https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7810

**THE REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NAIROBI** **COMMERCIAL AND TAX DIVISION** **CIVIL SUIT NO. 293 OF 2016** GATHERU GATHEMIA T/A GATHERU GATHEMIA & CO. ADVOCATES……………..….PLAINTIFF VERSUS WANJA G. WAMBUGU T/A W.G.WAMBUGU & CO ADVOCATES………………..….1ST DEFENDANT SALOME GICHURA…………………………...………………2ND DEFENDANT SEVINGTON INVESTMENT LIMITED………………………3RD DEFENDANT **JUDGMENT** 1. The plaintiff instituted this suit vide a plaint dated 21st July 2016 seeking judgment against the defendants jointly and severally for Kshs.30,000,000/=, special damages of Kshs.1,500,000/=, general damages, exemplary damages, costs and interest. 2. The plaintiff’s case is that on 17th December 2015, he entered into a Sale Agreement with the 3rd defendant for the purchase of an office suite No. 11 on 6th floor at Fortis Office Suites situated on L.R. No.209/11440 along Hospital Road, next to Traffic Headquarters in Nairobi *“hereinafter referred to as office space”*. The plaintiff averred that he made two payments of Kshs.15,000,000/= each, and blamed the defendants for misrepresentation and fraud in the Sale Agreement, as particularized in the plaint, which led him to terminate the said Agreement. He claimed that he suffered damages for which the 1st and 2nd defendants should be held liable. The plaintiff stated that due to the termination of the Sale Agreement, he demanded for a refund of the money already paid, and that the 1st defendant agreed to vary the terms of the Sale Agreement, which were never approved. The plaintiff alleged that the 1st defendant made unauthorized payments to third parties from his account, but he had not authorized such release of funds. The plaintiff contended that the Sale Agreement was voided, annulled, terminated and cancelled. He seeks damages and a refund of the purchase price as sought in the plaint. 3. In opposition to the sale herein, the defendants filed a joint statement of defence dated 10th January 2018, wherein the 3rd defendant denied that it misrepresented itself as the purported owner of the office space, as it was the true owner of the same. The defendants contended that the plaintiff at all times knew that the 3rd defendant was selling the office space as a beneficial owner, and it denied misrepresentation and fraud. 4. The defendants averred that the plaintiff was through the letter dated 22nd February 2016 required to take possession of the office space but failed to do so, and as such, the plaintiff is in default for failure to pay the balance of the purchase price. The defendants maintained that they were ready and willing to give possession of the office space and two parking bays as soon as the plaintiff avails himself to take them, or as the Court may direct. The defendants stated that the plaintiff is not entitled to the reliefs claimed. They urged this Court to dismiss the suit. 5. The case proceeded to full hearing, wherein the plaintiff called three witnesses; namely, Gatheru Gathemia (PW1), Simon Shivaji (PW2) and John Mwangi Mwirigi (PW3). The defendants called Wanja G. Wambugu (DW1), who testified as their witness. The case was partly heard as at the time it was allocated to me for further hearing. **THE PLAINTIFF’S CASE** 1. Mr. Gatheru Gathemia Advocate, testified as PW1. He adopted his witness statement dated 21st July 2016 as his evidence-in-chief. He produced the documents in the plaintiff’s bundle of documents. He further relied on the supplementary witness statement dated 15th June 2021 and supplementary bundle of documents dated 15th June 2021. 2. PW1 testified that he was seeking orders for a refund of the amount deposited with the 1st defendant in the transaction of Kshs.30,000,000/=. He also prayed for both general and special damages. He testified that he was duped into the scam which he seeks compensation for. 3. In cross-examination, PW1 testified that the transaction involved a purchase of an office suite. He stated that he discussed with the 1st defendant, who is his village mate and former college mate, that he was looking for office space to purchase and she led him to the suit property which belonged to her elder sister known as Salome, the 2nd defendant herein, had acquired with her (2nd defendant). He testified that he dealt with the 1st defendant and only met the 2nd defendant towards the end of the deal. He stated that he did not conduct a search of the property as he trusted the 1st defendant who had shown him the Title for LR 209/11440, registered to Chartel (sic) Holdings Limited, which is just proof that the property exists. 4. In further cross-examination, PW1 stated that the Agreement was signed by the 3rd defendant and himself but the 2nd defendant did not sign it. He testified that he was holding the 1st defendant liable for not acting in his interest in the transaction. He blamed the 1st defendant for misrepresenting that the 3rd defendant had office space that was being sold by her sister, the 2nd defendant, who is a Director of the 3rd defendant. He stated that he cancelled the Sale Agreement due to misrepresentations, effluxion of time and withdrawal of a strategic partner. 5. PW1 indicated that about Kshs.17 Million had been refunded into his account as listed in receipts elaborated during trial. It was his evidence that in the course of trial, the parties entered into a Mediation Agreement and partial payments were made. He stated that he would have to get a statement from KCB Bank to reconcile the payments made. 6. In re-examination, he stated that he went to college with the 1st defendant and they were from the same village, and as such, he trusted her before he realized that he was being taken advantage of. He testified that the 1st defendant informed him that her sister had office space, owned by the 3rd defendant, only for him to establish that it was actually owned by a Developer. He stated that completion documents were not availed within 90 days of the Agreement, and that his claim is on misrepresentation and fraud. He indicated that he took the case to the Advocates Disciplinary Committee and mediation commenced, which saw the 1st defendant pay Kshs.10,000,000/= but they did not agree on the interest. He stated that the grounds for termination of the contract were misrepresentation, deceit and fraud which he urged the Court to so find and award damages, with interest and costs. 7. Mr. Simon Shivaji, was an Advocate who was admitted to the bar in the year 2001 but he was no longer in practice. He testified as PW2. He adopted his witness statement dated 22nd May 2021 as his evidence. He testified that he was involved in reviewing the Sale Agreement dated 17th December 2015, and he was instructed by the plaintiff to issue letters in pursuit of a refund of the consideration already paid in the sum of Kshs.30,000,000/=, but the 1st and 2nd defendants did not directly accept to settle the debt. 8. On being cross-examined by Mr. Amoko, PW2 confirmed that PW1 is not claiming what he has already been paid, which is about Kshs.17,000,000. He acknowledged payments made pursuant to a Mediation Agreement. He further stated that he did not undertake a search of the property. It was his evidence that when he met the 1st and 2nd defendants, they informed him that the property was registered in the name of the 3rd defendant. He testified that he realized that the cost of parking bays was exorbitant, but there is no evidence of the same in any document or that a strategic partner had pulled out of the transaction. He admitted that the said person was never disclosed in the Sale Agreement. 