https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4563

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MERU** **ELC APPEAL NUMBER E001 OF 2026** DOUGLAS MUGAMBI KAURUNGA ……………………..….APPELLANT VERSUS SOPHIA NKATHA KAARIA ……………………….…….1ST RESPONDENT ***[Being an appeal from the Judgment/decree of the Chief Magistrate court at Maua by Hon. Felix Kombo [CM delivered on 05 of March, 2026 in MCELC Case Number E139 of 2024]*** ***JUDGMENT*** 1. The Subject Appeal touches on and concerns the legal implications of the doctrine of frustration and in particular, whether a party who is guilty of breach of contract can invoke and deploy [sic] the doctrine of frustration to defeat the sanctity of contract. In addition, the subject appeal also brings to the fore the legal principle pertaining to parties being bound by the terms of the contract, unless certain circumstance[s] exists to warrant rescission of the contract. 2. In the case of**Kwanza Estates Limited v Jomo Kenyatta University of Agriculture and Technology [2024] KESC 74 (KLR),** the Supreme court of Kenya, considered the import and tenor of the doctrine of frustration; and in particular, the circumstances underpinning its applicability. 3. The apex court stated thus: ***“The applicability of the doctrine of frustration is not new to our jurisdiction. As noted by the Court of Appeal in the present matter, the principles of the doctrine of frustration have been restated repeatedly and are now old hat. The doctrine of frustration has been applied severally by the Court of Appeal for instance in the cases of***[***Kenya Airways Limited v Satwant Singh Flora***](https://kenyalaw.org/akn/ke/judgment/keca/2013/545)***[2013] eKLR,***[***Charles Mwirigi Miriti v Thananga Tea Growers Sacco Ltd & another***](https://kenyalaw.org/akn/ke/judgment/keca/2014/538)***[2014] eKLR and***[***Five Fourty Aviation Limited v Richard Oloka***](https://kenyalaw.org/akn/ke/judgment/kehc/2015/7096)***[2015] eKLR. The Kenyan Courts acknowledge that the doctrine of frustration, first established in***[***Taylor v Caldwell***](https://law.justia.com/cases/foreign/united-kingdom/122-eng-rep-309-3-best-s-826-1863.html)***122 Eng Rep 309 (1863), discharges parties from a contract when unforeseen events destroy the subject matter or render performance impossible without fault from either party. Further, modern interpretation, as articulated by Lord Radcliffe in***[***Davis Contractors Ltd v Fareham UDC***](https://www.casemine.com/judgement/uk/5a8ff87860d03e7f57ec1060)***(1956) AC 696, recognizes frustration where a contractual obligation becomes radically different due to external circumstances, beyond what was originally agreed. The doctrine aims to ensure fairness and mitigate the rigidity of strict contractual obligations but must be invoked cautiously.”*** 1. However, before venturing to engage with the critical issues, which belie the subject appeal, it is necessary to put the matter into context. In this regard, it suffices to supply the background facts underpinning the dispute between the Appellant and the Respondent herein. 2. The facts are: The Respondent herein entered into and executed a lawful sale agreement with the Appellant; the sale agreement touched on and concerned the sale of a portion of LR No. Amwathi/Maua/7765 [the suit property]; the suit property was registered in the name of the Respondent; the sale agreement was reduced into writing; the sale agreement was duly executed by the respective parties; the sale agreement was duly attested; and the Respondent was duly paid the stakeholder sum. 3. Additionally, it suffices to state thus: The Respondent thereafter proceeded to and applied for consent to subdivide the suit property; the consent for subdivision was duly granted; the suit property was sub-divided; the designated surveyor duly prepared the mutation; the mutation was duly approved; and thereafter the resultant sub-division[s] were assigned parcel numbers. 4. Be that as it may, the Respondent herein, appears to have developed cold feet and thus the contract was not consummated. The failure or reluctance on the part of the Respondent to conclude the contract provoked the filing of the suit before the lower court. The Appellant sought various reliefs and in particular, an order of specific performance to compel the Respondent to transfer the designated portion of the suit property, which was the subject of the contract. 5. The Respondent duly entered appearance and thereafter filed a statement of defence dated the 03.03.2024. The statement of defence was subsequently amended in terms of the amended statement of defence and counter claim dated the 16.12.2025. The Respondent acknowledged the sale agreement. However, the Respondent posited that the sale agreement was frustrated and thus the transfer of the suit property, if at all, would occasion severe hardship and difficulties. 6. On the other hand, the Respondent intimated that same was ready and willing to refund the consideration that had been paid by the Appellant. However, the Respondent contended that the Appellant was not entitled to specific performance. 7. The suit in the lower court was heard and disposed of *vide* Judgment delivered on the 13.03.2026, whereupon the Learned Trial Magistrate [Hon. Felix Kombo- Chief Magistrate] found and held that the contract between the Appellant and the Respondent was frustrated. In addition, the trial court also found that the Appellant had not established a basis to warrant the grant of the orders of the specific performance. Moreover, the trial court proceeded to and dismissed the Appellant’s suit with costs, while allowing the counter claim in terms of prayer 2 thereof. 8. Dissatisfied with the Judgment and the consequential decree arising therefrom, the Appellant filed the memorandum of appeal dated the 12.03.2026 and wherein the Appellant has raised various grounds. The grounds are: 9. ***That the Learned Trial Magistrate erred in law and in fact by holding that the sale agreement between the parties was frustrated and incapable of performance, despite clear evidence that the process of subdivision had already been undertaken, approved, and mutation forms prepared creating the portion intended for the Appellant.