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Cheruiyot v Wambua (Civil Appeal E375 of 2025) [2026] KEHC 8671 (KLR) (Civ) (18 June 2026) (Judgment) Neutral citation: [2026] KEHC 8671 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E375 of 2025 BW Murunga, J June 18, 2026 Between Ernest Kiprotich Cheruiyot Appellant and Ruth Mutheu Wambua Respondent (Being an appeal against the entire Judgment of Hon. L. Ambasi, Chief Magistrate, delivered on 26th February 2025 in Milimani CMCC No. E10103 of 2021) Judgment Background 1.This is an appeal arising from the Judgment of Hon. L. Ambasi, Chief Magistrate, delivered on 26th February 2025 in Milimani CMCC No. E10103 of 2021. The dispute traces its origins to the sale of a residential property known as L.R. No. 209/12221/45, situate in South C, Nairobi. 2.By an agreement for sale dated 4th November 2015, the Appellant (then the Defendant) agreed to sell the property to the Respondent (then the Plaintiff) at a consideration of Kshs. 15,000,000/=, of which a deposit of Kshs. 3,000,000/= was paid, with the balance to be settled within 120 days. It was common ground that the property stood charged to Standard Chartered Bank to secure facilities advanced to the Appellant. 3.Completion did not proceed as planned. The Respondent, unable to secure mortgage financing within the stipulated period, negotiated a fresh arrangement, and the parties executed a novated agreement for sale dated 28th January 2016 under which the consideration was revised upward to Kshs. 15,200,000/= and the deposit increased. 4.The Respondent was let into possession in or about November/December 2016 pending completion, even though the purchase price had not been fully settled and the charge had not been discharged. The Appellant did not clear his indebtedness to Standard Chartered Bank, and in 2017 the Bank moved to realise its security. The parties jointly resisted the intended sale in Nairobi CMCC No. 7803 of 2017, but the court declined to restrain the Bank. 5.To preserve the property, the Respondent ultimately negotiated directly with Standard Chartered Bank and undertook to settle the Appellant’s outstanding liabilities, which by then had escalated substantially and extended to the Appellant’s unsecured personal facilities. The parties then executed a deed of variation dated 25th January 2019, after which the Respondent settled the sums demanded by the Bank, procured the discharge of the charge, and had the property transferred into her name, meeting various incidental costs in the process. 6.She subsequently sued the Appellant at the trial court for the losses she claimed to have suffered. The trial court found the Appellant liable for breach of the agreements and for misrepresentation, held that he had been unjustly enriched, and entered judgment for the Respondent for special damages of Kshs. 10,112,101/= together with interest at court rates from the date of filing the suit. It is that judgment which provokes the present appeal, brought on the eight grounds set out in the Memorandum of Appeal dated 27th March 2025. The Appellant’s Submissions 7.The Appellant, through M/s Mola Kimosop Advocates, mounts a frontal challenge to the jurisdiction of the trial court. He contends that the dispute, having arisen from agreements for the sale of land, fell within the preserve of the Environment and Land Court under Article 162(2) of the Constitution and Section 13 of the Environment and Land Court Act, and that the Magistrate’s Court sitting in its ordinary civil jurisdiction was incompetent to entertain it. Relying on Co-operative Bank of Kenya Limited v Patrick Kang’ethe Njuguna & 5 Others [2017] eKLR and Suzanne Achieng Butler & 4 Others v Redhill Heights Investments Limited [2016] eKLR, he urges the “predominant purpose test” and submits that the transaction was predominantly one for land. He adds that jurisdiction may be raised at any stage, even on appeal. 8.On the merits, the Appellant submits that he committed no breach. His position is that the agreement of 28th January 2016 was overtaken and extinguished by the deed of variation of 25th January 2019, and that a party cannot be held to have breached an agreement whose terms have since been varied. 9.He contends that the contract was frustrated by the conduct of Standard Chartered Bank, which, he says, diverted his repayments towards his unsecured facilities and thereby rendered performance radically different from what was contemplated; on this he relies on Charles Mwirigi Miriti v Thananga Tea Growers Sacco Ltd & Another [2014] eKLR and Davis Contractors Ltd v Fareham UDC [1956] AC 696. He further argues that misrepresentation was neither pleaded nor particularised, contrary to Kuria Kiarie & 2 Others v Sammy Magera [2018] eKLR, and that the Respondent was in any event aware of the charge from the certificate of title in her possession. 