https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/653

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE’S COURT AT BUNGOMA** **ENVIRONMENT & LAND CASE NO. E110 OF 2025** **EVANSON MOSIGISI MOKAYA………………..……………….………………….PLAINTIFF** **VERSUS** **MAURICE BARASA JUMA………………………………...……………...1ST DEFENDANT** **JEREMIAH WATAH BARASA………………………………………….2ND DEFENDANT** **JUDGMENT** 1. The Plaintiff instituted this suit through a Plaint dated 03rd December 2025 seeking judgment against the Defendants jointly and severally for: 2. *A declaration that the Defendants are in fundamental breach of the Sale Agreement dated 06th July 2021* 3. *An order for the immediate refund of the total sum of Kshs. 311,500/= paid by the Plaintiff to the Defendants, together with interest thereon at court rates from the date of each payment until payment in full* 4. *Special damages in the sum of Kshs. 2,000,000/= being double the purchase price as stipulated in clause 11 (3) of the Sale Agreement* 5. *General damages for breach of contract* 6. *Loss of user* 7. *Costs of this suit and interest thereon at court rates* 8. The Plaintiff pleaded that on 06th July 2021, he entered into a Sale of Land agreement with the Defendants for the purchase of ½ an acre of land to be excised from land parcel number East Bukusu/North Sang’alo/834 (“the suit property”) at a consideration of Kshs. 1,000,000/=. He added that he paid a deposit of Kshs. 250,000/= at the time of execution of the agreement and later made a further payment of Kshs.61,500/= to the Defendants in partial payment of the consideration. 9. The Plaintiff further averred that clause 5(2) of the Sale of Land agreement (“the agreement”) required the Defendants to give him vacant possession of the suit property upon execution of the agreement but the Defendants failed to do so. 10. Further, the Plaintiff pleaded that clause 11 (3) of the agreement provided that any party in breach of the agreement would pay the aggrieved party double the purchase price. 11. It is against this backdrop that the Plaintiff pleaded that the Defendants breached the agreement as enumerated in paragraph 11 of the Plaint, hence this suit. 12. The Defendants entered appearance and filed a Statement of Defence dated 05th June 2026 denying breaching the agreement. They blamed the Plaintiff for breaching the agreement by, amongst other things enumerated in paragraph 15 of the Statement of Defence, failing to pay the consideration in full as agreed and demanding vacant possession of the suit property when he has not completed the payment. 13. In addition to the above, the Defendants pleaded that clause 11(3) of the agreement ought to be declared severable for being untenable. 14. It is against this backdrop that the Defendants urged this court to dismiss this suit with costs. 15. This matter proceeded to full hearing when the parties herein adduced the evidence summarized below in a bid to prove the averments in their respective pleadings on a balance of probabilities. **EVIDENCE** **Plaintiff’s Case** 1. **PW1 Evans Mosigisi Mokaya** adopted his witness statement dated 03rd December 2025 as his evidence in chief. That testimony was largely a rendition of the Plaintiff’s averments in his Plaint summarized above. Therefore, it will not serve any useful purpose to reproduce the same here. He produced the agreement dated 06th July 2021, Mpesa statement for the period in question, a demand letter dated 10th January 2021 and a rescission letter dated 01st February 2024 as exhibits. 2. He stated in cross-examination that he failed to settle the balance of the consideration because the Defendants did not give him vacant possession of the suit property per the agreement. He conceded that he had paid the Defendants Kshs. 301,500/= as at the time of filing this case. **Defendants’ Case** 1. **DW1 Jeremiah Wata Barasa** adopted his witness statement dated 05th June 2026 as his evidence in chief. He also produced all the documents accompanying his pleadings as exhibits. 2. He admitted entering into the agreement for the sale of the suit property and receiving Kshs. 311,000/= from the Plaintiff in part payment of the consideration of Kshs. 1,000,000/=. He added that they declined to give the Plaintiff vacant possession of the suit property since he did not settle the balance of the consideration of Kshs. 750,000/= by 20th December 2021 as agreed. He produced the agreement and the suit property’s title deed showing the 1st Defendant as the suit property’s owner as exhibits. 3. In cross-examination, he reiterated that the Plaintiff was only to start using the suit property after payment of the consideration in full. 4. **DW2 Maurice Barasa Juma** adopted his witness statement dated 05th June 2026, which was a carbon copy of DW1’s witness statement as his evidence in chief. 5. He stated in cross-examination that he was ready to give the Plaintiff vacant possession of the suit property upon the Plaintiff paying the consideration in full. **ANALYSIS AND DETERMINATION** 1. This court has given due regard to the pleadings, evidence, written submissions, and the authorities on record. 