9. On being cross-examined by Ms Jan Mohammed (SC), he reiterated that he is an Advocate who was admitted on 2001 but he no longer practices as his name was struck out of the roll (of Advocates). He stated that the Agreement was drawn by the 1st defendant and he only attested to it. He stated that he mainly advised the plaintiff on debt recovery. 10. In re-examination he stated that at the time the plaintiff instructed him, he was an Advocate entitled to raise a fee note. He reviewed the Agreement and he was instructed to pursue recovery of the debt. 11. Mr. John Mwangi Mwirigi, PW3, testified that he is an Accountant member number 9254. He adopted his witness statement dated 18th June 2021, his second statement dated 7th December 2021 and further supplementary statement dated 1st September 2024. He indicated that his evidence is on calculation of interest due from 27th July 2016 until 23rd September 2024. He produced his Report dated 23rd September 2024. He later produced the second Report after obtaining additional documents. He stated that in making the calculations, he used an interest rate of 12% on a reducing balance and not straight line method. 12. In cross-examination by Ms Jan Mohamed (SC), he stated that his firm is known as Elite Bridge Ltd, which was registered in 2016 and that he qualified to be an Accountant in the year 2014. He distinguished the straight line and reducing balance methods in interest calculations and further stated that different methods yield different results. 13. On being cross-examined by Mr Amoko, PW3 testified that he calculated interest based on the amount due and owing. He stated that he first used the straight line method, which he discussed with the plaintiff (PW1), as the interest was high as it gave a figure of Kshs 300,000/= per month. He stated that PW1 informed him that the issue of interest was provided for in the Agreement. 14. In re-examination, he stated that as at 6th April 2018, the amount due was Kshs.36,300,000/=, wherein Kshs.30,000,000/= was the principal amount and Kshs.6,300,000/= was the interest. He stated that when the amount of Kshs.10,000,000/= was paid it offset the interest and the balance of Kshs.3,400,000/= went towards the principal sum. He stated that he did his calculations on simple interest. **THE DEFENDANTS’ CASE** 1. The defendants called Mrs. Wanja G. Wambugu Advocate, who testified as DW1. She adopted her witness statement dated 10th July 2019 as her evidence-in-chief. She produced her bundle of documents as exhibits 1 to 5. She testified that she knows the plaintiff as they went to the same university. Her evidence was that the plaintiff went looking for office space in 5th Ngong Avenue where she has an office, and the Caretaker informed him that the 3rd defendant had offices to sell at Fortis Suites. She stated that the plaintiff contacted the 3rd defendant, whom she was acting for, and then the plaintiff called her. It was her evidence that the plaintiff and the 3rd defendant engaged in negotiations and her role was to prepare the Sale Agreement dated 17th December 2015 for the office premises and two parking spaces for the consideration of Kshs.33,800,000.00. 2. DW1 testified that the plaintiff paid Kshs. 30,000,000/= in two instalments and that the completion date was 90 days. She stated that the plaintiff frustrated the transaction in mid-February 2016 when he stated that he would not complete the transaction because a strategic partner pulled out of the contract. She indicated that the plaintiff further cited frustration of the contract and misrepresentation. She indicated that the plaintiff reported the matter to the (Advocates) Disciplinary Committee and the DCI that the transaction was fraudulent. She stated that by the time the plaintiff testified, Kshs.10,000,000/= had been paid and subsequent payment was made in September 2018. She maintained that she was wrongly enjoined to the suit as she is not a Director of Sevington Investment Ltd, the 3rd defendant herein. 3. On being cross-examined by Mr Kanjama (SC), she stated that she was acting for the 3rd defendant in the transaction and that she is a sister to the 2nd defendant. She indicated that the plaintiff called her while at the Caretaker’s office in Ngong Avenue, and he then went to her office and informed her that he was interested in a property which her sister was selling. That she did not tell him that the 2nd defendant was a Director of the 3rd defendant. She stated that she was the conveyancing lawyer for the 3rd defendant, and that she received instructions from the 2nd defendant to prepare an Agreement, which she did. 4. She indicated that the 3rd defendant did not have Title documents of the property as it was being processed by the Head Lessor, Chartwell Holdings Limited, and in the Agreement, the 3rd defendant was described as the beneficial owner in Clause 3, but Clause 1 had stated that the vendor was the registered owner. She stated that the Agreement had a completion period of 90 days, that the vendor had power and authority to perform the same and that the property was not subject to any overriding interest or equities. 5. She asserted that as an Advocate she had a duty to collect the amount and hold it for 30 days before releasing it to the vendor pending registration of the lease. She stated that she released the amount of Kshs.30,000,000/= to the 3rd defendant in the year 2016. It was her evidence that the Agreement was rescinded, and in April 2018 the plaintiff was paid Kshs.17,600,000/=. She stated that the amount paid so far was Kshs.27,160,000. She indicated that she does not know the difference between simple and compound interest. She stated that there was various correspondence exchanged before and after the Agreement was rescinded. 6. In re-examination, she confirmed that the plaintiff and the 3rd defendant signed the Agreement and that the plaintiff was acting for himself. She stated that at one point, the plaintiff asked her to certify his documents. She stated that she was not informed that the 3rd defendant had breached Clause 10.17. She stated that the 3rd defendant was willing to complete the lease. She further stated that the plaintiff signed the lease with the Head Lessor, and upon execution of the documents, they were sent to Lumumba & Lumumba Advocates with the heading of sale of the office space. She also added that there is an assignment of lease which was prepared by the said firm of Lumumba & Lumumba Advocates which was signed on page 81 by the plaintiff. She indicated that the balance of Kshs. 3,800,000/= was never paid by the plaintiff. **SUBMISSIONS.** 1. The parties filed submissions in support of their cases. The plaintiff’s submissions and supplementary submissions are dated 1st July 2025 and 18th November 2025, respectively as filed by the law firm of Muma Kanjama Advocates. The 1st defendant’s submissions are dated 29th August 2025, filed by the firm of Archer & Wilcock Advocates, whereas the 2nd and 3rd defendants’ submissions are dated 25th September 2025 as filed by the law firm of ANL Law Advocates. **ANALYSIS AND DETERMINATION.