*** 10. ***The leaned trial magistrate erred in law and in fact by relying on the testimony of the county surveyor to conclude that the agreement was incapable of performance yet the said witness expressly admitted under cross examination that he had not visited the ground and could not conclusively state that the subdivision was physically impossible.*** 11. ***The leaned trial magistrate erred in law and in fact in failing to appreciate that the subdivision of the suit property had already been approved and parcel numbers issued, thereby demonstrating that the transaction was viable and capable of implementation.*** 12. ***The leaned trial magistrate erred in law and fact in holding that the agreement had been frustrated by operation of Section 8 of the Land Act, while failing to consider that the said provision expressly grants the High Court Jurisdiction to extend the period within which consent may be obtained.*** 13. ***The leaned trial magistrate erred in law and in fact in failing to find that the Respondent’s refusal to attend the Land Control Board for the second consent to transfer the land was the primary cause of the delay, and the fact that a party cannot rely on her own default to defeat an otherwise valid contract.*** 14. ***The leaned trial magistrate erred in law and in fact by failing to appreciate that the Respondent had substantially benefitted from the contract, having received Kshs. 1,270,000 from the Appellant, thereby entitling the Appellant to equitable remedy of specific performance.*** 15. ***That the learned trail magistrate erred in fact in failing to find that the Respondent’s allegation regarding the alleged economic disadvantage of the remaining parcel was an afterthought, unsupported by the sale agreement and contrary to the evidence showing that parties had agreed on the specific portion to be excised.*** 16. ***The leaned trial magistrate erred in law and in fact in dismissing the Appellant’s suit with costs despite clear evidence of substantial performance and breach of contract by the Respondent, and in failing to award the Appellant damage and interest for the breach or, in the alternative, to restore the parties to their precontract position without penalizing the Appellant in cost.*** 17. The Subject Appeal came up for direction[s] on the 14.05.2026, whereupon learned counsel for the Appellant intimated to the court that same had filed and served the record of appeal. In addition, learned counsel posited that the record of appeal was complete. To this end, counsel sought direction[s] as pertains to the hearing and disposal of the appeal. Moreover, counsel proposed to have the appeal canvassed *vide* written submissions. 18. With the concurrence of learned counsel for the Respondent, the court proceeded to and issued directions. The directions were: The appeal shall be heard before one Judge sitting at Meru; the appeal shall be canvassed by way of written submissions; the Appellant shall file and serve written submissions within 14 days from the date of the directions; the Respondent shall file and serve written submissions within 14 days from the date of service; and the Appellant shall be at liberty to file and serve rejoinder submissions [if any] within 7 days from the date of service. 19. Learned counsel for the Appellant filed written submissions dated the 26.05.2026 and wherein the Appellant has highlighted five [5] key issues. The issues highlighted by the Appellant are: Whether the Learned Trial Magistrate erred in holding that the agreement between the parties had been frustrated; whether the Learned Trial Magistrate erred in holding that the subdivision and transfer process was incapable of implementation; whether the Learned Trial Magistrate erred in applying **Sections 6 and 8 of the Land Control Act;** whether the Appellant was entitled to specific performance; and whether the Appellant was entitled to damages/refund and costs, in the alternative. 20. Regarding the first issue, learned counsel for the Appellant has submitted that the parties entered into and executed a lawful sale agreement and wherein the Respondent covenanted to sub-divided the designated portion of the suit property and thereafter facilitate the transfer thereof in favour of the Appellant. It was posited that the terms of the sale agreement were clear and explicit. In particular, it has been submitted that the Respondent appreciated and knew that the suit property was to be sub-divided in an endeavor to actualize the transfer. 21. Furthermore, learned counsel for the Appellant has submitted that following the entry into the sale agreement, the Respondent sought and obtained the land control board consent for sub-division. In addition, it has been submitted that thereafter a licensed [Nominated] surveyor was engaged to undertake the subdivision and the preparation of the mutation. 22. It has been submitted that the licensed surveyor indeed undertook the survey; prepared the mutation; subjected the mutation to approval by the Sub-County Surveyor; and thereafter procured the issuance of new parcel numbers. 23. In view of the foregoing, it has been submitted that the terms of the agreement and in particular, the transfer of the sold portion [which had been duly subdivided] was not frustrated. Moreover, it has been submitted that the implementation of the agreement was not rendered impossible, to warrant the finding that the contract was frustrated. 24. To buttress the submissions touching on and concerning the applicability of the doctrine of frustration, learned counsel for the Appellant has cited and referenced the decision in the case **of Davis Contractors Limited versus Fareham UDC [1956] AC 696**, wherein the doctrine was highlighted. 