2. Before delving into an analysis of this case, this court notes that the agreement on record is explicit that the 2nd Defendant was the one who sold ½ an acre of land to be excised from his share of the suit property owned by his father (“the 1st Defendant”) to the Plaintiff. The 1st Defendant must have been joined to this suit out of abundance of caution given that he is the suit property’s registered owner. It thus follows that any remedies available to the Plaintiff arising from this suit ought to be borne by the 2nd Defendant. 3. It is common ground that the parties herein executed the agreement herein. There is no dispute that the Plaintiff has so far paid Kshs. 311,000/= to the Defendants in partial payment of the consideration of Kshs. 1,000,000/= and that the Plaintiff has never been given vacant possession of the suit property. 4. The foregoing inclines this court to find and hold that the issues which merit determination before this court are: whether the agreement was breached, and what are the remedies available to the aggrieved party. **Whether the agreement was breached** 1. The parties herein blamed each other for breaching the agreement. It is settled law in this jurisdiction that the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of section 107(1) of the Evidence Act (Chapter 80 of the Laws of Kenya), which provides: *107. (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.* 1. Section 109 of the Evidence Act, on the other hand, stipulates that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence. 2. This court now proceeds to determine whether the Defendant breached the Security Service Agreement dated 14th February 2021. 3. The Black’s Law Dictionary, 9th Edition, Page 213, defines a breach of Contract as; *“a violation of a contractual obligation by failing to perform one’s own promise, by repudiating it, or by interfering with another party’s performance. A breach may be one by non-performance or by repudiation or by both. Every breach gives rise to a claim for damages and may give rise to other remedies. Even if the injured party sustains no pecuniary loss, or is unable to show such loss, with sufficient certainty, he has at least a claim for nominal damages.”* 1. In **Gatobu M’ibuutu Karatho v Christopher Muriithi Kubai [2014] eKLR** the court cited the High Court in Kampala case “Nakana Trading Co. Ltd – Versus - Coffee Marketing Board 1990-1994 EA 448”, which dealt with the issue of breach of contract as follows:- *“In contract, a breach occurs when one or both parties fail to fulfill the obligations imposed by the terms since the contract between the parties was reduced into writing, the duty of the court is to look at the documents itself and determine whether it applies to existing facts.”* 1. Guided by the authorities above, it follows that a party to an agreement is deemed to have breached an agreement if the guilty party fails to fulfil any of their obligations under the agreement. 2. The Plaintiff blamed the Defendants for breaching clause 5(2) of the agreement by failing to give him vacant possession of the suit property upon execution of the agreement. 3. The Defendants, on their part, took the position that the Plaintiff was the one who breached the agreement by failing to settle the consideration by 20th December 2021. The Defendants also admitted that they did not give the Plaintiff vacant possession of the suit property since he had not paid the full consideration. 4. A reading of clause 5(2) of the agreement leaves no doubt in this court’s mind that the Defendants were to give the Plaintiff vacant possession of the suit property on execution of the agreement. The Defendants did not do so. Instead, the Defendants insisted that they could only give the Plaintiff vacant possession of the suit property upon the Plaintiff paying the consideration in full. 5. Clearly, the Defendants misapprehended clause 5(2) of the agreement. The Defendants' own testimony on record is an admission of their breach of the agreement. That breach entitled the Plaintiff to rescind the agreement through the rescission letter dated 01st February 2024. 6. There is no reason why the Plaintiff would have proceeded to settle the balance of the consideration by 20th December 2021 as demanded by the Defendants in the face of the Defendants’ flagrant breach of clause 5(2) of the agreement. 7. The foregoing shows that the Defendants failed to fulfil their obligations under the agreement; hence this court’s finding that the Defendants breached the agreement. **The remedies available to the Plaintiff** 1. Flowing from the finding in paragraph 32, and the Defendants’ admission that they received Kshs. 311,500/= from the Plaintiff in partial settlement of the consideration of Kshs. 1,000,000/=, it inevitably follows that the Plaintiff is entitled to a declaration that the Defendants are in fundamental breach of the agreement, and that he ought to be refunded Kshs. 311,500/=. ***Special Damages*** 1. The Plaintiff also pleaded for special damages of Kshs. 2,000,000/= as stipulated in clause 11 (3) of the agreement. The Defendants opposed this claim for being untenable. The Defendant pleaded that this clause was severable. 