https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3927

Gas & another v Njui (Land Case E563 of 2025) [2026] KEELC 3927 (KLR) (29 June 2026) (Ruling) Neutral citation: [2026] KEELC 3927 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Land Case E563 of 2025 CG Mbogo, J June 29, 2026 Between Abdulhakim Abdullahi Gas 1st Plaintiff Husna Abdirahim Bule 2nd Plaintiff and Alex Macheru Njui Defendant Ruling 1.Before me is the notice of motion dated 7th November, 2025 filed by the plaintiffs/ applicants and it is expressed to be brought under Articles 24, 25, 47, 50, 159, 165 of the Constitution of Kenya and Order 40 of the Civil Procedure Rules seeking the following orders:-1.Spent.2.Pending the hearing and determination of this application and suit, the honourable court be pleased to issue an order of temporary injunction restraining the defendant/respondent, his agents, servants, employees, assigns or otherwise howsoever from leasing, offering for sale, disposing of, selling, charging or otherwise in any way dealing with all that property known as title no. Nairobi/Block 17/50 measuring approximately 0.0207 hectares situate at the village estate more specifically known as Maisonette/House No. 2 Oloitoktok Road, Kileleshwa, Nairobi County (hereinafter referred to as the suit property).3.Such further or other consequential orders as the court may deem just.4.Costs of this application be awarded to the Appellant/Applicant (sic). 2.The application is premised on the grounds on its face. It is further supported by the affidavit of the 1st plaintiff/applicant sworn on even date. The 1st plaintiff/applicant deposed that together with his wife, the 2nd plaintiff/applicant, they sought to acquire a matrimonial home and they were introduced to the suit property Maisonette/House Number “2” on Oloitoktok Road, Kileleshwa under Title No. Nairobi/Block 17/50. 3.He deposed that upon conducting due diligence and confirming that the defendant/respondent was the registered owner, they entered into a contract via letter of offer dated 21st August, 2025 with the agreed purchase price being Kshs.30,000,000/- and a requirement to pay a 10% deposit of Kshs.3,000,000 upon execution. The 1st plaintiff/applicant deposed that they paid the 10% deposit of Kshs.3,000,000/- on 27th August, 2025 but on 3rd September 2025, the defendant/ respondent refunded the same without any basis. He deposed that the said action was unjustifiable and in breach of contract. 4.The 1st plaintiff/applicant deposed that they have been ready and willing to complete the transaction and had already secured the necessary funds. He is apprehensive that the defendant/respondent is currently marketing the property to third parties, which would cause them great prejudice and financial loss. The 1st plaintiff/applicant averred that it was necessary to restrain the defendant/respondent from dealing with the property so as to determine the suit on its merits. 5.The application was opposed vide the replying affidavit of the defendant/respondent sworn on 3rd December, 2025. He averred that on 21st August, 2025 the parties engaged in the mooted sale and purchase of the suit property via a letter of offer where the plaintiffs/applicants paid the 10% deposit. He deposed that a week and a half after the letter of offer was executed, he communicated his decision to rescind the offer to sell the property and on 4th September, 2025 he refunded the full deposit asserting that the plaintiffs/applicants were restored to their pre-offer position. 6.The defendant/ respondent averred that following the failed transaction, he transferred the suit property to Elma Rosy Atieno Ooro, who became the registered owner on 15th October, 2025. He contended that the application is defective and should be dismissed since the offer letter was explicitly marked “subject to contract”, and the same was not a binding claim but rather a document governing pre-contractual engagements until a formal agreement for sale was executed. 7.The defendant/respondent deposed that the letter of offer did not meet the requirements of a land sale contract under the Law of Contract Act and that no formal contract materialized and therefore he was at liberty to dispose of the property as he saw fit. By refunding the deposit within a very short timeframe, the plaintiffs/applicants suffered no demonstrable loss or damage. Further, that the claim for Kshs.450,000 in legal fees was never substantiated. The defendant/ respondent contended that since the property was legally owned by Elma Rosy Atieno Ooro, the plaintiffs/applicants prayer for the property was vanquished. 8.The application was canvassed through written submissions. The plaintiffs/applicants filed his submissions dated 25th February, 2026 while the defendant/respondent filed his submissions dated 15th April, 2026. I have considered the application, replying affidavit and the submissions thereof filed by the parties. The issue for determination is whether the plaintiff/applicant has established a prima facie case to warrant the orders sought. 9.Section 3 (3) of the Law of Contract Act Cap 23 describes what constitutes a contract for disposition of an interest in land that can found an action. It provides as follows:-“(3)No suit shall be brought upon a contract for the disposition of an interest in land unless—(a)the contract upon which the suit is founded—(i)is in writing;(ii)is signed by all the parties thereto; and(b)the signature of each party signing has been attested by a witness who is present when the contract was signed by such party:Provided that this subsection shall not apply to a contract made in the course of a public auction by an auctioneer within the meaning of the Auctioneers Act (Cap526), nor shall anything in it affect the creation of a resulting, implied or constructive trust.” 