10.As regards the deed of variation, the Appellant submits that it was a voluntary and informed bargain, freely entered into, and that the trial court ought not to have relieved the Respondent of a contract she willingly executed; he invokes National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another [2001] eKLR and the contra proferentem rule. 11.On damages, he concedes only the Capital Gains Tax of Kshs. 95,000/=, which he says he was ready to refund, and contends that the remaining heads of special damages, in particular the sums paid to discharge the Bank, were not recoverable because the Respondent had voluntarily elected to pay an increased price. He maintains that the trial court ignored his pleadings and submissions and that the judgment was against the weight of the evidence, and he prays that the appeal be allowed and the judgment set aside. The Respondent’s Submissions 12.The Respondent, through M/s Henia Anzala & Associates, supports the judgment in its entirety. On jurisdiction, she submits that the claim before the trial court was purely commercial: it did not concern the ownership, use or title to land, but sought monetary compensation for losses occasioned by the Appellant’s breach. Applying the very predominant purpose test on which the Appellant relies, she argues that the relief sought was the recovery of money, not a determination of interests in land, and that the dispute therefore fell squarely within the civil jurisdiction of the Magistrate’s Court. She adds that the Appellant raised the same objection by way of a preliminary objection which was dismissed by a ruling dated 15th November 2022, from which he never appealed. 13.On breach, the Respondent points to the Appellant’s own admissions on the record that he failed to complete the transaction by the agreed date and never obtained a discharge of the charge. She submits that misrepresentation was both pleaded and particularised at paragraphs 7 and 15 of the Plaint, and that the figure of a charge appearing on a certificate of title is not, in law, equivalent to the actual outstanding loan balance, which fluctuates; the Appellant’s representation of a balance lower than was in fact owing was therefore a misrepresentation of fact upon which she relied to her detriment. 14.On frustration, she submits that the plea was never raised or particularised at trial and is impermissibly advanced for the first time on appeal, and that it was in any event wholly unsupported by evidence, the Appellant having produced no bank statements to demonstrate the alleged diversion of his repayments, contrary to Section 107 of the Evidence Act. 15.On the deed of variation, the Respondent submits that its terms were clear and unambiguous and that the Appellant, having admitted executing it voluntarily, cannot invite the court to look beyond its plain terms or to invoke the contra proferentem rule where no ambiguity exists. 16.On damages, she submits that each head of special damages was specifically pleaded and strictly proved by receipts, and that the Appellant tendered nothing to controvert them. She maintains that the sums she was compelled to pay over and above the purchase price went to discharge the Appellant’s own liabilities, including his unsecured personal debts, such that to deny her recovery would leave the Appellant unjustly enriched. She prays that the appeal be dismissed with costs and the judgment affirmed. Issues for Determination 17.Having considered the Memorandum of Appeal, the record and the rival submissions, the issues that fall for determination are:a.Whether the trial court had jurisdiction to hear and determine the suit;b.Whether the Appellant breached the agreements between the parties;c.Whether the Appellant misrepresented the outstanding loan balance to the Respondent;d.Whether the agreements were frustrated;e.Whether the trial court erred in its appreciation of the deed of variation dated 25th January 2019;f.Whether the award of special damages was justified and whether the Appellant was unjustly enriched; andg.Whether, on the whole, the judgment was against the weight of the evidence. Analysis and Determination 18.At the outset I remind myself of the duty of a first appellate court. This being a first appeal, I am enjoined to reconsider the evidence tendered before the trial court, to evaluate it afresh and to draw my own conclusions, bearing always in mind that I neither saw nor heard the witnesses and must make due allowance in that regard. The principle is firmly settled in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123. With that duty in mind, I turn to the issues. 19.It is logical to begin with jurisdiction, for jurisdiction is everything: without it a court has no power to take one more step and must down its tools, as the locus classicus Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1 instructs. 20.I accept, as the Appellant submits and as the Court of Appeal held in Jamal Salim v Yusuf Abdulahi Abdi & Another [2018] eKLR, that an objection to jurisdiction may be raised at any stage, even on a first appeal, and that the Respondent’s contention that the Appellant is estopped by his failure to appeal the ruling of 15th November 2022 cannot, by itself, foreclose the objection. A court is obliged to satisfy itself of its own jurisdiction whenever the question is raised. I therefore address the objection on its merits rather than on the procedural footing urged by the Respondent. 21.The decisive question is whether this was, in substance, a dispute “relating to land” within the meaning of Article 162(2) of the Constitution and Section 13 of the Environment and Land Court Act, or a commercial dispute for the recovery of money. The test, as the Appellant himself identifies from Co-operative Bank of Kenya Limited v Patrick Kang’ethe Njuguna & 5 Others and Suzanne Achieng Butler & 4 Others v Redhill Heights Investments Limited (supra), is the predominant purpose of the transaction and of the relief sought. 22.A perusal of the Plaint discloses that the Respondent sought no declaration as to title, no order for possession and no other proprietary relief; she had already acquired, and was registered as proprietor of, the property. What she sought, and what the trial court awarded, was monetary compensation for sums she had been compelled to expend. 