Isoe & another v Obiero (Environment and Land Appeal E003 of 2025) [2026] KEELC 3003 (KLR) (20 May 2026) (Judgment)

Isoe & another v Obiero (Environment and Land Appeal E003 of 2025) [2026] KEELC 3003 (KLR) (20 May 2026) (Judgment) Neutral citation: [2026] KEELC 3003 (KLR) Republic of Kenya In the Environment and Land Court at Nyamira Environment and Land Appeal E003 of 2025 DO Ohungo, J May 20, 2026 Between Charles Osoro Isoe 1st Appellant Geoffrey Ondicho Osoro 2nd Appellant and Alfred Nyanumba Obiero Respondent (Being an appeal from the judgment and decree of the Chief Magistrate’s Court at Nyamira (C I Agutu, Senior Resident Magistrate) delivered on 12th March 2025 in Nyamira MCELC No. E003 of 2021) Judgment 1.Proceedings leading to this appeal commenced in the Subordinate Court on 12th January 2021 when the Respondent filed Plaint dated 12th January 2021, against the Appellants. The Respondent averred in the Plaint that the First Appellant was the father of the Second Appellant and that by a written sale agreement made in 1999, the First Appellant sold to him (the Respondent) a portion of land parcel number North Mugirango/Boisanga/6399 (suit property) measuring about one acre at an agreed price of KShs 100,000 which amount was used to pay school fees for the Second Appellant. 2.The Respondent further averred that he took possession of the portion and remained in occupation until December 2018 when the Appellants cut down his trees and forcefully evicted him. He therefore prayed for judgment against the Appellant jointly and severally for:a.An order of specific performance ordering the 2nd Defendant to transfer a portion of land sold to the Plaintiff.b.In the alternative the Defendants be ordered to refund the purchase price of Kshs. 100,000/= and Kshs. 562,940/= being the value of the trees damaged by the Defendants together with interest at court rates.c.Costs of this suit.d.Any other or further relief as the court may deem fit to grant. 3.Upon hearing the matter, the Subordinate Court (C I Agutu, Senior Resident Magistrate) delivered judgment on 12th March 2025 and ordered the Appellants to: 1.Specifically perform the contract by transferring the portion of land to the Plaintiff within 30 days of this judgment. 2.In the alternative, refund the purchase price of Ksh. 100,000/- and pay KSh. 562,940/- as compensation for the damaged trees, with interest at court rates from the date of the agreement until full payment is made. 3.The defendants shall bear the costs of the suit. 4.Dissatisfied with the outcome, the Appellant filed this appeal through Memorandum of Appeal dated 9th April 2025 and prayed that the appeal be allowed, that the judgment of the Subordinate Court be set aside, that a declaration be made that there was breach of contract by the Respondents thereby making specific performance inapplicable, in the alternative a retrial be ordered and that they be awarded costs of both the appeal and of the proceedings in the Subordinate Court. 5.I reproduce the grounds of appeal below, as listed on the face of the Memorandum of Appeal: 1.The Learned Magistrate erred in fact and in Law in failing to appreciate that there was breach of contract in the sale of Land agreement contract as the Respondent did not meet his obligation of paying the full purchase price amount. The Learned Magistrate trial magistrate therefore erred in law by failing to recognize the provisions of the law of contract Act. 2.The Learned Magistrate erred in fact and in law in relying on hearsay and viva voce evidence without documentary evidence as provided for in the Evidence Act as prove of payment and the respondent’s eventual meeting his contractual obligation of paying the purchase price. 3.The Learned Trial Magistrate misapprehended the gist understanding the issues of the suit by being totally biased compromised or unfair by ordering that the Appellants to pay Ksh.100,000 as refund of the purchase price and pay Kshs. 562,940/= unsubstantiated amount on trees Planted in the suit property without any documentary evidence. This was a clear abuse of judicial powers. 4.The Learned Magistrate erred in fact and in law in giving an ambiguous and non-executable judgment by contradicting herself as to whether the Appellant should surrender ownership of the suit property or refund the purchase price. The learned magistrate failed to exercise her powers in giving a clear and predictable judgment capable of solving the dispute and herein. 5.The Learned Magistrate erred and proceeded on the basis of discredited and unreliable evidence to award the Costs of the suit. 6.All in all, the Learned Magistrate so misdirected herself on matters of both law and facts thereby completely being unfair and unable to be an arbiter as to occasion a miscarriage of justice against the Appellants. 6.The appeal was canvassed through written submissions. The Appellants filed submissions dated 19th December 2025 while the Respondent filed submissions dated 26th January 2026. 