https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3323

Gichengo v Ndiva (Environment and Land Appeal 66 of 2021) [2026] KEELC 3323 (KLR) (26 May 2026) (Judgment) Neutral citation: [2026] KEELC 3323 (KLR) Republic of Kenya In the Environment and Land Court at Mombasa Environment and Land Appeal 66 of 2021 JO Olola, J May 26, 2026 Between Jane Wangechi Gichengo Appellant and Kennedy Muthini Ndiva Respondent (An Appeal arising from the judgment of the Honorable G. Kiage SRM as delivered on 11th October 2019 in Mombasa CMCC No. 2324 of 2013) Judgment Background 1.This is an Appeal arising from the judgment of the Honorable G. Kiage SRM as delivered on 11th October 2019 in Mombasa CMCC No. 2324 of 2013. 2.By a Plaint dated 30th August 2010, Kennedy Muthini Ndiva (the Respondent herein) had sought judgment against Jane Wangechi Gichengo (the Appellant) for:a.An order of Specific Performance compelling the Defendant to avail the completion documents to the Joint Advocates and/or complete the agreement;b.Costs of the suit; andc.Any other relief. 3.The basis for those prayers was the Respondent's contention that on 26th February 2010, he had entered into an agreement with the Appellant for the sale of a plot being Title No. Kilifi/Mtwapa/1765 (hereinafter "the suit land") at a consideration of Kshs. 2,000,000/=. It was the Respondent's case that the Appellant had severally tried to repudiate the sale agreement to the detriment of the Respondent. 4.The Respondent asserted that as at the time of filing the suit, the Appellant had not invoked the provisions that required her to refund the deposit of Kshs. 1,000,000/= and that the Appellant was in breach of the sale agreement. 5.On the other hand, the Appellant rejected the Respondent's claim. In her Statement of Defence dated 30th September 2010, the Appellant pleaded that the extension of the completion period was done after due consultation with the Respondent and that she had explained to the Respondent the circumstances that had warranted the extension. 6.The Appellant further asserted that the attempted repudiation had not been done to the disadvantage of the Respondent and that the same was sought after consultation with the Respondent based on the terms that the Appellant was ready to refund the purchase price together with any consequential expenses that were incurred. 7.Further and in addition to the foregoing, the Appellant asserted that although the intention of the parties was to complete the sale transaction, the parties had agreed under Clause 3(i) of the agreement that in the event of an intervening circumstance that could render performance impossible, either party was at liberty to repudiate the agreement subject to the conditions stated therein. 8.Having heard the parties and in his judgment delivered on 11th October 2019, the Learned Trial Magistrate came to the finding that the Respondent had successfully proved his case against the Appellant and proceeded to grant the orders as sought in the Plaint. 9.Aggrieved by the said determination, the Appellant moved to this Court and lodged a Memorandum of Appeal dated 4th November 2019 urging this Court to set aside the judgment on some seven (7) grounds listed as follows:1.The Trial Court erred in law in that it completely failed to apply and uphold the requirements set out in Section 6 of the Land Control Act, which requirement was applicable to the arrangement that was entered into between the Appellant and the Respondent with regard to the sale of the suit property known as Plot No. Kilifi/ Mtwapa/1765;2.The Trial Court erred in law in holding that a valid Contract existed between the said parties over the intended sale of plot No. Kilifi/Mtwapa/1765 when the said so called valid contract stood contra Section 6 of the Land Control Act;3.The Trial Court erred in law when it ordered that an order of specific Performance do take place for the transfer of Plot No. Kilifi/Mtwapa/1765 so as to enforce the aforesaid invalid contract, while the law requires that an order of specific performance can only be granted to enforce a valid contract and not otherwise;4.The Trial court erred in law when it ordered that an order of specific performance do take place over the sale of Plot No. Kilifi/Mtwapa/1765 while yet no registration of the transfer of an interest in land that falls in a land control area can be allowed to take place when a Land Control Board Consent is not in place; as the Trial Court did not determine how much consents would be availed when the evidence on record is that the Appellant's family is not willing to have the said consent issued, the same thereby renders the said Judgment incapable of being realized (otiose);5.The Trial Court erred in law in that it failed to apply the provisions