2. Clause 11 (3) of the agreement sets the liquidated damages for breach of the agreement at twice the consideration. This court having made a finding that the Defendants breached the agreement, on the face of it, one can easily conclude that there should not be any debate on whether the Plaintiff is entitled to the liquidated damages of Kshs. 2,000,000/=. 3. This court is well aware of the general rule that courts should not rewrite contracts voluntarily executed by the parties. The agreement herein was voluntarily executed by the parties herein. This court is also aware that for every general rule, there must be an exception or exceptions. That must have informed the Defendants' averment in their Statement of Defence that clause 11 (3) of the agreement is severable. 4. Clause 11(3) on the liquidated damages on breach of the agreement, for all intents and purposes, sought to compensate the parties herein from any breach by the offending party. It should be remembered that the Plaintiff’s quantifiable loss as a result of the breach of the agreement is Kshs. 311,500/=. The liquidated damages clause herein is based on the agreed consideration of Kshs. 1,000,000/=. 5. The foregoing begs the question of whether the Plaintiff’s quantifiable loss of Kshs. 311,500/= should attract liquidated damages of Kshs. 2,000,000/=. The circumstances of this case demand the application of the reasonableness test in interpreting clause 11(3) of the agreement. The reasonableness test is an exception to the general rule that courts cannot rewrite contracts voluntarily executed by parties. 6. Hand in hand with the reasonableness test is the doctrine of unconscionability. Where a contractual clause is found to be unconscionable, a court is also permitted to rewrite a contract executed by the parties to ameliorate the harshness of the unconscionable contractual clause. This court draws inspiration from **Margaret Njeri Muiruri v Bank of Baroda (Kenya) Limited [2014] eKLR**, where the Court of Appeal stated that:- *“It is not for the Court to rewrite a contract for the parties. As this Court held in National Bank of Kenya Ltd vs Pipeplastic Sankolit (K) Ltd. Civil Appeal No. 95 of 1999 “a Court of law cannot rewrite a contract with regard to interest as the parties are bound by the terms of their contract.” Nevertheless, courts have never been shy to interfere with or refuse to enforce contracts which are unconscionable, unfair or oppressive due to a procedural abuse during formation of the contract, or due to contract terms that are unreasonably favourable to one party and would preclude meaningful choice for the other party. An unconscionable contract is one that is extremely unfair. Substantive unconscionability is that which results from actual contract terms that are unduly harsh, commercially unreasonable, and grossly unfair given the existing circumstances of the case…”(Emphasis added)* 1. Guided by the authority above, this court takes the view that requiring the Defendants to compensate the Plaintiff liquidated damages of Kshs. 2,000,000/= per clause 11 (3) of the agreement in the face of the Plaintiff’s quantifiable loss of Kshs. 311,500/= will be unduly harsh, commercially unreasonable, and grossly unfair to the Defendants. 2. It is against this backdrop that this court finds and holds that clause 11 (3) of the agreement is unenforceable for being unconscionable. **General Damages** 1. Generally speaking, general damages are not awarded for breach of contract in this jurisdiction. However, general damages for breach of contract can be awarded where the circumstances of a case demand. The Court of Appeal in **Delilal Kerubo Otiso v Ramesh Chander Ndingra (2018) eKLR** stated that where the conduct of the appellant is oppressive, high-handed, outrageous, callous, underhand, and bordered on fraud with no intention of honoring the agreement, general damages would be tenable. 2. This was also reiterated by the Court of Appeal in **Openda v Ahn [1984] KLR 208** as follows: *“a purchaser is entitled to recover damages at large where a seller refuses to implement an agreement for any reason other than a defective title and compensation contemplated by the contract or which could reasonably have been in the contemplation of the parties as likely to be wasted if the contract is broken.”* 1. The Defendants in this case have failed to give the Plaintiff vacant possession of the suit property since 2021 despite express provisions of the agreement. They continued to receive more money from the Plaintiff even after failing to meet their end of the bargain, then demanded the Plaintiff’s full payment of the consideration before giving the Plaintiff vacant possession of the suit property per the agreement. 