bound by those assertions. She could not subsequently claim that the contract was frustrated. Frustration is only applicable if the contract is valid. The facts presented by the respondent, asserting that the agreement was fraudulent and null and void, deprived her of the right to contend that the contract was lawful but was merely frustrated by the failure to secure the loan. 32.Furthermore, I agree with the appellant that each party had obligations under the agreement. Special Condition No. 1 of the agreement stated as follows:“Special Condition:1.On signing this Agreement and receipt of the deposit, the Vendor shall also sign the Transfer of the property to the Purchaser to enable the Purchaser to secure a loan from Standard Chartered Bank and use the title as Guarantee. The Purchaser after securing the loan shall clear the balance of the purchase price [of] K.Shs. 6,000,000.00 hereof within the stipulated period of four (4) months.” 33.Special Condition No. 1 clearly required each party to fulfill specific duties within set timelines. The appellant (vendor) was responsible only for signing the property transfer to the purchaser. The respondent confirmed that the appellant signed the transfer, the property was properly registered in her name, and the title deed—intended as loan collateral—was issued in her favor. This was the appellant’s sole obligation, which she fulfilled. By contrast, the respondent (purchaser) was to obtain a loan from Standard Chartered Bank and use the property as collateral, and use the loan to repay the purchase balance. Securing the loan was not the appellant’s duty, and she cannot be held accountable for failing to secure it. This responsibility lay with the respondent, who admitted in paragraph 9 of her plaint that she did not secure the loan as required by Special Condition No. 1. The relevant part of paragraph 9 states:“9.The Plaintiff states that upon the Defendant arranging for registration of a fraudulent Transfer in favour of the Plaintiff, the Plaintiff approached Standard Chartered Bank Limited under Special Condition 1 to borrow the sum of Kshs. 6,000,000.00 but that the loan was declined. The Plaintiff therefore states that the Agreement… was frustrated by reason of her inability to procure a loan of Kshs. 6,000,000.00 on the security of that property.” 34.From the record, it is evident that the appellant fulfilled her obligations under the agreement and granted the respondent title to the land, as well as physical possession and access to the suit property. The allegations of fraud, illegality, and nullity of the agreement appear to me to be secondary, arising, as I observe, from a bad bargain on the respondent's part, which stemmed from the subsequent valuation of the land in which the appellant was not involved. 35.The special condition as to obtaining the loan was never a vitiating factor to the discharge of the agreement and could not amount to a frustrating factor. 36.A party that breaches a contract cannot benefit from that breach. The respondent, who did not secure the loan as agreed, was awarded Kshs. 10,225,260.00 by the trial Magistrate. This award was irregular and cannot stand. The respondent was responsible for her own misfortune by failing to obtain the loan as specified in the contract. She cannot hold the appellant accountable for her breach. Additionally, the respondent accused the appellant of misrepresenting the true value of the suit property, claiming this was the reason for her failure to secure the loan. This is what I call a bad bargain, as the parties are taken to have mutually agreed to all the terms and conditions that bind them under the doctrine of freedom of contract. 37.The concerns raised regarding the valuation declared as the worth of the suit property in the application submitted to the LCB, as well as the assertion that a qualified legal professional did not execute the agreement, appear to me to be an afterthought and an evasive strategy by the respondent to circumvent a bad bargain. This conclusion is drawn because, upon identifying these irregularities at the outset, the respondent ought not to have proceeded further with the performance of the agreement, which included having the land registered in her name, taking possession, and utilizing it as collateral to secure a loan. 38.From the record, there is no indication that the parties did not sign the agreement or were not ready to be bound by what they agreed to, as stated in the other occurrences – failure to obtain the loan was an obligation that the respondent failed to carry out in her part of the agreement. 39.In a nutshell, to me, the respondents' suit ought to have been dismissed, and the award to the respondent was not justified. The trial Magistrate does not explain the nature of the pecuniary award. If it were a refund of the purchase price, there ought to have been a finding as to what would happen to the land, since it was still registered in the respondent's name. As for the other heads of damages, these were expenses incurred in the normal course of the respondent's conveyance to secure the loan or to perfect the agreement. 