23.The pith and substance of the claim was therefore commercial and restitutionary, not proprietary. The mere fact that the underlying transaction concerned land does not, without more, convert every consequential money claim into a land dispute. 24.I am satisfied that the predominant purpose was the recovery of money, that the claim fell within the pecuniary and subject-matter jurisdiction of the Chief Magistrate’s Court, and that the trial court was properly seized of the matter. The first ground fails. 25.On breach, the Appellant’s principal argument is that the successive variations extinguished any antecedent obligation, so that he cannot be said to have breached anything. The argument is attractive in form but unpersuasive in substance. A variation alters the terms of a subsisting contract; it does not, of itself, absolve a party of obligations that had accrued and were left unperformed. 26.More tellingly, the Appellant admitted on the record that he did not complete the transaction by the agreed date and that he never procured a discharge of the charge over the property. Those admissions are dispositive. A vendor of charged property who fails to discharge the charge and to deliver a clean title to his purchaser is in breach of a fundamental obligation of the sale. The trial court cannot be faulted for so finding, and the second ground fails. 27.The third issue, misrepresentation, is more finely balanced and demands careful handling. The Appellant is right that misrepresentation, like fraud, must be specifically pleaded and particularised, and that a court should be slow to find it where it has not been distinctly raised. See: Kuria Kiarie & 2 Others v Sammy Magera [2018] eKLR. 28.I have therefore examined the Plaint with care. Contrary to the Appellant’s submission, the averments at paragraphs 7 and 15 of the Plaint do plead, and give particulars of, the misrepresentation relied upon, namely the misstatement of the balance outstanding to the Bank. The pleading objection therefore does not succeed. 29.That leaves the substance. The Appellant says he disclosed the true position because, the charge of Kshs. 12,375,000/= appeared on the face of the certificate of title which the Respondent held. The submission, however, conflates two distinct things. The sum for which a property is charged is the ceiling of the security; it is not, and does not purport to be, a statement of the actual debt outstanding at any given moment, which rises and falls with drawings, repayments, interest and charges. A purchaser who reads a charge of a given figure on a title cannot thereby be taken to know the live indebtedness of the vendor. 30.On the evidence, the Appellant represented an outstanding figure lower than the sum in fact owing, and continued to assure the Respondent that he was working to settle the shortfall even as the true liability climbed. The Respondent acted upon that picture to her detriment. I am unable to hold that the trial court erred in finding a misrepresentation of fact, and the third ground fails. 31.The fourth issue is frustration, and two insuperable difficulties confront the Appellant. The first is that frustration was never pleaded or particularised before the trial court. It is trite that parties are bound by their pleadings, and that a party who seeks to rely on a frustrating event must set out the particular facts said to give rise to it so that his opponent may meet the case. 32.As the Court of Appeal observed in Kenya Commercial Finance Co. Ltd v Kipng’eno Arap Ngeny & Another, Civil Appeal No. 100 of 2001, where it was held that:“A party who wishes to rely on a frustrating event cannot as in this case simply mention it in passing as was done in paragraph 11 of the Amended Plaint that I have set above. Particular facts which they seek to rely on resulting in the frustration of the contract must be clearly set out in the pleadings to enable the other side to prepare and defend the same. This not having been done, the learned Judge was clearly wrong.” 33.The particular facts relied upon must be clearly set out in the pleadings. A defence of frustration cannot be sprung for the first time on appeal. 34.The second difficulty is evidential and substantive. Even were the plea open to him, the Appellant led no evidence to make it good. He produced no statements from Standard Chartered Bank to demonstrate that his repayments towards the secured facility were diverted to his unsecured facilities; the burden of proving that assertion lay on him under Section 107 of the Evidence Act, and bare testimony unsupported by the very documents that would prove it cannot discharge that burden. 35.More fundamentally, the doctrine of frustration is no refuge for a party whose own conduct or financial embarrassment has rendered performance difficult. A self-induced inability to meet one’s obligations is not frustration in law, which requires a supervening event, occurring without the default of either party, that renders performance radically different from that undertaken. 36.In the case of Charles Mwirigi Miriti v Thananga Tea Growers Sacco Ltd & Another [2014] eKLR, the Court of Appeal citeed Davis Contractors Ltd v Fareham UDC [1956] AC 696, where it was held at page 729:“...frustration occurs whenever the law recognizes that, without the default of either party a contractual obligation has become incapable of being performed because the circumstances in which the performance is called for would render it a thing radically different from that which was undertaken by the contract. “Non haec in foedera veni”. It was not what I promised to do”. 