** 1. I have considered the plaint as well as the 1st, 2nd & 3rd defendants’ statement of defence filed herein, the witness statements, the evidence adduced by the parties’ witnesses and the written submissions filed by the Counsel for the parties. The issues for determination are as follows: 2. **Whether this Court has the jurisdiction to hear and determine this case;** 3. **Whether the defendants are necessary parties to this suit;** 4. **Whether the plaintiff herein has proved the allegations of misrepresentation and fraud; and** 5. **Which reliefs should the Court grant?** **Whether this Court has the jurisdiction to hear and determine this case.** 1. Ms Jan Mohamed (SC), learned Counsel for the 1st defendant challenged the jurisdiction of this Court to determine this suit since it deals with the sale and purchase of an office suite, and contended that the Court with the requisite jurisdiction is the Environment and Land Court. She cited the case of the **Owners of the Motor Vessel “Lillian S” vs Caltex Oil (Kenya) Ltd** [1989] eKLR, and submitted that the issue of jurisdiction can be raised at any time before judgment. In making reference to the case of **Kenya Ports Authority vs Modern Holdings [E.A] Limited** [2017] eKLR and **the Active Directions on Proceedings in the Environment and Land Courts**, and **on Proceedings relating to the Environment and the Use and Occupation of, and Title to Land; and** **Proceedings in other Courts,** gazetted vide **Gazette Notice No. 5178**, Senior Counsel posited that the instant suit was improperly filed before this Court, as the Environment and Land Court was operationalized in 2012 by the Environment and Land Court Act, No. 9 of2011. She also relied on the case of **Rwimbo v Gachagua** (Civil Appeal 7 of 2018) [2025] KEHC 5130 (KLR) (30 April 2025) (Judgment), which dealt with the issue of breach of contract on sale of land in determining whether the case should be handled by the High Court or the Environment and Land Court, and urged that what should be looked into, is the predominant purpose of the transaction. 2. Mr. Amoko, learned Counsel for the 2nd and 3rd defendants contended that the suit should have been filed at the Environment Land Court as the cause of action arose from an Agreement conferring an interest in land. He urged the Court to strike out these proceedings for want of jurisdiction. 3. The plaintiff’s Counsel filed supplementary submissions mainly on the issue of the jurisdiction of this Court. Mr. Kanjama (SC), relied on the case of **Otieno Migore v South Nyanza Sugar Co Ltd** [2018] eKLR, and submitted that under Order 2 Rule 4 of the Civil Procedure Rules, a party is required to plead a specific matter, and contended that the statement of defence herein, did not raise any objection to the jurisdiction of the Court. He maintained that this case is a contractual dispute, which vests jurisdiction in this Court. He relied on the cases of **Cooperative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 others** [2017] eKLR; **David Ramogi & 4 others vs Cabinet Secretary Ministry of Energy & Petroleum & 7 others** [2017] eKLR; **Lydia Nyambura Mbugua v Diamond Trust Bank Kenya Ltd & another** [2018] eKLR and **Joel Kyatha ta Mbaluka Associates Advocates v Daniel Ochieng Ogola t/a Ogolla Okello & Co Advocates** [2019] KECA 504 KLR, for the proposition that where the predominant issue is on breach of contract and not Title, Use or Occupation of land, the High Court has the requisite jurisdiction, and not the Environment and Land Court. 4. Jurisdiction is a threshold issue, and when put into question, the Court must first address it as it has the effect of disposing of the suit, in the event that a Court finds that it has no jurisdiction, to hear and determine a case. This was stated in the case of **the Owners of the Motor Vessel “Lillian S” -vs- Caltex Oil (Kenya) Ltd (supra),** where **Nyarangi J.A.,** held as follows: - **“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the Court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a Court has no power to make one more step. Where a Court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A Court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.'** 1. The defendants contended that the dispute herein relates to land, which is a preserve of the Environment and Land Court which is established under Article 162(2) of the Constitution, which states as follows- ***162. (2) Parliament shall establish Courts with the status of the High Court to hear and determine disputes relating to—*** 1. ***…*** 2. ***the environment and the use and occupation of,*** ***and title to, land.*** 1. In this case, inasmuch as the cause of action relates to the sale and purchase of office space, the predominant issue is not on the use of, occupation of, or title to land, but on the contractual process of the sale and purchase of the office space. A reading of the reliefs sought shows that the plaintiff seeks a refund of the money he paid as well as damages for breach of contract, which arose out of alleged misrepresentation and fraud. This Court is therefore of the finding that it is the one with the requisite jurisdiction to hear and determine this case, and not the Environment and Land Court. **Whether the defendants are necessary parties to this suit.** 1. Ms Jan Mohamed (SC) submitted that the 1st defendant is not a suitable party to this suit as her only participation in the said transaction was as an Advocate and not as a party. Senior Counsel stated that the 1st defendant only received Kshs.30,000,000/= and held it pursuant to the Law Society Conditions of Sale (1989 Edition). She also stated that the plaintiff has not proved misrepresentation and/or fraud against the 1st defendant who acted as an Advocate throughout the transaction, by drafting the necessary Agreements and by keeping both her client and the plaintiff informed of each step and stage of the transaction. 2. Mr. Amoko, on his part submitted that the 2nd defendant should not have been joined as a party to this suit as she was a Director of the 3rd defendant and no basis has been provided to lift the corporate veil. He submitted that it was improper to implead her personally, and relied on the cases of **Victor Mabachi & another v Nurtun Bates Limited** [2013] KECA 204 (KLR) and **Anthony Francis Wareheim ta Wareheim & 2 others vs Kenya Post Office Savings Bank** Civil Appl No Nai 5 & 48 of 2002, to support the said assertion. 3. Mr. Kanjama (SC) for the plaintiff, submitted that the 1st defendant worked as an agent of the 2nd and 3rd defendants. He cited the case of **Lucy Nungari Ngigi & 4 others v National Bank of Kenya Limited & another** [2015] eKLR and **Branwhite v Worcester Works Finance Ltd** [1969] 1 AC 552 at 587, which explained the concept of an agency relationship. He submitted that all the defendants benefited from the transaction and they should be held liable. 4. Senior Counsel further submitted that since the cause of action is on misrepresentation, and fraud, the Director of the 3rd defendant company cannot use the defence that she is an agent of a disclosed principal. He asserted that the agent should be held personally liable and cited the case of **National Social Security Fund Board of Trustee v Ankhan Holding Limited & 2 others** [2006] KEHC 2655 (KLR), and urged this Court to lift the corporate veil. He also cited the cases of **Stanley Thyaka Muindi v Matewa Agencies Ltd & 2 others** [2019] KEELC 2664 (KLR), **George Williams Omondi & another v Cooperative Bank of Kenya Ltd & others** [2016] eKLR; J**ones & Another v Lipman & another** [1962] 1 W.L.R 833X, to assert his position. He reiterated that the 1st and 2nd defendants are proper and necessary parties to this suit in line with Order 1 Rule 3 of the Civil Procedure Rules, 2010. 