7.It was submitted on behalf of the Appellants that the Respondent did not complete his side of the bargain by paying only KShs 45,000 and that the Respondent admitted not to have paid the balance but instead contended that he paid school fees for the Second Appellant. That payment of school fees was not a term of the sale agreement. 8.It was submitted that in the circumstances, the Appellants were entitled to repudiate the agreement for failure of performance by the Respondent. That since the Respondent had failed to perform his part by paying the balance of KShs 55,000, he could not demand performance by the Appellants. Reliance was placed on the cases of Sisto Wambugu v Kamau Njuguna [1983] KECA 69 (KLR) and United Dominions Trust (Commercial) Ltd v Eagle Aircraft Services Ltd [1968] 1 All ER 104 in support of those submissions. 9.Relying on Nyutu Agrovet Limited v Airtel Networks Limited (Civil Appeal (Application) 61 of 2012) [2015] KECA 1012 (KLR) (6 March 2015), it was submitted that parties are bound by their contracts, that Courts cannot amend terms of contracts and that the Learned Magistrate erred by accepting alleged payment of school fees as consideration. 10.It was equally submitted on behalf of the Appellants that having breached the contract, title to the suit property and the trees thereon did not pass to the Respondent and that the Learned Magistrate erred in awarding him KShs 562,940 as compensation for damaged trees. That the Second Appellant was the registered proprietor of the suit property together with trees thereon hence the Respondent had no claim on damage arising from the cutting of the trees. 11.It was further submitted that the Respondent did not specifically plead and prove special damages. Relying on the cases of N.K. Arap Ng'ok v Moijo Ole Keiwua & 4 others [1997] KECA 1 (KLR) and Banque Indosuez vs DJ Lowe and Company Ltd [2006] 2 KLR 208, the Appellants urged the Court to allow the appeal with costs. 12.On the part of the Respondent, it was submitted that the First Appellant was the one who invited the Respondent to purchase a portion of the suit property and that the Appellants conceded that KShs 45,000 was paid on execution of the agreement. That the Respondent was in possession between 1999 and 2018 and that the Learned Magistrate exercise of discretion in believing the Respondent cannot be questioned on appeal since the appellate Court does not have the benefit of the impression made on the trial Court by the witnesses. 13.It was further submitted on behalf of the Respondent that the trial Court chose to disbelieve the Appellants largely because their evidence contradicted itself on material aspects and that if the Appellants were not ready to give the land, they should pay the amount ordered by the trial Court which found them in breach of the sale agreement. The Respondent contended that the appeal lacked merit and urged the Court to dismiss it with costs. 14.This is a first appeal. The remit of a first appellate court was restated by the Court of Appeal in Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR thus:This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyse the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way. See the case of Kenya Ports Authority versus Kuston (Kenya) Limited (2009) 2EA 212 wherein the Court of Appeal held inter alia that:“On a first appeal from the High Court, the Court of Appeal should reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence.” 15.I have carefully considered the grounds of appeal, the entire record and the parties’ submissions. The issues that arise for determination are whether the Respondent had fulfilled his obligations under the contract and whether the reliefs sought were available. 16.There is no dispute that the First Appellant and the Respondent entered into an agreement dated 17th October 1999 pursuant to which the First Appellant sold to the Respondent a portion of land at an agreed price of KShs 100,000. Whereas the agreement did not specify any particular parcel number, the evidence on record and the parties’ pleadings show that the transaction was over three quarters of an acre portion of land parcel number North Mugirango/Boisanga/6399 (suit property). There is further no dispute that the Respondent paid a sum of KShs 45,000 as of the date of the agreement and that the balance was to be paid later. 17.It is trite that once the existence of a contract is established, a Court of Law cannot rewrite the contract between the parties, and the parties are bound by the terms of the contract. In that regard, the Court of Appeal held in National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & another [2001] eKLR as follows:A Court of law cannot re-write a contract between the parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded and proved. There was not the remotest suggestion of coercion, fraud or undue influence in regard to the terms of the charge.As was stated by Shah JA in the case of Fina Bank Limited vs Spares & Industries Limited (Civil Appeal No 51 of 2000) (unreported):“It is clear beyond peradventure that save for those special cases where equity might be prepared to relieve a party from a bad bargain, it is ordinarily no part of equity’s function to allow a party to escape from a bad bargain.” 