37.The fourth ground fails. 38.The fifth issue concerns the deed of variation of 25th January 2019. The Appellant urges the court to look behind it to the surrounding circumstances, while simultaneously contending that he should not be bound by its consequences. The two positions sit uneasily together. 39.The Appellant admitted under cross-examination that he executed the deed voluntarily, with understanding and without coercion. Where the terms of an instrument are clear and were freely agreed, a court does not rewrite the parties’ bargain, nor will it relieve a party of an improvident contract absent coercion, fraud or undue influence, see: National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another [2001] eKLR. Nor can the contra proferentem rule be pressed into service, for that rule resolves genuine ambiguity against the drafter; it is not a device for manufacturing ambiguity where none exists. 40.The deed recorded, in plain terms, the Respondent’s undertaking to settle the sums demanded by the Bank to secure the discharge and transfer. The trial court did not err in giving effect to it, and the fifth ground fails. 41.I come to the sixth and most consequential issue: the award of special damages and the finding of unjust enrichment. The governing principle is not in doubt. Special damages must be specifically pleaded and strictly proved; they are not inferred from the act complained of, and the degree of certainty of proof depends on the nature of the loss: Hahn v Singh [1985] KLR 716. 42.Proof ordinarily requires receipts rather than mere invoices. The Respondent pleaded her heads of special damage and, through the documents in her bundle, produced receipts in support, which the Appellant did not controvert by any evidence of his own. 43.But proof of expenditure is not the end of the inquiry, for the Appellant raises a respectable argument that deserves to be met head-on. He says that whatever the Respondent paid, she paid pursuant to her own freely-assumed obligation under the deed of variation to settle the Bank, and that money paid in discharge of one’s own valid obligation cannot found a claim in restitution. 44.There is authority for that proposition. As the Court of Appeal recognised in Kenya Commercial Bank Ltd & Another v Samuel Kamau Macharia & 2 Others [2008] eKLR, restitution will not lie where the benefit was conferred pursuant to a valid legal obligation owed by the claimant to the recipient; a person paid that which is lawfully owed to him is not unjustly enriched. If, therefore, every shilling the Respondent paid represented the agreed price of the property, the claim would face real difficulty. 45.The answer lies in distinguishing what the Respondent was obliged to pay from what she was not. To the extent that her payments discharged the agreed purchase price, they are not recoverable, for they were her own obligation. But the evidence establishes that the sums she was compelled to pay to secure the discharge of the charge exceeded the purchase price and extended to the Appellant’s unsecured personal facilities which formed no part of the bargain and which the Appellant alone was bound to pay. 46.In meeting those liabilities to rescue the very property she had bought and occupied, the Respondent conferred upon the Appellant a benefit, the extinction of his personal debts, which he had no right to receive at her expense. That is unjust enrichment in the classic sense described in Madhupaper International Ltd & Another v Kenya Commercial Bank Ltd & 2 Others [2003] eKLR: a benefit received at the expense of another in circumstances in which it would be against conscience to retain it. 47.The trial court’s award, in so far as it restored to the Respondent the sums she paid in discharge of the Appellant’s own obligations together with the necessary and proven incidental costs occasioned by his default, was therefore soundly founded. The Capital Gains Tax of Kshs. 95,000/= the Appellant concedes. I find no proper basis to disturb the award, and the sixth ground fails. 48.The remaining grounds that the trial court failed to consider the Appellant’s pleadings and submissions, and that the judgment was against the weight of the evidence do not survive the foregoing analysis. A reading of the impugned judgment shows that the learned trial magistrate engaged with the Appellant’s case, including his evidence on cross-examination and the arguments of his counsel, and reached conclusions that were open to her on the record. 49.A first appellate court does not interfere merely because it might have expressed itself differently; it interferes only where the trial court is shown to have erred in principle, misapprehended the evidence, or arrived at a conclusion no reasonable tribunal could reach. No such error has been demonstrated. 50.Having re-evaluated the record for myself, I arrive independently at the same conclusions as the trial court. Disposition and Orders 51.The upshot is that none of the grounds of appeal has been made good. For completeness, and for the avoidance of doubt, I make the following orders:a.The appeal is hereby dismissed in its entirety.b.The Judgment and decree of the trial court delivered on 26th February 2025 in Milimani CMCC No. E10103 of 2021 are upheld and affirmed.c.The costs of this appeal are awarded to the Respondent. It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 18TH DAY OF JUNE 2026.BENARD MURUNGA WAFULAJUDGEIn the presence of:Kimosop instructed by Mola Kimosop for the AppellantMunguti instructed by Henia Anzala for the RespondentKevin Babu - Court Assistant