5. A reading of the said provisions illustrates the parties who may be joined as defendants in a suit, where the cause of action arises from the same act or transaction. It states as follows- ***“Who may be joined as defendants [Order 1, rule 3]*** ***All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against such persons any common question of law or fact would arise.”*** 1. In this case, this Court finds that it was necessary for the plaintiff to file suit against all the defendants herein, to answer to the common issues raised regarding the sale and purchase of the office space in issue. The 1st defendant not only acted as an Advocate in the matter but also as the link to the transaction. She is the one who, in her own admission during her examination-in-chief, linked the plaintiff to the 2nd defendant, who is her sister, and a Director of the 3rd defendant, on the sale of the office space. The said nexus created an agency relationship between the 1st defendant and the 2nd defendant. Although the 1st defendant in her evidence refuted the said claim by testifying that it was the Caretaker of the office premises she occupies that directed the plaintiff to the 3rd defendant, I believe the evidence of the plaintiff that from the history they had, of being from the same village and of him having been her former college mate, she is the one who informed him of the office space that was purportedly being sold by her sister, the 2nd defendant herein. I find the claim by the 1st defendant far-fetched, that the Caretaker would, of his own accord know of an office space that was being sold by the 2nd defendant, who is the 1st defendant’s sister. 2. In the case of **Nyolmo v Rabadiya t/a Shruti Enterprises Hardware** [2023] KEHC 19268 (KLR), the Court stated as follows on the issue of principal-agency relationship- ***“whether an agent-principal relationship existed between the Appellant and the said Maxwell Rop,***[***Bowstead and Reynolds on Agency***](https://search.worldcat.org/title/Bowstead-and-Reynolds-on-agency/oclc/50809278)***Seventeen Edition, Sweets Maxwell Page 1-001, defines such a relationship as follows:“... a relationship which exists between two persons, one whom expressly or impliedly consents that the other should act on his behalf so as to affect his relations with third parties, and the other of whom similarly consents so to act or so acts.”*** ***31.Existence of a consent was considered in the case of***[***Branwhite v Worcester Works Finance Ltd.***](https://vlex.co.uk/vid/branwhite-v-worcester-works-793514909)***[1969] 1 A.C. 552 at 587 where Lord Wilberforce stated thus: -“While an agency must ultimately derive from consent, the consent need not necessarily be to the relationship of principal and agent itself (indeed the existence of it may be denied) but it may be to a state of fact upon which the law imposes the consequences which result from the agency.”*** (Emphasis added). 1. It is this Court’s finding that the 1st defendant acted as an agent of the 2nd defendant in the transaction in question and not just as her Advocate, as alleged. Her inclusion as a defendant in this suit is proper, as she is a necessary party to these proceedings. 2. The 2nd defendant’s Counsel equated the plaintiff’s suing of the 2nd defendant to the lifting of the 3rd defendant company’s corporate veil. There is however no ambiguity in law that the 3rd defendant company is a separate legal person from its members as was held in the case of **Victor Mabachi & anor & Nurtun Bates Limited** **[2013] eKLR**, where the Court while dealing with the issue of a distinct legal entity of corporate bodies held that: **“[A company] as a body corporate, is persona jurisdica, with a separate independent identity in law, distinct from its shareholders, directors and agents unless there are factors warranting a lifting of the veil.”** 1. In shedding light on the exceptions to the above principle, Hon. Judge Mabeya in the case of **Multichoice Kenya Ltd v Mainkam Ltd & anor** [2013] eKLR, held as follows: - ***“I agree that directors are generally not personally liable on contracts purporting to bind their company. If the directors have authority to make a contract, then only the company is liable on it. To my mind, there is no doubt that ever since famous case of Salomon v Salomon [1897] A.C. 22 Courts have applied the principle of corporate personality strictly. But exceptions to the principle have also been made where it is too flagrantly opposed to justice or convenience. Other instances include when a fraudulent and improper design by scheming directors or shareholders is imputed. In such exceptional cases, the law either goes behind the corporate personality to the individual members or regards the subsidiary and its holding company as one entity.”*** (Emphasis added). 1. From the averments contained in the plaint, this case turns on the allegation of fraudulent misrepresentation by the defendants towards the plaintiff, which brings to the fore the question of whether the 2nd defendant as a Director of the 3rd defendant should be held personally liable on the allegations of the fraud, which in turn confirms the fact that the 2nd defendant is a relevant party to this suit. **Whether the plaintiff has proved the allegations of misrepresentation and fraud as against the defendants.** 1. Mr Kanjama (SC), for the plaintiff submitted that contrary to the representations made to the plaintiff and the terms of the executed Sale Agreement dated 17th December 2015, the defendants wilfully and fraudulently made some representations to the plaintiff, that the 3rd defendant was the registered owner of the property that would be transferred, and that the property would be registered in the plaintiff’s name as per the terms of the Agreement for Sale. Senior Counsel further submitted that the property had been depicted as being free from any encumbrances, but the plaintiff would later establish that the property was still registered in the name of a 3rd party, the Developer. Counsel contended that there were some latent and patent breach of conditions and warranties which soured the transaction and when the plaintiff tried to have the issues addressed, the defendants were not receptive of it, hence the initiation of the instant suit. He also stated that the 3rd defendant had outstanding financial obligations to the Developer of the property. 2. Mr. Kanjama SC relied on the case of **Kelvin Mutua and 197 others v Athi Water Services Board** (2021) eKLR, **Fidelity Shield Insurance Company Ltd v Karuri** (Civil Appeal No. E032 of 2022) [2025] KEHC 4359 (KLR) and **Charles Kamau Njoroge v Mary Wakamba Ndungu** [2020] KEHC 5589 (KLR), to support his submissions on the issue of misrepresentation. 3. He argued that this is a case of fraudulent misrepresentation as the 1st defendant upon receiving the amount of Kshs.30,000,000/= and when holding it pending completion, she made some payments to third parties. He cited the case of **Gichinga Kibutha v Caroline Nduku [2018] KEELC 3981 (KLR), Mustek East Africa Limited v Mtawa Technologies Ltd & 3 others** [Civil Case E476 of 2022 [2024] KEHC 11119 (KLR), which defined fraud and the elements required to prove it. Mr Kanjama (SC), further relied on the expression of *‘nemo dat quod non habet’*, which means that one cannot give what he does not own. To support the said assertion, he relied on the case of **Daniel Kiprugut Maiywa v Rebecca Chepkurgat Maina** [2019] eKLR. 4. He cited the case of **Benson Mutura Kangara & another v Board of Governors St. Mary’s School** [2013] KEHC 6712 (KLR), which stated that a defendant should not keep the money paid to it through misrepresentation as that would be injustice against the plaintiff. 