1. The second issue, that has been canvassed by learned counsel for the Appellant touches on and concerns the interpretation of the evidence of DW1, namely; the surveyor. It has been contended that the Learned Trial Magistrate misapprehended and misapplied the evidence of the surveyor, in coming to the conclusion that the subdivision of the suit property was incapable of implementation. 2. Learned counsel for the Appellant has submitted that the conclusion by the Learned Trial Magistrate is based on misunderstanding of the totality of the evidence that was tendered by DW1. In any event, it was submitted that the Learned Trial Magistrate failed to discern the contradictions that were apparent in the evidence of DW1 [surveyor]. 3. According to counsel for the Appellant, the Learned Trial Magistrate did not correctly interpret the evidence of the surveyor. Moreover, it was submitted that the surveyor did not speak to impossibility, but to economic viability of the subdivision. 1. The next issue that has been submitted upon relates to the invocation of the provisions of **Sections 6 and 8 of the Land Control Act.** It has been submitted that the Learned Trial Magistrate erred in law in holding that the contract between the Appellant and the Respondent, had been frustrated because no land control board consent for transfer was procured. Counsel posited that the Learned Trial Magistrate failed to appreciate that the first control board consent for subdivision had indeed been granted and the subdivision undertaken. 2. Additionally, it was submitted that it is the Respondent who had declined to present herself to the land control board for purposes of issuance of the second consent, namely; the consent to transfer. Nevertheless, it was posited that the refusal by the Respondent to present herself for purposes of the obtaining the consent to transfer cannot be constituted as a basis to found frustration of the contract. 3. Regarding the question of specific performance, learned counsel for the Appellant has submitted that the Appellant duly established the requisite element[s] to warrant the grant of the orders of specific performance. In particular, learned counsel submitted that the contract between the Appellant and the Respondent was lawful and same was executed in accordance with the provisions of **Section 3 [3] of the Law of Contract Act, Chapter 23 Laws of Kenya.** 4. It was the further submission by learned counsel for the Appellant, that the Appellant had equally complied with the terms of the sale agreement. To this end, counsel submitted that the Appellant had substantially performed, and remained willing to perform, his part of the contract. 5. With regard to the last issue, learned counsel for the Appellant has submitted that in lieu of specific performance, the Appellant was entitled to refund of the sum of Kshs. 1,270,000/= only; damages for breach of contract and costs. However, counsel has submitted that the Learned Trial Magistrate only decreed refund without more. 6. In support of the submissions that the Appellant was entitled to inter alia, damages for breach of contract in lieu of specific performance, learned counsel has cited and relied upon two decisions. The decisions are: **Habib Zurich Finance Kenya Limited versus Muthoga and another [2002] eKLR; and Margaretville Asami Machio and another versus Musa Mwera Athuman [2025] KECA,** respectively. 7. Flowing from the foregoing, learned counsel for the Appellant has submitted that the appeal before the court is meritorious. The court has been invited to allow the appeal; set aside the impugned Judgement; and substitute therefore, an order allowing the Appellant’s suit in the lower court. 8. The Respondent filed written submissions dated the 22.06.2026 and wherein the Respondent has highlighted five [5] key issues. The issues are: The contract between the Appellant and the Respondent was frustrated and its performance rendered impossible; the Learned Trial Magistrate correctly apprehended and applied the evidence of the surveyor [DW1]; the contract between the Appellant and the Respondent was defeated by the provisions of Section 6 of the Land Control Act; the Appellant did not meet/satisfy the elements to warrant the grant of an order of specific performance; and the Learned Trial Magistrate correctly reviewed the evidence and applied the relevant legal principles in arriving at the impugned Judgment. 9. Learned counsel for the Respondent has thereafter invited the court to find and hold that the doctrine of frustration duly applied to the contract between the Appellant and the Respondent. In particular, it was contended that the issue of the access road, was not contemplated by the parties. Moreover, it has been submitted that the implementation of the subdivision scheme and the establishment of the road of access will pose great challenges and render the reminder portion economically unviable. 10. Additionally, it was the submission by the learned counsel for the Respondent that the impossibility and unviability of the implementation of the subdivision, was captured and highlighted in the evidence of the surveyor. In any event, it has been posited that the evidence of the surveyor, was neither controverted nor impeached. To this end, it has been submitted that the Learned Trial Magistrate was right in adopting and relying upon the evidence of the surveyor. 1. Premised on the foregoing submissions, learned counsel for the Respondent has contended that the subject appeal is bereft of merits and thus same ought to be dismissed. On the contrary, it has been submitted that the Judgment of the Learned Trial Magistrate is well grounded and thus same ought to be affirmed. 2. Having reviewed the record of appeal; the grounds of appeal; the Judgment of the lower court; and upon considering the submissions by/ on behalf of the respective parties, three[3] key issues emerge for consideration and determination by the court. The issues are: Whether the Respondent breached the terms of the sale agreement/contract; Whether the Appellant established the elements and met the threshold for the grant of the orders of specific performance or otherwise; and Whether the contract between the Appellant and the Respondent was frustrated in the manner held by the trial court or otherwise. 