18.Pursuant to Section 97 (1) of the Evidence Act, oral or extrinsic evidence to prove the terms of a written contract is inadmissible. This is what is usually referred to as the parole evidence rule. The section provides:When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions of this Act. 19.The parole evidence rule is explained in Halsbury’s Laws of England (4th Edn) vol. 9 (1) at para 622 as follows:Where the intention of parties has in fact been reduced to writing, under the so called parole evidence rule, it is generally not permissible to adduce extrinsic evidence, whether oral or written, either to show the intention, or to contradict, vary or add to the terms of the document, including implied terms. 20.The Respondent’s case is that he paid the balance by paying the Second Appellant’s school. Even as he said so, he did not produce any proof of payment. Both Appellants have insisted that the balance remains unpaid and that the Respondent did not pay any school fees. 21.A reading of the agreement reveals a purchase price of KShs 100,000 and that the Respondent paid KShs 45,000 leaving a balance of KShs 55,000. The agreement does not anywhere state that the balance was to be settled through payment of school fees. The Respondent’s attempt to claim that he settled the balance through payment of school fees is both impermissible under the parole evidence rule and remains unproven. I find that the balance of KShs 55,000 remains unpaid and that the Respondent was in breach of the agreement. 22.The Respondent sought specific performance to compel the Appellants to transfer to him the portion of the suit property. Specific performance is a discretionary and equitable remedy. Consequently, its availability as a relief is affected such maxims as "he who comes to equity must come with clean hands" and "equity will not assist a party in breach." A litigant seeking specific performance must prove that he has strictly performed all his contractual obligations or that he is ready, willing, and able to perform them. See Mangi v Munyiri & another [1991] KECA 13 (KLR). 23.As the Court of Appeal held in Gurdev Singh Birdi & Narinder Singh Ghatora as Trustees of Ramgharia Institute of Mombasa v Abubakar Madhbuti [1997] eKLR, the underlying principle in granting the equitable relief of specific performance is that under all the obtaining circumstances in the particular case, it is just and equitable so to do with a view to doing more perfect and complete justice. The Court went on to state:Where a condition or essential term ought to have been performed by the plaintiff at the date of the writ, the court does not accept his undertaking to perform in lieu of performance, but dismisses the claim. 24.In view of the finding that the Respondent was in breach, specific performance was not available to him and awarding it would neither be just nor equitable. In granting specific performance in the circumstances, the Learned Magistrate wrongly exercised her discretion. Consequently, this Court has reason to interfere with the exercise of discretion. 25.The Respondent also sought judgment for KShs 100,000 being refund the purchase price and KShs 562,940 being value of damaged trees. Being special damages, the law is that they must be specifically pleaded and strictly proved with a degree of certainty and particularity. See Richard Okuku Oloo vs South Nyanza Sugar Co. Ltd [2013] eKLR. 26.The Respondent did not plead any particulars of the sums that he claimed. In those circumstances, any part of the special damages that was not admitted remained unproven. In particular, the sum of KShs 562,940 being value of damaged trees was not proven. The Learned Magistrate erred in awarding the sum. 27.Regarding the sum of KShs 100,000 being refund the purchase price, I note that the Appellants admitted receiving KShs 45,000 from the Respondent as part payment of the purchase price. At paragraph 3 of their defence, they sought to refund the said sum. In his testimony, the First Appellant reiterated readiness to repay the sum of KShs 45,000. In view of the admission, the sum of KShs 45,000 needed no proof and was thus not affected by the requirement that special damages must be pleaded and proven. I will award the Respondent the said sum. 28.In view of the foregoing, I find merit in the appeal and I therefore allow it. I make the following orders:a.I set aside the judgment of the Subordinate Court.b.I enter judgment in favour of the Respondent and against the First Appellant for KShs 45,000 (Kenya Shillings Forty Five Thousand) with interest at Court rate from the date of filing of the suit in the Subordinate Court until payment in full.c.Parties shall bear own costs of this appeal and of the proceedings in the Subordinate Court. DATED, SIGNED, AND DELIVERED AT NYAMIRA, THIS 20TH DAY OF MAY 2026.D. O. OHUNGOJUDGEDelivered in the presence of:Mr Ondima holding brief for Ms Momanyi for the AppellantsMr Masese for the RespondentCourt Assistant: Edinah N