5. He asserted that this Court should not permit unjust enrichment and cited the cases of **Laban v M’ Ananua** (ELC Appeal No. E037 of2023 [2024] KE ELC 7320 (KLR), **Kinluck Holdings Limited v Mint Holdings Limited & Macharia Njeru** [2019] KECA 643 (KLR) and **Tyre Enterprises Ltd v Kenya Alliance Insurance Company [Ltd**], to support his position 6. Ms Jan Mohamed (SC), submitted that the case has undisputed facts, such as the Sale Agreement was prepared and signed by the plaintiff and the 3rd defendant on or about 17th December 2015, and that the said Agreement expressly stated that the 3rd defendant was selling the said property as its legal and beneficial owner. She further submitted that plaintiff prepared a Variation Agreement which incorporated amendments to Clauses 4.3, 6.1, 6.3, 12 and 15 of the Sale Agreement. Senior Counsel argued that the plaintiff terminated the sale on account of a strategic partner withdrawing from the transaction and that the 3rd defendant embarked on refunding the purchase price, and an aggregate sum of Kshs.29,160,000.00 has since been paid to the plaintiff. 7. Senior Counsel argued that fraud must be distinctly proved. To support this argument, she cited the case of **Kuria Kiarie & 2 others v Sammy Magera** [2018] KECA 467 (KLR) a Court of Appeal decision, **Kinyanjui Kamau vs George Kamau** [2015] eKLR and W**ambui v Mwangi & 3 others** (Civil Appeal 465 of 2019) [2021] KECA 144 (KLR) (19 November 2021) (Judgment). 8. Mr Amoko submitted that the plaintiff informed the defendants that a strategic partner had pulled out and he could not proceed with the purchase on his own, hence sought cancellation of the Agreement and a refund of the money paid. Counsel argued that it was the plaintiff who breached the Agreement and he could not benefit from his own wrong. He stated that since the proceedings were filed, the plaintiff had been refunded his money and contended that the relief for a refund had been overtaken by events. He stated that since the 3rd defendant did not violate the plaintiff’s rights, the plaintiff is not entitled to general and exemplary damages. 9. In order to answer the question of whether there was misrepresentation and fraud, this Court will first establish the reason for the termination of the Sale Agreement dated 17th December 2015 between the plaintiff and the 3rd defendant herein, for a consideration of Kshs.33,800,000/=. This Court further notes that the Lease Agreement between Chartwell Holdings Ltd, Fortis Suites Management Limited and the plaintiff herein, had only been executed by the plaintiff. 10. A look at the correspondence between the parties, reveals a letter dated 9th February 2016 written by the 1st defendant informing the plaintiff that the Developer would be handing over possession. This Court further notes the response by the plaintiff dated 15th February 2016, wherein he stated that the vendor had misrepresented itself in the negotiations that it was the registered owner. In the said letter, the plaintiff stated that he was prepared to refund the vendor the stamp duty but not legal fees, as he had not engaged the services of the 1st defendant. 11. This Court has taken note of the Variation Agreement between the plaintiff and the 3rd defendant, which acknowledged that the balance of Kshs.3,800,000/= would be paid within 14 days, that the completion date would be 150 days from the date of the Agreement and that registration of the lease would be undertaken by the firm of Lumumba & Lumumba Advocates. 12. Consequently, the plaintiff wrote a letter dated 16th February 2016, stating that the exchange of correspondence had caused a strategic partner who was financing the purchase to withdraw from the transaction and he could not proceed with the purchase on his own. The plaintiff further indicated that he would proceed with formal cancellation of the transaction and seek refund of his deposit. 13. In a letter dated 18th February 2016, the plaintiff through the firm of Shivaji and Company Advocates, sought a refund of Kshs.30,000,000/=. The plaintiff indicated that he would not be claiming any interest on the said sum. 14. The 1st defendant in a letter dated 22nd February 2016, informed the plaintiff that the transfer document had already been forwarded to the Head Lessors for registration in his favour. The 1st defendant asked the plaintiff when he would take possession pursuant to Clause 7.2 of the Agreement. A similar letter was written to the firm of Shivaji & Co Advocates on the same date, stating that the 3rd defendant was in the process of completing the transaction so that the plaintiff could take possession. The 1st defendant further stated in the letter that the issue of a refund did not arise. 15. In response, the firm of Shivaji & Co Advocates wrote a letter dated 23rd February 2016 stating that its instructions were only limited to cancellation of the transaction due to breach of the Agreement. The firm also wrote a letter dated 18th March 2016 stating that the termination of the Agreement was due to non-disclosure of material facts as the vendor in the Agreement was indicated to be the registered owner of the property, which was not true. 16. From the plaintiff’s evidence in Court and the correspondence exchanged between the parties herein, the plaintiff gave the reasons for termination of the Sale Agreement as being the strategic partner pulling out of the transaction and the fact that the vendor indicated in the said Agreement to be the registered owner, was not the actual owner. 17. In the Sale Agreement dated 17th December 2015, Clause 1 contains clear terms that the vendor, the 3rd defendant herein, was the registered owner of the office space. Clause 3 of the said Agreement lists the vendor as having leasehold interest plus one share in the management company and that the vendor sells as the legal and beneficial owner of the property. This in itself shows a contradiction of terms in the said the Agreement. The question then that must be answered is whether the said contradiction amounts to misrepresentation and fraud. 18. On the issue of misrepresentation, the Court in the case of **Fidelity Shield Insurance Company Limited v Karuri** [2025] KEHC 4359 (KLR) stated as follows- ***“The starting point is what misrepresentation means. Courts have, over time, dealt with the term. In Kelvin Mutua and 197 Others vs. Athi Water Services Board (2021) eKLR the Court defined the word misrepresentation as follows: -Mary Charman in her book Contract Law defines misrepresentation as follows; A misrepresentation is an untrue statement of fact, made by one party to a contract to another, which is not a term of the contract, but has an inducing effect on it. [****emphasis added]* ***9. Further, at paragraph 36, the Court proceeded to posit that: -Misrepresentation of facts can be made by carelessly issuing facts without checking the actual details. Also, misrepresentation can be a deliberate lie, intended to deceive and stated in the full knowledge that it is untrue. An innocent party in both types of misrepresentation is entitled to rescind the contract if he chooses to (Mary Charman, 2007, pg. 179).