3. Before venturing to address the thematic issues that have been isolated in the preceding paragraph, it is important to highlight that what is before me is a first Appeal. By virtue of being a first Appeal, this court is mandated to undertake a fresh and exhaustive scrutiny, review, and analysis of the totality of evidence tendered before the court of first instance. The court is obligated to review the evidence and determine whether the finding[s] and conclusion[s] arrived at by the trial magistrate accord with the evidence on record and the applicable legal principles. 4. The court is seized of the authority and jurisdiction to arrive at an independent conclusion and to depart from the findings of the trial court. However, it is established that the appellate court can only depart from the factual finding[s] and conclusion[s] of the trial court where it is demonstrated; that the conclusions were based on no evidence; the conclusions are perverse to the evidence on record; the findings are based on misapprehension of the evidence and law; and that there is a demonstrable error of principle, which vitiates the finding[s] of the Trial Court. 5. Suffice it to state that, barring the foregoing, the first appellate court is enjoined to defer to the findings and conclusions of the trial court. Notably, the jurisdiction of the first appellate court to interfere with the findings/conclusions of the trial court is circumscribed. The jurisdiction is not at large. The Jurisdiction is not to be exercised at will. It cannot be invoked for the mere asking. 6. The jurisdictional remit of the first appellate court, while undertaking its mandate as pertains to the first Appeal, has been the subject of various court decisions. In the case of **Odera t/a AJ Odera & Associates v Machira t/a Machira & Co Advocates [2013] KECA 208 (KLR).** The Court of Appeal expounded on the scope of the jurisdiction. The court stated thus *“46. We also wish to be guided by the reasoning of this court in the case of* ***Mwana Sokoni versus Kenya Business Limited (1985) KLR*** *931 page 934,934 thus:-“Although this court on Appeal will not lightly differ from the Judge at first instance on a finding of fact, it is undeniable that we have the power to examine and re-evaluate the evidence on a first Appeal if this should become necessary. As was said by the House of Lords in Sottos Shipping versus Sauviet Sohold, The Times, March 16, 1983.“It is uncertain whether their Lordships should have reached the same conclusion on the evidence, but it is important that, sitting in the appellate court they should be over mindful of the advantages enjoyed of the trial Judge who saw and heard the witnesses and was in a comparably better position than the Court of Appeal to assess the significance of what was said, how it was said, and equally impotent what was not said” Again in Peters versus Sunday Post Limited (1958) EA424, a decision of the Court of Appeal for Eastern Africa, Sir Kenneth O’ Conner, P said at page 429: “It is a strong thing for an appellate court to differ from the finding on a question of fact of the Judge who tried the case and who has had the advantage of seeing and hearing and the witnesses.”* 1. Recently, the Court of Appeal revisited the jurisdictional remit in the case of **Kenya Urban Roads Authority & another v Belgo Holdings Limited [2025] KECA 764 (KLR).** The Court highlighted the principle in the following manner: *“We have considered the Appeal, and this being a first Appeal, we are under a duty to subject the entire evidence and the judgment to a fresh and exhaustive examination with a view to reaching our own conclusions in the matter. In carrying out this duty, we have to remember that we had no opportunity of seeing and hearing the witnesses who testified during the trial and to make an allowance for the same. We have also to remember that it is a big thing to overturn the findings of a trial court which has had the singular opportunity of reaching its conclusions based on a combination of the evidence adduced and observation by the court of the demeanour of witnesses. In a nutshell, a first appellate court must of necessity proceed with caution in deciding whether or not to interfere with the findings of a trial court, but of course, where such findings are not supported by the evidence on record or where they are founded on a misapprehension of the law, the axe must fall on the impugned judgment. This position is anchored in section 78 of the*[*Civil Procedure Act*](https://new.kenyalaw.org/akn/ke/act/1924/3)*, which requires a first appellate court to re-evaluate, reassess, and reanalyse the extracts of the record and draw its own conclusions. These provisions have been underscored in numerous decisions of the Superior Courts among them Peters v Sunday Post Limited [1958] EA 424, where the predecessor to this Court expressed itself as follows: “Apart from the classes of case in which the powers of the Court of Appeal are limited to deciding a question of law an appellate court has jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this really is a question of law), the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. This is not to say that the Judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to the courts of Appeal) of having the witnesses before him and observing the manner in which their evidence is given…Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial Judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial Judge’s conclusion. The appellate court may take the view that, without having seen or heard the witnesses it is not in a position to come to any satisfactory conclusion on the printed evidence. The appellate court, either because the reasons given by the trial Judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court. It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question…* *It not infrequently happens that a decision either way may seem equally open, and when this is so, then the decision of the trial Judge who has enjoyed the advantages not available to the appellate court becomes of paramount importance and ought not be disturbed. This is not an abrogation of the powers of a Court of Appeal on questions of fact. The judgment of the trial Judge on the facts may be demonstrated on the printed evidence to be affected by material inconsistencies and inaccuracies, or he may be shown to have failed to appreciate the weight or bearing of circumstances admitted or proved or otherwise to have gone plainly wrong.” [See also the decision in the case of* ***County Government of Bungoma & 2 others v JOO & 2 others [2024] KECA 1377 (KLR) and******County Government of Narok v Ntutu & 2 others [2026] KECA 880 (KLR) –*** *paragr*aphs 56 and 57 thereof. 1. Bearing in mind the principles enunciated in the decisions [supra], I am now well poised to revert to the subject matter and to address the thematic issues highlighted elsewhere hereinbefore. I beg to start with the first issue, namely; Whether the Respondent breached the terms of the sale agreement/contract. 2. It is common ground that the Appellant and the Respondent duly entered into and executed a sale agreement. The sale agreement was duly reduced into writing. The sale agreement related to and concerned the sale of a specific and designated portion of the suit property. For coherence, the portion of the suit property, which was the subject of the sale, was known to both parties. 3. In addition, there is no gainsaying that the Respondent duly pointed out the portion in question and thereafter, allowed the Appellant to enter upon and take possession thereof. In any event, evidence abound that the Appellant duly entered upon and took possession of the sold portion. The Appellant thereafter proceeded to and fenced the portion. This much is conceded to by the Respondent in her evidence while under cross examination. [See page 85 of the record of appeal]. 4. Furthermore, it is also worthy to underscore that the Respondent herein was duly paid the sum of Kshs. 1, 270,000/= only, which comprised of the stake- holder sum, together with the subsequent payments at the foot of the acknowledgement dated 18.06.2024. Suffice it to state that the payments of the said monies is not in dispute. 5. It is also imperative to highlight that upon receipt of the monies in question, the Respondent proceeded to and procured a land control board consent, for purposes of sub-divisions. Moreover, it is not lost on me that the land in question was thereafter sub-divided; the mutation was prepared and perfected; the mutation was approved; and new parcel numbers were issued. 6. The sum total of the actions, which have been alluded to in the preceding paragraphs, demonstrate that the Respondent was indeed keen to actualize the terms of the contract. However, somewhere the Respondent developed reluctance and sought to refund the consideration. The Respondent started to raise the issue that the implementation of the contract would culminate into the creation of a road of access. In addition, the Respondent posited that the road of access, if created, would eat onto her remaining portion. The Respondent hatched the plot that the implementation of the subdivision scheme would [sic] be unviable economically. 1. With the foregoing perception, the Respondent became belligerent and declined [refused] to present herself to the land control board for purposes of the second consent. It is because of the conduct of the Respondent that the portion of the suit property was not transferred to the Appellant. In any event, it is worthy recalling that the Appellant had actually paid to and in favour of the Respondent the consideration, save for a small portion thereof. 2. I wish to point out that parties do not merely enter into and execute contract[s] for the sake of it. Moreover, where parties enter into contracts, same enter into such contracts with the sole intention of performing the contracts. A party, the Respondent not excepted, cannot be allowed to induce another into a contract and thereafter, seek to renege on/resile from the contract at will. Such conduct does not sit well with the sanctity of contracts. Instructively, parties are ordinarily bound by the contracts, unless there does exist sufficient basis to the contrary. 3. I repeat that a party who has entered into a contract, cannot just walk away from the contract and thereby prejudice the rights of the other party, without any lawful basis. 4. In the case of **Centurion Engineers & Builders Limited v Kenya Bureau of Standards [2023] KECA 1289 (KLR),** the Court of Appeal reiterated and reaffirmed the legal position, namely; that parties are bound by the terms of the contract. 5. The court stated thus: **“As this Court has severally stated, and now a longstanding principle of law, that parties to contract are bound by the terms and conditions thereof, and that it is not the business of courts to rewrite such contracts. In**[***National Bank of Kenya Limited v Pipe Plastic Samkolit (K) Ltd***](http://kenyalaw.org/caselaw/cases/view/1032)**[2002] 2 EA 503 [2011] eKLR at 507, this Court stated:“A court of law cannot rewrite a contract between parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded or proved.” See also *Pius Kimaiyo Langat v Co-operative Bank of Kenya Limited* [2017] eKLR.”** 1. The Respondent herein having entered into the sale agreement with the Appellant; having received a substantial chunk of the consideration; having procured the consent to subdivide the suit property; having executed the mutation form; and having granted access to the Appellant to take possession of the suit property, same [Respondent] was obligated to conclude the contract. 