set out in clause 2 (i) at page 3 of the Agreement of sale dated 26th February, 2010 which more or less repeated clause k in the earlier Agreement for the sale of the same property dated 23rd September, 2009. To that extent, the Judgment made by the Court amounts to the Trial Court having re-written another Agreement for the parties which the law does not allow;6.The Trial Court erred in having held that an award of damages would have been an inadequate remedy while the parties had expressly agreed in clause k in the said Agreements for sale aforesaid on the remedy available to them upon the termination of the said Agreement for sale; and7.The Trial court erred in that it arrived at the Judgment that is totally against the weight of the Law. Analysis and Determination 10.This is a first appeal. It is settled law that the duty of the first appellate Court is to re-evaluate the evidence which was adduced in the subordinate Court both on points of law and fact and come up with its own findings and conclusions (see Peter-vs- Sunday Post Limited [1958] EA 424). 11.In Selle & Another-vs-Associated Motor Boat Company Ltd. & Others (1968) 1 EA 123, that duty was stated as follows:“...this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind (the fact) that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge's findings of fact if it appears that he has clearly failed on some point to take account of particular circumstances or probabilities or materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence on the case generally. (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)." 12.Accordingly, I have carefully perused and considered the Record of Appeal together with the impugned judgment. I have similarly perused and considered the submissions and authorities placed before the Court by the Learned Advocates representing the parties. 13.In his Plaint dated 30th August 2010, the Respondent had sought for an order of specific performance to compel the Appellant to avail the completion documents to their joint Advocate and/or to complete the agreement entered into by the parties on 26th February 2010. It was the Respondent's case that by the said agreement, the Appellant had agreed to sell to her Plot No. Kilifi/Mtwapa/1765 at a consideration of Kshs. 2,000,000/=. The Respondent accused the Appellant of trying severally to repudiate the agreement after he had paid the Appellant a deposit of Kshs. 1,000,000/-. 14.As it were, the Appellant did not deny that they had entered into the sale agreement with the Respondent. It was however her case that after executing the said agreement her husband and son had disagreed with her on the issue of the sale and it was then that she had decided to opt out of the agreement. The Appellant asserted that Clause 2(i) of the sale agreement permitted herself as the vendor to refund any monies paid in the event the agreement or transaction failed to materialize 15.Having considered the issues before him and in particular whether the Appellant was entitled to repudiate the agreement by virtue of its terms, the Learned Trial Magistrate concluded as follows (Pg. 256 to 257 of the Record):“The provisions of the contract that is in issue in the present case is in my view clear and unambiguous and the words thereof are simple, that is to say, their meaning and effect is discernible on their face hence they ought to be taken to mean exactly what they say. That is, in the event of failure to proceed fully with the transaction for any reason parties provided for themselves an exit door.The question however is, how wide is the exit door the parties left for themselves? And to answer this, we must consider whether the phrase "for any reason" contained in clause 2(k) of the agreement was meant to allow a party who by his own act or omission gave rise to frustration of the agreement (sic), to then turn back and claim cover thereunder and seek to repudiate the agreement? I am afraid that to take such interpretation would in my view result to absurd consequences and render the entire agreement of no effect. This would lead to the inference that the parties were engaged in a futile activity and they (do) not intend to be bound at all by the terms of the agreement, hence the entire agreement would be rendered impotent, meaningless and without practical purpose which cannot be the case.At paragraph No.1 of the agreement the defendant/vendor is declared as the sole proprietor of the suit property, she also admitted during her testimony that the land is registered solely in her name. Further at paragraph No. 2(c)of the agreement she undertook to obtain the consents necessary to transfer the suit property into the purchaser's name. At no point did the issue of her needing to obtain the approval of her husband and son arise. The failure to obtain the necessary consents in time was not occasioned by any unforeseen event but the defendant deliberately decided not to fulfill her end of the bargain. This cannot in my view be what the parties had in mind when they came up with the provisions under clause 2(k) of the agreement. I find therefore that the actions of the defendant are not excluded under the said clause and were simply acts in breach of contract." 