*** ***10. Additionally, the Court in Sachin Shaha v Jagat Mahendra Kumar Shah & another [2020] eKLR held in paragraph 30 as follows: -*** ***…As to the relationship between non-disclosure and misrepresentation, Chitty on Contracts, General Principles, 31st Edition states: Non-disclosure. The general rule is that mere non-disclosure does not constitute misrepresentation, for there is, in general, no duty on the parties to contract to disclose material facts to each other, however dishonest such non-disclosure may be in particular circumstances. But there are exceptions to the general rule that there is no duty to disclose. First, there are many statutory exceptions. Second, there are exceptions at common law where the contract is within the class of contracts uberrimae fidei, where there is a fiduciary relationship between the parties, and where failure to disclose some facts distorts a positive representation. It is also possible for a person to be guilty of misrepresentation by conduct.*** ***The Meriam Webster Dictionary defines misrepresentation as follows: -*** ***… a false or misleading representation, often made intentionally to deceive or cause harm, which can be verbal, by conduct, or even through nondisclosure or concealment.*** ***12. Deriving from the foregoing, the term misrepresentation generally relates to an intentional false act or conduct, whether orally or by deed, aimed at misleading a fact.”*** 1. Basically, misrepresentation is giving false information to a party which is meant to mislead them into making a certain decision in the matter under consideration between the parties. In this case, there was misrepresentation on the part of the defendants, particularly the 3rd defendant, which misrepresented itself as the actual owner of the office space, when the property was actually owned by a third party, the Developer. The fact that there was contradiction in the Sale Agreement shows that there was intention to misrepresent the plaintiff as to who was the actual owner of the office space in issue was. In my considered view, that was material misrepresentation. 2. The plaintiff has also alleged that the defendants acted fraudulently in their actions. The **Blacks Laws Dictionary Ninth Edition** defines fraud as:- **“Fraud consists of some deceitful practice or wilful device, resorted to with intent to deprive another of his right, or in some manner to cause him an injury.”** 1. Additionally, the **Blacks Law Dictionary Ninth Edition** at Page 731 also defines fraud as:- ***“*A knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment”** 1. It is trite that the burden of proof in instances where fraud is alleged in civil cases, is higher than that of a balance of probabilities. In the case of **Kinyanjui Kamau -vs- George Kamau** [2015] eKLR, it was stated thus: ***“…It is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo -vs- Ndolo (2008) 1 KLR (G&F) 742 wherein the Court stated that: “…..we start by saying that it was the Respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him. Since the Respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities; but the burden of proof on the Respondent was certainly not one beyond a reasonable doubt as in Criminal Cases…”*** 1. Having considered the evidence adduced by the plaintiff, the defendants and the documentary evidence relied upon, it is my finding that the actions of the 3rd defendant amount to fraud and misrepresentation because it was clear that it did not have proprietary interest in the office space, and as such, it could not sell or transfer the property given that it only had **beneficial ownership of a leasehold.** 2. The defendants’ witness, DW1, in her evidence confirmed that the 3rd defendant was not the registered owner of the office space, as the same was still registered in the name of Chartwell Holdings Limited. 3. As earlier noted, there were contradictions in the Sale Agreement dated 17th December 2015, where in Clause 1, it shows that the 3rd defendant was the registered owner of the office space, whereas Clause 3 of the said Agreement shows that the vendor was the legal and beneficial owner. It is these contradictions that led to the initiation of the correspondence between the parties herein, and due to the said exchange of the said correspondence, eventually, the plaintiff’s strategic partner pulled out of financing of the transaction. The plaintiff in his evidence testified that he rescinded the Sale Agreement as a result of misrepresentation of material facts, effluxion of time and the withdrawal of a strategic partner. This Court is therefore satisfied that the plaintiff has proved fraud and misrepresentation on the part of the defendants. 4. It was contended that the 2nd defendant, as a Director of the 3rd defendant should not have been sued because the 3rd defendant is a separate legal entity. Even if that is legally correct, the 2nd defendant executed the Sale Agreement when knowing very well that the 3rd defendant company could not pass good title to the plaintiff. Companies work through either Directors or Officers. In this case, the 2nd defendant was the brains behind the said Agreement on behalf of the 3rd defendant. The misrepresentation and fraud were therefore executed in her hands on behalf of the 3rd defendant, and she is similarly liable for the wrongs committed to the plaintiff. **Which reliefs should the Court grant.** 1. The plaintiff seeks the following reliefs in his plaint: 2. ***Kshs 30,000,000/=*** 3. ***Special damages of Kshs 1,500,000/=*** 4. ***General damages*** 5. ***Exemplary damages*** 6. ***Interest on (a) and (b) above*** 7. ***Costs of the suit.*** **Claim for Kshs.30,000,000/=** 1. With regard to the claim of Kshs.30,000,000/= by the plaintiff, in his evidence-in-chief, he admitted that some of the monies had been refunded to him. This Court notes that even at the time when the proceedings in this case were ongoing, some refunds were being made to the plaintiff. In his submissions, he stated that a refund of Kshs.28,160,000.00 had been made on diverse dates between 6th April 2018 and 2nd May 2025. 2. The 1st defendant stated that a further sum of Kshs.1,000,000/= was paid in July 2025 and the sum of Kshs.840,000.00 was due to be paid in August 2025, which shows that it is not clear how much is still pending payment. 3. With respect to this claim, given that the plaintiff admitted to a partial refund of Kshs.28,160,000/= having been made, he is only entitled to the balance of the unpaid amount. **Special damages** 1. On the claim for special damages, Mr Kanjama (SC) submitted that the plaintiff spent Kshs.500,000/= as legal fees for the lawyer handling the matter before the Law Society of Kenya and a further Kshs.500,000/= as legal fees to the lawyer hired to terminate the Agreement. He stated that the plaintiff produced the receipt issued by the firm of Shivaji & Co Advocates dated 14th April 2016, a receipt issued by the firm of B.M. Kanyiri & Co Advocates dated 22nd March 2016 and receipt issued by the firm of Enonda Makoloo Makori & Co Advocates dated 12th May 2016 as seen at pages 116, 117 and 131 of the plaintiff’s bundle of documents. Senior Counsel stated that in cross-examination of DW1, she confirmed that the complaints existed, and that parties went through mediation, which shows that it is not disputed that the plaintiff engaged Advocates, which proves that legal fees were paid, thereby proving special damages. He urged this Court to award special damages as specifically pleaded and proved. He relied on the cases of **Hahn v Singh** Civil Appeal No. 42 of 1983 [1985] KLR 716 and **James Thiongo Gichiri v Nduati Njuguna Ngugi** [2012] KEHC 4378, to support the claim. 