2. A wholesome analysis of the Defendants’ conduct in this case shows that such conduct is oppressive, callous, outrageous and borders on fraud which calls for an award of general damages as was explained in the Delilal Kerubo Otiso case (supra). 3. In the circumstances, this court awards the Plaintiff general damages of Kshs. 100,000/=. **Loss of User** 1. The Plaintiff prayed for an award of loss of user. A claim for loss of user is a claim for Special Damages. That means that such a claim must not only be pleaded, but it must be strictly proved. To this end, this court places reliance on **Ryce Motors Limited & Another –v- Elias Muroki [1996] KECA 30 (KLR),** where the Court of Appeal stated as follows on this subject: *There are umpteen authorities of this court to say that special damages must not only be specifically pleaded but must be strictly proved. Such authorities are now legion. The plaintiff simply gave evidence to the effect that his matatu was bringing him income of Shs. 4500/= per day. He did not support such claim by any acceptable evidence. There was absolutely no basis on which the learned judge could have awarded the sum of Kshs. 2,830,500/= for special damages and we set aside the award in its entirety.* 1. In **Caltex Oil (Kenya) Ltd v Rono Ltd (Civil Appeal 97 of 2008) [2016] KECA 457 (KLR)** the Court of Appeal reiterated that a prayer for damages must be specifically pleaded and particularized because the claimant has suffered as a result of the wrong that is complained of. 2. A reading of the authorities above shows that a party claiming damages for loss of use must not only plead and particularize such a claim but also strictly prove the same. Such a claim must flow from the pleadings. 3. The Plaintiff pleaded in paragraph 12 of his Plaint that the Defendants’ breach of the agreement prevented him from constructing rental houses on the suit property. His witness statement on record, which he adopted as his evidence in chief, stated as much. He added in cross-examination that he intended to construct four rental units on the suit property. 4. It is clear from the Plaintiff’s testimony on record and his pleadings that he did not particularize his claim for loss of user. He generalized the claim without giving specifics. 5. The Plaintiff submitted in his submissions that he wanted to construct five units on the suit property which were to fetch him monthly income of Kshs. 75,000/=. He computed the alleged lost income at Kshs. 3,600,000/= from 2021 to date. 6. The Plaintiff could not purport to lead evidence in support of his claim for loss of user through submissions. This is in line with the holding in **Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & Another [2014] eKLR** where the Court of Appeal stated thus: *“Submissions cannot take the place of evidence. The 1st Respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed there are many cases decided without hearing submissions but based only on evidence presented.”* 1. In any event, in the absence of expert evidence to the effect that the suit property the Plaintiff intended to purchase from the Defendants could allow for construction of five rental units capable of fetching Kshs. 75,000/= in monthly rent, the Plaintiff’s claim for loss of user cannot be sustained. 2. The reasons above incline this court to make a finding that the Plaintiff failed to particularize his claim for loss of user and failed to lead cogent evidence in support of the same. 3. In the absence of credible evidence by the Plaintiff to support his claim for damages for loss of user, the Plaintiff must be reminded of the words of Lord Goddard C.J. in**Bonham Carter vs. Hyde Park Hotel Limited [1948] 64 TLR 177:** *“Plaintiffs must understand that if they bring actions for damages, it is for them to prove damages, it is not enough to write down the particulars and, so to speak, throw them at the head of the court, saying, 'this is what I have lost, I ask you to give me these damages.' They have to prove it",* 1. The upshot of the above is that this court declines to make an award for damages for loss of user for want of proof. **DETERMINATION** 1. Given the reasons above, this court makes the following orders: 2. *A declaration is hereby issued that the 2nd Defendant is in fundamental breach of the Sale Agreement dated 06th July 2021* 3. *The 2nd Defendant is ordered to refund the Plaintiff Kshs. 311,500/= forthwith* 4. *The Plaintiff is awarded general damages of Kshs. 100,000/= to be borne by the 2nd Defendant* 5. The award in (b) above will earn interest at court rate from the date of filing this suit till payment in full, while the general damages will earn interest at court rate from the date of this judgment till payment in full **Read, signed, and delivered in open court at Bungoma this 04th day of August 2026** **T.O. OMONO** **SENIOR RESIDENT MAGISTRATE** **In the presence of:** Ms. Adongo for the Defendants C/A: Mr. Rioba