2. I wish to point out that the change of mind by the Respondent and the consequential procrastinations by the Respondent, constitute breach of the contract. In simple terms, it is my finding and holding that the Respondent was guilty of breach of the terms of the sale agreement. Moreover, no plausible reason or basis was offered to underpin the breach. Suffice it to state that procrastinations and prevarication[s], do not found lawful basis for reneging from a lawful contract. 3. Next, is the issue of whether the Appellant established the elements and satisfied the threshold to warrant the grant of orders of specific performance or otherwise. To begin with, the law as pertains to the grant of an order of specific performance is now well settled. In the case of **Michael Murithi Muthii v Cecilia Wanjiru Cooper & 3 others [2021] KECA 964 (KLR)** the Court of Appeal reiterated the legal principles underpinning the grant of specific performance. 1. The court stated thus: ***“In*Charles Karate Kiarie & 2 Others v. Administrators of John Wallace Mathare (deceased) & Others [2013] eKLR*this Court sustained an order for specific performance issued by the High Court to enforce an agreement*“for sale of 2.5 acres to be excised from the vendor’s property LR No. 2243/3.” *In rejecting the contention that the agreement was void for uncertainty, the Court expressed itself thus:*** **“In our view the terms of the contract were sufficiently stated. The necessary terms are set out in the agreement for sale. The parties to the agreement are clearly identified. The property sold under the agreement for sale is sufficiently described and clearly identified. The price is also indicated. We are not persuaded, as submitted by counsel for the Appellants, that the remedy of specific performance was not available to Mathare and Rimui on account of uncertainty as to the property that was being sold.”** ***We respectfully agree with that reasoning.*** ***As regards whether an order of specific performance was properly issued in the circumstances of this appeal, it is worth repeating that such an order is an equitable remedy issued at the discretion of the court. It will be issued where the judge is satisfied that it is equitable to grant it. As is the norm, an equitable remedy will not be granted to a party who does not deserve it, for example by reason of unclean hands or failure to himself to do equity. Where a judge has exercised his discretion, this Court will not interfere unless it is demonstrated that he misdirected himself in law, or he considered matters he should not have considered or he failed to considered matters he should have considered or that the decision is plainly wrong. (See* United India Insurance Co. Ltd v. East African Underwriters (Kenya) Ltd [1985] E.A 898).”** 1. Did the Appellant establish the requisite elements? It is important to highlight that the sale agreement which was executed between the Appellant and the Respondent, was reduced into writing and thereafter same was duly attested. The sale agreement complies with the provisions of **Section 3 [3] of the Law of Contract Act, Chapter 23 Laws of Kenya.** 2. Similarly, it is important to underscore that the Respondent was duly paid the sum of Kshs. 1,270,000/= only, and which sum was duly acknowledged. In any event, the Respondent herein conceded receipt of the money. It then means that the Appellant had substantially performed his part of the bargain. 3. Furthermore, there is no gainsaying that the portion of the land, which was being sold to the Appellant was well designated. For good measure, clause [7] of the sale agreement clearly indicate[s] that the site of the land had been pointed out and was known to the Appellant. 4. Additionally, there is evidence that the Appellant entered upon; took possession; and fenced the sold portion of the land. The entry upon the sold portion of the land denotes that what was being sold was clearly identified and agreed upon. It was known. It was demarcated. 1. It is also common ground that the Respondent proceeded to and obtained the consent to subdivide. The land was thereafter subdivided. The mutation form was thereafter approved culminating into the issuance of new parcel numbers. 2. The bottom line is to the effect that the sale agreement did not suffer from any legal infirmity or at all. Besides, there is evidence that the Appellant had substantially performed his part of the bargain. In any event, the Learned Trial Magistrate correctly found that the Appellant had substantially performed his part of the bargain. [See page 94 of the record of appeal – last paragraph]. 3. To my mind, the Appellant herein clearly met and established the ingredients underpinning the grant of an order of specific performance. The Appellant had substantially paid the purchase price and remained ready to conclude the transaction. Notably, the Appellant had proceeded to and paid monies in excess of the bit that was payable before the transfer, taking into account clause [2] and [3] of the sale agreement. 4. I now wish to turn to the last issue, namely; whether the contract between the Appellant and the Respondent was frustrated. It is important to highlight that the doctrine of frustration can only be invoked and relied upon where the circumstances making the performance of the contract impossible/ untenable, were unforeseen. The doctrine cannot be invoked and or relied on to aid a party, who is deliberately failing to comply with the terms of the contract. 5. Put differently, the doctrine cannot be called in aid of a person, who is guilty of breach of the Contract. Breach of contract is contra distinct from frustration. The two terminologies cannot be conflated. Certainly, not. 6. The law as pertains to the doctrine of frustration was illuminated by the Supreme Court of Kenya. The Supreme Court underscored the circumstance[s] wherein the said doctrine can be invoked. In particular, the court observed that the doctrine cannot be relied upon where a party is guilty of breach of contract. 