2. Mr. Amoko stated that the claim of Kshs.1,500,000/= is for legal costs, which do not constitute special damages, as they were costs for pursuing a claim and the plaintiff should not be awarded the same. 3. It is trite that special damages must be pleaded and strictly proved as was stated by the Court of Appeal in the case of **Odera t/a AJ Odera & Associates v Machira t/a Machira & Co Advocates** [2013] KECA 208 (KLR) as follows- ***“The Kshs.296, 019,767.80 forming the appellants claim in HCCC no.518 of 1996 fell into the category of claims known to law as special damages. It is now trite that these must be specifically pleaded and strictly proved. See the case of Hann versus Singh (1985) KLR 716 wherein the Court of appeal held inter alia that:-“Special damages must not only be specifically claimed but also strictly proved. The degree of certainty and the particularity of proof depend on the circumstances and the nature of the acts themselves”*** 1. In so far as the plaintiff’s claim for the sum of Kshs.1,500,000/= as legal fees is concerned, this Court has gone through the documents produced by the plaintiff and found various receipts in support of the said claim. There is a receipt dated 14th April 2016 for Kshs.500,000/= from Shivaji & Company Advocates, whose purpose was retainer, deposit of legal fees and disbursements on proposed purchase of office space. This Court has also seen a receipt dated 22nd March 2016 for the sum of Kshs.500,000/= issued by the law firm of B.M. Kanyiri Advocates, being a deposit for watching brief for the plaintiff herein, who was the complainant. There is another receipt dated 12th May 2016 from the firm of Enonda Makoloo Makori & Co. Advocates whose purpose was retainer for a case at the Disciplinary Tribunal and civil case (Fortis Case). 2. Based on the said payments for legal fees expended by the plaintiff when problems arose in the transaction for the purchase of the office space in issue, it is my finding that he has successfully proved the claim for special damages by way of receipts issued to him after he made the said payments. The claim for Kshs.1,500,000/= is justified, and it is hereby awarded. **General damages** 1. Mr. Kanjama (SC) urged this Court to award the plaintiff general damages since the dispute between the parties herein arose out of misrepresentation and fraud through the defendants’ conduct. He cited the cases of **South Tetu Hotels & Bar Limited v Thuo & another** (Environment & Land case E067 of 2022 [2023] KE ELC No. 21359 KLR and **Samuel Mwangi Nguuni v District Land Registrar & another** [2015] KEHC 8018 KLR, to support his proposition that the plaintiff is entitled to general damages arising out of breach of contract and negligent misrepresentation. 2. Ms Jan Mohamed (SC) contended that the plaintiff is not entitled to the reliefs sought. In addressing the issue of general damages, she cited the case of **Micro-City Computers Limited & another v National Social Security Fund Board of Trustees & another** (Civil Appeal 49 & 59 of 2020 (Consolidated)) [2024] KECA 444 (KLR) (12 April 2024) (Judgment) (with dissent). 3. Mr. Amoko asserted that general damages are not available for breach of contract. He relied on the case of **Provincial Insurance Co. EA Ltd v Mordekai Mwanga Nandwa** (supra). 4. In this case the Court has already found that the defendants breached the Sale Agreement through their fraudulent conduct and misrepresentation. In his claim for general damages, the plaintiff’s Counsel cited the case of **Samuel Mwangi Nguuni v District Land Registrar & another** (supra), where the Court awarded the plaintiff general damages of Kshs.600,000/= for a claim for negligent misrepresentation. 5. In the Court of Appeal decision in the case of **Municipal Council of Eldoret v Titus Gatitu Njau** [2020] KECA 782 (KLR), it was stated as follows- ***“The general rule regarding the measure of damages is that the injured******party should be awarded a sum of money so as to put him in position which is the same or nearly as close to the position he would have been had he not sustained the injury or loss. In******Total (Kenya) Limited formerly******Caltex Oil (Kenya) Limited v Janevams Limited [2015] eKLR****,* ***this Court stated as follows****:* ***“But whether the claim is in contract or tort the only damages to which the appellant is entitled is a pecuniary loss: it is to put the appellant into as good position as if there had been no such breach or interference. Normally this would entitle the appellant to recover damages for the expenses caused by and gains foregone because of the breach or interference…******“This case has been accepted by this Court as an authority for the proposition that general damages cannot be awarded for breach of contract and that proposition makes sense because damages arising from a breach of a contract are usually quantifiable and are not at large. Where damages can be quantified they cease to be general…”* (Emphasis added).** 1. This Court is bound by the above holding by the Court of Appeal. For that reason, it is my finding that the award for general damages is not payable. **Exemplary damages** 1. On the issue of exemplary damages, Mr. Kanjama (SC) stated that the defendants’ acts of fraud, deceit and misrepresentation were meant to enrich themselves to the detriment of the plaintiff and damages should issue to punish and deter them from such actions. He relied on the case of **Godfrey Julius Ndumba Mbogori & another v Nairobi City County** [2018] eKLR, where the Court explained that the purpose of exemplary damages is to punish and deter. 2. Ms Jan Mohamed (SC) submitted that exemplary damages should not be awarded and cited the case of **Municipal Council of Eldoret v Titus Gatitu Njau** [2020] KECA 782 (KLR), which stated that exemplary damages are only awarded in limited instances. She stated that since the plaintiff has not proved the claim of misrepresentation and fraud, the 1st defendant did not deal with the plaintiff in an oppressive, arbitrary or unconstitutional manner, so as to warrant these damages to be awarded. 3. On his part, Mr. Amoko submitted that the plaintiff had not made out a case for exemplary damages. 4. The Court of Appeal in the case of **Godfrey Julius Ndumba Mbogori & another v Nairobi City County** [2018] eKLR, defined exemplary damages and the circumstances in which it is awarded as follows- “***The appellants claimed for exemplary and punitive*** ***damages. Exemplary damages are essentially different from ordinary damages. The object of damages in the usual sense of the term is to compensate. The object of exemplary damages is to punish and deter. We are guided by the case of Rookes V Barnard [1964] AC 1129 where Lord Devlin set out the categories of case in which exemplary damages may be awarded which are: i) in cases of oppressive, arbitrary or unconstitutional action by the servants of the government, ii) cases in which the defendant’s conduct has been calculated to make a profit for himself which may well exceed the compensation payable to the plaintiff and iii) where exemplary damages are expressly authorized by statute.