16.I was however unable to arrive at the same conclusion as the Learned Trial Magistrate. The said clause 2(k) (erroneously indicated as 2(i) in the agreement) provided as follows:“That the parties agree that any failure to proceed fully with the transaction to the finalization, for whatever reason, the vendor shall refund to the purchaser all the monies paid to her by the purchaser without any delay and the parties shall thereafter treat the transaction as cancelled." 17.It was plain and clear from my reading of the above clause that the parties had expressly agreed that in the event of any failure to finalize the agreement for whatever reason, the vendor was required to refund any monies she had received to the purchaser and thereafter the agreement would be considered as having terminated. There was nothing in the above clause which had limited the cancellation of the agreement to unforeseen events as stated by the Learned Trial Magistrate in the judgment. 18.From the material placed before the Court, it was evident that by a letter dated 5th July 2010, the Appellant wrote to M/s. Ananda and Co. Advocates which firm was acting for both parties in the sale transaction, informing them that her husband and son had objected to the transaction and requiring for a variation of the agreement as provided under clause 2(b) thereof. The said Clause had granted the parties the power to change and/or alter any of the terms of the agreement provided notice was given before such variation. 19.Subsequently and by a letter dated 18th August 2010 addressed to the Respondent and copied to their Joint Advocate, the Appellant wrote as follows:"RE: Agreement for sale of Land In Kilifi/ Mtwapa/1765Further to my letter dated 5th July 2010 where I requested for a variation of payment, I wish to confirm that due to family constraints and disagreement, I am unable to proceed with the transaction as per our agreement dated 26th February 2010. The above is in accordance with clause (i) page 3 of the said agreement.In the circumstances, I am acceptable to refund to you all the deposit of the purchase price as advanced to me together with Advocates' costs incurred and any reasonable accrued interest and attendant expenses upon your confirmation of my letter within a period to be agreed upon.I am deeply sorry to have inconvenienced yourself about this transaction." 20.In my considered view, having chosen to opt out of the contract as stated in her letter, the Appellant could not be compelled to complete the transaction which she had repudiated in accordance with the terms of the agreement. 21.As the Court of Appeal held in the case of Pius Kimaiyo Lang'at -vs-Co-operative Bank of Kenya ltd (2017) eKLR:“We are alive to the hallowed legal maxim that it is not the business of Courts to rewrite contracts between parties. They are bound by the terms of their contracts, unless coercion, fraud or undue influence are pleaded and proved." 22.While indeed it may look absurd that a party was allowed to opt out of the transaction at any time before the finalization of the agreement, that is exactly what the parties had agreed to and they were bound by the same. By delving into the registration status of the suit property to validate the fact that the Appellant did not require the consent of her husband or any party to transfer the property, the Trial Court was in actual fact trying to re-write the agreement between the parties to provide that there was need to provide a proper reason before one could repudiate the agreement. 23.In the premises, I am persuaded that the Learned Trial Magistrate fell in error in his determination that the Appellant had breached the contract and that the Respondent was entitled to an order of specific performance. 24.Accordingly, I hereby allow the Appeal, set aside the judgment delivered in the Lower Court on 11th October 2019 and substitute therewith an order dismissing the Respondent's suit with costs. 25.In respect of this Appeal, each party shall bear their own costs. 26.It is so ordered. JUDGMENT DATED, SIGNED AND DELIVERED IN OPEN COURT AND VIRTUALLY AT MOMBASA THIS 26TH DAY OF MAY, 2026.…………………………..J.O. OLOLAJUDGEIn the presence of:a) Mr. Leakey Court Assistant.b) Mr. Gikandi Advocate for the Appellantc) Mr. Mutugi Advocate for the Respondent