40.Having found that the awards were untenable, that goes hand in hand with the interest awarded – that it ought not have been awarded. 41.On the counter-claim, the trial Court found that the same was res judicata, Mombasa SPMCC No. 1454 of 2016, and that the claim was stale under the Limitation of Actions Act. 42.The appellant's legal representative submitted that in Mombasa SPMCC No. 1454 of 2016, the appellant sought to recover the outstanding sum of Kshs. 6,000,000.00 arising from the purchase price, but in the current suit, it is a claim for damages for the loss of use of the property. Those proceedings were predicated upon the respondent's violation of the sale agreement. Conversely, in the current matter, the claim for loss of use does not stem from a breach but rather from the property's deterioration attributable to the respondent's negligence. This case differs substantially because it is rooted not in the sale agreement but in events that occurred after the respondent departed the property. The appellant contends that the property sustained damage and became insecure, resulting in the loss of its utility. Accordingly, this claim is founded upon the respondent’s conduct and the damages inflicted, rather than a breach of the sale agreement. It is submitted that the causes of action in the two cases are categorically distinct in both legal and factual terms. 43.Concerning the limitation of actions, counsel asserts that the respondent’s lawsuit was initiated on April 8, 2019. This date serves as the basis for calculating the limitation period for the counterclaim under section 35 of the Limitation of Actions Act, rather than the filing date in May 2024. The subject of the counterclaim pertains to the respondent’s neglect and dereliction of the subject property, which transpired upon her vacating it. Such conduct constitutes a continuing injury that persisted at the time the counterclaim was lodged. Based on the aforementioned, counsel contends that the statute of limitations did not bar the appellant’s counterclaim, and consequently, the trial Magistrate erred both in law and in fact in dismissing it. 44.Conversely, counsel for the respondent contends that the appellant's counterclaim is barred by res judicata, as it should have been presented as an alternative claim in the lawsuit initiated and prosecuted against the respondent in Mombasa, pursuant to explanatory Note 4 in Section 7 of the Civil Procedure Act. The appellant's counterclaim is considered to have been raised and subsequently dismissed in her case at Mombasa. Furthermore, the counterclaim was appropriately dismissed on the grounds of res judicata, and the alleged claim for special damages for loss of use was not adequately pleaded. Additionally, she could not seek compensation for loss of use whilst simultaneously refusing to refund the purchase price, exemplifying an inconsistency. The Learned Magistrate duly considered all pertinent and material factors in allowing the respondent's suit and dismissing the counterclaim. The Magistrate reasoned that the Agreement was both null and void and also frustrated. 45.I concur that the statute of limitations did not bar the counterclaim because the limitations period should be calculated from the same date as the initiating action in which the counterclaim is asserted. This implies that, for purposes of the statute of limitations, the period begins on the date the original claim was filed, rather than on the date the counterclaim was filed. See Beatrice Mumbi Wamahiu v. Mobil Oil Kenya Ltd [2011] KEHC 1293 (KLR). 46.Conversely, I concur that the counterclaim was properly dismissed under the doctrine of res judicata. I assert this based on the Trial Magistrate's reasoning and the respondent's counsel's submission, with which I agree, that the matter concerning the use of the suit property should have been raised in the Mombasa lawsuit. It was an issue that was constructively raised. Furthermore, the respondent's attempt to seek compensation for the loss of use while concurrently refusing to refund the purchase price exemplifies an inconsistency. The appellant cannot retain the suit property and the purchase price at the same time. Further, the claim for loss of use was not properly prosecuted; it is merely pleaded and not substantiated. 47.In my perspective, the parties' litigation history exemplifies a series of legal actions undertaken in installments concerning the same matter, resulting in an absurdity, as evidenced by these proceedings. 48.Consequently, and from the above analysis, my final findings will be as follows:a.The judgment of Honourable James Ongondo delivered on 19th February 2025 be and is hereby set aside and be substituted therefor with an order dismissing the respondent’s suit and the appellant’s counterclaim.b.Each party shall bear its own costs of this appeal and those in the Magistrate’s Court. DATED, SIGNED, AND DELIVERED ELECTRONICALLY IN NYERI ON THIS 13TH DAY OF MAY, 2026E. K. MAKORIJUDGEIn the presence of:Mr. Oluga for the AppellantMr.Kinyua for the RespondentKendi: Court Assistant