7. In the case of **Kwanza Estates Limited v Jomo Kenyatta University of Agriculture and Technology [2024] KESC 74 (KLR),** the supreme court stated as hereunder: *“The applicability of the doctrine of frustration is not new to our jurisdiction. As noted by the Court of Appeal in the present matter, the principles of the doctrine of frustration have been restated repeatedly and are now old hat. The doctrine of frustration has been applied severally by the Court of Appeal for instance in the cases of*[*Kenya Airways Limited v Satwant Singh Flora*](https://kenyalaw.org/akn/ke/judgment/keca/2013/545)*[2013] eKLR,*[*Charles Mwirigi Miriti v Thananga Tea Growers Sacco Ltd & another*](https://kenyalaw.org/akn/ke/judgment/keca/2014/538)*[2014] eKLR and*[*Five Fourty Aviation Limited v Richard Oloka*](https://kenyalaw.org/akn/ke/judgment/kehc/2015/7096)*[2015] eKLR. The Kenyan Courts acknowledge that the doctrine of frustration, first established in*[*Taylor v Caldwell*](https://law.justia.com/cases/foreign/united-kingdom/122-eng-rep-309-3-best-s-826-1863.html)*122 Eng Rep 309 (1863), discharges parties from a contract when unforeseen events destroy the subject matter or render performance impossible without fault from either party. Further, modern interpretation, as articulated by Lord Radcliffe in*[*Davis Contractors Ltd v Fareham UDC*](https://www.casemine.com/judgement/uk/5a8ff87860d03e7f57ec1060)*(1956) AC 696, recognizes frustration where a contractual obligation becomes radically different due to external circumstances, beyond what was originally agreed. The doctrine aims to ensure fairness and mitigate the rigidity of strict contractual obligations but must be invoked cautiously.* *71.In summary, the doctrine of frustration releases parties from their contractual obligations when an unforeseen event fundamentally alters the nature of the contract, rendering further performance impossible or significantly different from the original agreement. Key principles include limitation to narrow circumstances, and reliance on events beyond the control or fault of the invoking party, the effect of bringing the contract to an end forthwith, without more and automatically. The final principle is the effect of fully discharging the parties from further liability under the contract from the moment the frustrating event occurs. Though accepted in civil law jurisdictions, the concept of partial discharge has been rejected in common law jurisdictions. This finds footing in the treatise Treitel on the*[*Law of Contract*](https://www.amazon.com/Treitel-Law-Contract-Edwin-Peel/dp/1847039219)*, 11th edition para 50-07 it stated that:“…the contract is either frustrated or remains in force. There is no such concept as partial or temporary discharge frustration on account of partial or temporary impossibility…the concept of partial discharge in English law is restricted to obligations which are severable, whether in point of time or otherwise”As a matter of logic, the doctrine of frustration operates to discharge a contract, bringing it to an immediate and definitive end. Once the doctrine is applied, the contract cannot be deemed suspended or temporarily inoperative; it is terminated entirely unless the parties expressly agree to revive it through a subsequent agreement.”* 1. Was the contract frustrated? The Respondent clearly knew that what was being sold was a portion of the suit property. The Respondent equally knew the site [ground location of the sold portion]. The Respondent pointed out the site. The Respondent allowed the Appellant to fence the portion. Quite clearly, the Respondent knew that the portion in question will have to be excised and a road of access would have to be created to reach/access the sold portion of the land. 2. The Respondent cannot now feign ignorance, nay, pretense, that she did not know that a road of access would be created. Similarly, the Respondent cannot pretend that she did not know that the creation of the road of access would eat onto a portion of the land. These facts were certainly known and foreseeable. For good measure, the contention that the creation of the road of access was not contemplated at the time of the sale agreement, is erroneous. I may add, mischevious. 3. It is also important to highlight that the reason being relied upon to underpin the frustration of the contract, was because the implementation of the subdivision would lead to unviable economic outcome. Surely, the parties understood the legal implications of the sale agreements and the fact that a sub-division process would have to be undertaken. The parties also knew; or had reason to know that the Sub-division scheme must be prepared and subjected to approval in accordance with the Survey Act, Chapter 299, Laws of Kenya. Pertinently, it was known that no Land can be Landlocked. Simply put, every piece of sub-division must have a road of access. 4. Moreover, it is not lost on me that the evidence of the surveyor [DW1] , which was being relied upon to anchor the finding of frustration, is not credible. Instructively, the said surveyor admitted that he had never visited the ground. How then, can the surveyor speak to the impossibility of implementing the subdivision scheme. At any rate, it is common ground that the sub-division Scheme had already been approved and the Mutation duly registered culminating into the New Parcel numbers. 5. Other than the foregoing, it is worthy recalling that the surveyor himself conceded that it was possible to implement the subdivision scheme. For the avoidance of doubt, this is what the surveyor said while under cross examination by learned counsel for the Appellant. ***“It is viable to excise the 5 points from the 22 points. There is no physical impediment in doing this. The concern by the owner was purely economical. I have never visited the ground.”*** 1. I do not understand the source or the basis upon which the Learned Trial Magistrate, found and held that the implementation of the contract was impossible. Suffice it to state that the concerns that were being raised by the Respondent are nothing to do with the impossibility. The Respondent was merely getting wise after the act, by [sic] generating economic concerns, which were known to her at the onset. 