*** ***Lord Devlin also gave expression to 3 considerations which must be borne in mind in any case in which an award of exemplary damages is being claimed. The first category is that the plaintiff himself must be the victim of the punishable behaviour; the second category is that the power to award exemplary damages must be used with restraint for it constitutes a weapon and can be used either in defence of liberty or against liberty and thirdly, the means of the defendant, irrelevant in the assessment of compensation, are material in the assessment of exemplary damages.”*** 1. The plaintiff argued that the actions of the defendants were arbitrary, oppressive and unconstitutional, as a justification for the claim of exemplary damages. This Court is however of the view that the plaintiff has not proved how the defendants’ actions were unconstitutional or oppressive to warrant the award of exemplary damages. The claim under the head of exemplary damages therefore fails. **Interest** 1. Mr Kanjama (SC) took the position that the prayer for interest on the sums irregularly withheld ought to be paid. He relied on the cases of **Millicent Perpetua Atieno v Louis Onyango Otieno** [2013] eKLR and **Vimalvelji Shah v Chemaafrica Ltd** [2015] KEHC 7449 (KLR), to support his assertion. 2. Ms Jan Mohamed (SC) submitted that a refund of Kshs.30,000,000/= has already been made, since Kshs.29,160,000.00 has already been refunded, which shows that the claim for interest should fail. 3. On the issue of compound interest claimed by the plaintiff, Mr. Amoko argued that the same should not be awarded. He stated that the Kenyan Courts and Courts across the common law world have put restrictions on awards of compound interest to only situations where it is agreed or authorized by Statute. He stated that compound interest is available on unpaid debt as special damages for loss of use of money. He cited the Court of Appeal case in **Mumias Sugar Company Ltd vs N.M Shah** (unreported) Mombasa Civil Appeal No. 21 of 2011, in support of his submissions. He maintained that the plaintiff did not plead compound interest as special damages and it should not be awarded. 4. Mr. Amoko argued that the plaintiff relied on the evidence of PW3 who is an Accountant of no good standing, as he did not have a practising certificate as required under Section 22(1) of the Accountants Act, which is a breach of a mandatory statutory requirement. 5. This Court notes that there is evidence and it is undisputed, that a big portion of the sum of Kshs.30,000,000/= was refunded by the defendants on diverse dates. It was however not refunded within reasonable time after the plaintiff rescinded the Sale Agreement. The refund for the said amount has been made in instalments for a duration of about seven (7) years. I am minded of the fact that in the letter dated 18th February 2016, the plaintiff through his Advocate had indicated that he would not claim interest, but he later changed his mind and vide the letter dated 18th March 2016, his Advocate indicated that the sum of Kshs.30,000,000/= would attract interest at commercial rates until payment in full. 6. The plaintiff and the 1st defendant in their evidence during trial stated that the refund was made in instalments on diverse dates between 6th April 2018 and 2nd May 2025. The amounts paid varied in value. It is therefore not lost to this Court that the plaintiff was kept out of his money for a number of years. The said fact evidently shows that the plaintiff is entitled to interest for the sum of Kshs.30,000,000/= . 7. The parties herein proposed different interest rates. The plaintiff called an Accountant, PW3, but he did not have a practising certificate in compliance with Section 22(1) of the Accountants Act. The question that the Court must then answer is whether lack of a practising certificate renders the evidence he tendered useless. Section 22(1) of the said Act, provides that- “***where the holder of the practicing certificate intends to practice as a firm or sole proprietor or in partnership, he shall apply to the registration committee for an annual license in the prescribed form, furnishing the registration committee with such details of the firm as it may require.”*** 1. The term used in the above provisions is ***“shall apply for an annual license”,*** which is a mandatory command, that an Accountant must possess a practising certificate so as to be recognized as a licensed Accountant. In this case, since PW3 was not licensed, this Court cannot rely on the Report produced by him on the interest due to the plaintiff. The said Report is therefore hereby disregarded. 2. This Court holds that interest can only be paid at Court rates, and that it is payable by the defendants. The amount of Kshs.30,000,000/= shall therefore attract interest at Court rates with effect from 18th March 2016, being the date of the letter communicating rescission of the Sale Agreement. 3. In addition, I award interest at Court rates for the special damages of Kshs.1,500,000/=, from the date of filing suit. **Costs of the suit**. 1. Mr. Kanjama (SC) urged this Court to grant the plaintiff costs of the suit. He relied on Section 27 of the Civil Procedure Act and Supreme Court case of **Sonko v Clerk, County Assembly of Nairobi City & 12 others** (Petition No. 14 (E021 of 2021) [2022] KESC 17 (KLR), which states that costs fall under the inherent powers of the Court but where the suit fails, the instituting party should bear the costs and where it succeeds the losing party should bear the costs. He urged this Court to award the plaintiff costs of the suit for the trouble taken to file it due to the defendants’ breach of contract, misrepresentation and fraud. 2. The issue of costs is provided for inSection **27**of the Civil Procedure Act, which provides as follows: - **27 (1)** **Subject to such conditions and limitations as may be** **prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the Court or judge, and the Court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and give all the necessary directions for the purposes aforesaid; and the fact that the Court has no jurisdiction to try the suit shall be no bar to the exercise of those powers;** **provided that the costs of any action, cause or other matter or issue shall follow the event unless the Court or judge shall for good reason otherwise direct.”** 1. In this case given that the plaintiff is successful in his claim against the defendants, he is entitled to costs of the suit, which I hereby award. 2. In the end, this Court enters Judgment jointly and severally against the defendants in favour of the plaintiff as follows- 3. **Special damages at Kshs.1,500,000/=;** 4. **Payment of the balance that is due and owing of the purchase price of Kshs.30,000,000/=;** 5. **Interest on the principal sum of Kshs.30,000,000/= to be calculated at Court rates with effect from 18th March 2016, being the date of rescission of the Sale Agreement;** 6. **The Special damages of Kshs.1,500,000/= shall attract interest at court rates from the date of filing suit; and** 7. **Costs of this suit are awarded to the plaintiff.** It is so ordered. **DATED, SIGNED and DELIVERED at KIAMBU on this 29TH day of MAY, 2026. Judgment delivered through Microsoft Teams Online Platform.** **NJOKI MWANGI** **JUDGE** **In the presence of:-** Mr. Khatete h/b for Mr. Kanjama (SC) for the plaintiff Ms Wangui h/b for Ms Jan Mohamed (SC) for the 1st defendant & h/b for Mr. Amoko for the 2nd & 3rd defendants Ms Julia – Court Assistant.