10.The above proviso is further fortified by Section 44 of the Land Registration Act, which provides as follows: -“44.(1)Except as otherwise provided in this Act, every instrument effecting any disposition under this Act shall be executed by each of the parties consenting to it, in accordance with the provisions of this section.(2)The execution of any instrument referred to in subsection (1), by a person shall consist of appending a person’s signature on it or affixing the thumbprint or other mark as evidence of personal acceptance of that instrument.” 11.The plaintiffs/applicants are seeking temporary injunction on the ground of specific performance as against the defendant/respondent for breach of contract when he refunded the deposit without any reason. The defendant/respondent on the other hand argued that the letter of offer only governed the precontractual ties with a sale agreement preferring the rights and obligations to be ratified later. 12.There is no gainsaying that there existed a letter of offer signed by both parties on 23rd August, 2025. It is not in dispute that the letter of offer in this matter was on the face of it stated to be “Subject to Contract”. It is important to note that clause 11 of the letter of offer provided that:-“…This offer letter constitutes itself as the complete and exclusive statement and agreement of the parties which shall presumptively bind the parties herein with respect to the pertinent matter. The letter of offer is issued on the basis that the agreement for sale shall be executed within 14 days of the date of the letter of offer.” 13.In my view, the import of clause 11 was that upon the parties executing the letter of offer, the terms of the letter of offer would be binding upon them on the basis that a sale agreement was to be executed within 14 days. From the material placed before this court, it is not contested that both parties signed the letter of offer and a deposit in the sum of Kshs.3,000,000/- duly paid. It is also not in dispute that the sale agreement was never executed within the 14 days upon signing of the offer letter. 14.It therefore follows that the offer letter did not become binding in accordance with the stipulation under clause 11 of the offer letter. In addition, it is also a fact that the defendant/respondent promptly refunded the plaintiffs/applicants the deposit on 3rd September, 2025. In the case of East African Fine Spinners Ltd (in receivership) & 3 others V Bedi Investment Limited [1994] eKLR, the Court of Appeal dealt with the question of the legal tenor of a letter of offer which was formally expressed to be subject to an anticipated formal contract that never crystalized. 15.Gicheru, JA expressed himself by adopting the words of Lord Westbury LA in Chinnock V The Marchionesa of Ely 4 DE GJ & 5 638 at 646 as follows:-“As soon as the fact is established of the final mutual assent of the parties to certain terms, and those terms are evidenced by the party to be charged or his agent, lawfully authorized, there exist all the materials, which this court requires, to make a legally binding contract. But if to a proposal or offer an assent be given subject to a provision as to a contract, then the stipulation as to the contract is a term of the assent, and there is no agreement in the absence of that stipulation.” 16.The learned JA further adopted the words of Sir Raymond Evershed MR in Bennet, Walden & Co. V Wood [1950] 2 ALL ER 134 at page 137, as follows:-“Where you have a proposal or agreement made in writing expressed to be subject to a formal contract being prepared, it means what it says, it is subject to and is dependent upon a formal contract being prepared. When it is not expressly stated to be subject to a formal contract, it becomes a question of construction whether the parties intended that the terms agreed on should be subject to a new agreement the terms of which are not expressed in details.” 17.On his part, Kwach JA who was also on the bench, rendered himself in the following words:“The sale was by its express terms subject to contract and until that contract had been executed there was no contract between the parties which could be enforced by an order of specific performance or mandatory injunction.” 18.Kwach JA further quoted Banker LJ’s words in Keppel v Wheeler & another [1927] 1 KB 577, as follows:-“I pause here to state plainly what is now well established that where a person accepts an offer subject to contract, it means that the matter remains in negotiation until a formal contract is settled and the formal contracts are exchanged.” 19.While I place reliance on the above authority, let me say that for a party to found an action on a contract relating to a disposition of an interest in land such contract must satisfy all the requirement set out under Section 3(3) of the Law of Contract Act. In my view, the letter of offer signed by both parties did not satisfy these requirements. 20.In addition, having already established that there was no binding contract between the parties, it follows that there was no contract breached as alleged. Consequently, the plaintiffs/applicants have not established a prima facie case to warrant the orders of temporary injunction as sought. 21.The upshot of the foregoing is that the notice of motion dated 7th November, 2025 is without merit and it is hereby dismissed with costs to the defendant/respondent.It is so ordered. DATED, SIGNED & DELIVERED VIRTUALLY THIS 29TH DAY OF JUNE, 2026.HON. MBOGO C.G.JUDGE29/06/2026.In the presence of:Ms. Benson Agunga - Court assistantNo appearance for the Plaintiffs/ApplicantsNo appearance for the Defendant/Respondent