2. Finally, the Learned Trial Magistrate also invoked and deployed the provisions of **Sections 6 and 8 of the Land Control Act**, as further basis to anchor the findings on the frustration. However, it is not lost on me that the Respondent had neither based nor canvassed the said assertions at the foot of her statement of defence and counter claim dated the 16.12.2025. The same were also not part of the Evidence that was tendered before the Trial Court. The record of the court does not capture any such assertions. 3. It is trite and established that parties are bound by their pleadings. Similarly, courts of law are enjoined to determine the dispute[s] before them [courts] on the basis of the issues and pleadings, canvassed by the parties. Moreover, a court of law cannot generate own issue and proceed to make a finding [determination] thereon, without affording the parties the opportunity to address same. 4. In the case of **Independent Electoral and Boundaries Commission & another v Mule & 3 others [2014] KECA 890 (KLR),** the Court of Appeal reaffirmed the import of the doctrine of departure. The court highlighted the following: “***As the parties are adversaries, it is left to each one of them to formulate his case in his own way, subject to the basic rules of pleadings .For the sake of certainty and finality, each party is bound by his own pleadings and cannot be allowed to raise a different or fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The Court itself is as bound by the pleadings of the parties as they are themselves. It is no part of the duty of the Court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings. Indeed, the Court would be acting contrary to its own character and nature if it were to pronounce any claim or defence not made by the parties. To do so would be to enter upon the realm of speculation. Moreover, in such event, the parties themselves, or at any rate one of them might well feel aggrieved; for a decision given on a claim or defence not made or raised by or against a party is equivalent to not hearing him at all and thus be a denial of justice....*** ***In the adversarial system of litigation therefore, it is the parties themselves who set the agenda for the trial by their pleadings and neither party can complain if the agenda is strictly adhered to. In such an agenda, there is no room for an item called “Any Other Business” in the sense that points other than those specific may be raised without notice.*** 1. *In a nutshell*, it is my finding and holding that the doctrine of frustration, which was relied upon by the Learned Trial Magistrate, was inapplicable considering the circumstance[s] of the matter. Moreover, the Learned Trial Magistrate misapprehended the applicability of the said doctrine and thus improperly applied same. **Conclusion** 1. It is the Respondent who had sought to rely on the doctrine of frustration. In this regard, the Respondent bore the burden of establishing the applicability of the said doctrine. Sadly, the Respondent failed to meet the threshold. 2. On the other hand, the Appellant bore the burden of proving that the contract had been breached and by extension, that same was entitled to specific performance. The totality of the evidence that was tendered, showed that the Appellant had established his case to the requisite standards. 3. On the basis of the evidence on record, I find and hold that the Learned Trial Magistrate misapprehended the doctrine of frustration and thereby arrived at an erroneous conclusion. The conclusion that was arrived at by the Learned Trial Magistrate is not anchored on the evidence on record. 4. In the circumstances, and bearing in mind the principle[s] in the case of ***Mwanasokoni versus Kenya Bus Services Limited [1985] eKLR,*** I am minded to and do hereby depart from the findings of the trial court. Conversely, I do find that the Appellant duly proved his case. **Final orders:** 1. Flowing from the foregoing, the final orders that commend themselves to the court are: 2. ***The Appeal be and is hereby Allowed.*** 3. ***The Judgment of the Learned Trial Magistrate dated the 13.03.2026 be and is hereby set aside.*** 4. ***In lieu thereof, Judgment be and is hereby entered in favour of the Appellant as hereunder:*** 5. ***An order of specific performance be and is hereby issued directing the Respondent to complete and conclude the contract by facilitating the transfer and registration of the portion measuring 0.05 acres out of L R. No. Amwathi/Maua/7765 to the Appellant.*** 6. ***The Respondent shall execute the conveyance documents and obtain the requisite consent within 60 days from the date hereof.*** 7. ***In default by the Respondent to execute the conveyance documents [instruments] and obtain the consent, the Deputy Registrar of this court shall execute the relevant instrument to facilitate the effective transfer of the designated portion of the suit property.*** 8. ***The Appellant herein shall however deposit the balance of the purchase price amounting to Kshs. 130,000/= only with the deputy registrar within 60 days from the date hereof and the monies shall be held by the deputy registrar pending effective transfer.*** 9. ***Thereafter, the monies in terms of clause [iv] shall be released to the Respondent.*** 10. ***Costs of the appeal be and are hereby awarded to the Appellant.*** 11. ***The Appellant shall also have costs of the suit and the counter claim in the lower court.*** 12. ***The Costs in terms of clause [vi] and [vii] shall be agreed upon and in default, be taxed in the conventional manner.*** 13. It is so ordered. **DATED, SIGNED AND DELIVERED AT MERU THIS 13TH DAY OF JULY, 2026** **OGUTTU MBOYA, FCIArb; CPM [MTI].** **JUDGE** In the presence of**:** Court Assistant: Zakayo Mr. Ngunjiri for the Appellant. Ms. Asuma holding brief for Mr. Mutembei for the Respondent.