https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/285

Kinuthia v Mwilu aka Josephat Muthenya Mwilu (Civil Case E015 of 2024) [2026] KEMC 285 (KLR) (30 June 2026) (Judgment) Neutral citation: [2026] KEMC 285 (KLR) Republic of Kenya In the Makindu Law Courts Civil Case E015 of 2024 YA Shikanda, SPM June 30, 2026 Between John Njenga Kinuthia Plaintiff and Josephat Mulandi Mwilu Aka Josephat Muthenya Mwilu Defendant Judgment The Claim 1.John Njenga Kinuthia (hereinafter referred to as the plaintiff) filed this suit on 2/2/2024 vide a plaint dated 29/1/2024. The plaintiff sued Josephat Mulandi Mwilu aka Josephat Muthenya Mwilu (hereinafter referred to as the defendant) on account of a sale of land agreement. The plaintiff averred that on 28/9/2022 the plaintiff entered into an agreement with the defendant for the purchase of 50 acres of land. That the plaintiff paid the defendant the initial deposit of Ksh. 500,000/= on 29/9/2022 and a further Ksh. 4,500,000/=, making a total of Ksh. 5,000,000/=. The plaintiff further averred that h approached the defendant on numerous accounts to honour his obligation but the defendant remained obstinate, mischievous and arrogant. 2.That after over a year of non-committal of the defendant to honour his obligation, the plaintiff was forced to terminate the contract and demand for his money, but the defendant refused to do so. The plaintiff thus prays for judgment against the defendant for:a.Special damages of Ksh. 5,000,000/=;b.Interest on (a) above from 28/9/2022 at court rates until payment in full;c.Costs and interest;d.Any other relief that this Honourable court may deem fit and just to grant. The Defence 3.The defendant entered appearance on 12/2/2024 and filed a statement of defence and counter-claim on 26/2/2024. The defendant averred that the circumstances were explained to the plaintiff who agreed to purchase as it were and that the plaintiff knowingly entered into a void contract. That the agreement dated 28/9/2022 was ratified and amended through an agreement dated 11/8/2023. The defendant further averred that the plaintiff had never been denied possession and that the delay in transfer was known to the plaintiff. The defendant stated that the plaintiff should have sued before the Environment and Land Court for transfer and possession with an alternative for refund of the purchase price. 4.That the demand for the sum sued was served upon the three brothers but only the defendant was sued. The defendant further stated that the suit was premature and that the plaintiff had no cause of action as in the agreement dated 11/8/2023 he sought completion of the agreement and mediation. In the counter-claim, the defendant sought that the matter be referred to alternative dispute resolution. The defendant accused the plaintiff of colluding with a member of the defendant’s family. He urged the court to dismiss the plaintiff’s suit and prayed for:a.General damages for breach of contract;b.Costs of the suit and counter-claim;c.Interest. The Evidence The Plaintiff’s Case 5.Only the plaintiff testified in support of his case. He adopted his statement as part of his testimony. The plaintiff testified that sometime in September, 2022 he was looking for land to buy and was connected to the defendant who was selling land parcel number Makindu/Kisingo/127. That he entered into an agreement with the defendant on 28/9/2022 for the purchase of 50 acres. The plaintiff paid the initial deposit of Ksh. 500,000/= and a further Ksh. 4,500,000/= on 29/9/2022 directly to the defendant’s account. The plaintiff stated that thereafter, he followed up with the defendant but the latter kept on making promises which he did not fulfil. That the plaintiff followed up until June, 2023 but to no avail. On 14/7/2023 the plaintiff issued a demand letter to the defendant but the same was ignored. 6.The plaintiff stated that on 24/7/2023 he became aware that there was a conflict between the defendant and his brothers in respect of the parcel of land. The plaintiff also learnt that the defendant had no capacity to sell the land as it belonged to his deceased father. It was later agreed that the transaction would be completed and an agreement dated 11/8/2023 was entered into for 40 acres. However, the defendant did not honour his part of the bargain and kept demanding for more money. The plaintiff then rescinded the contract and asked for a refund of the sum of Ksh. 5,000,000/=. The plaintiff produced in evidence, documents in support of his claim. The Defence Case 7.The defendant was also the only witness in support of his case. He adopted a lengthy statement as part his testimony. The summary of it is that the defendant admitted the existence of the sale agreement and receipt of Ksh. 5,000,000/=. However, it was the testimony of the defendant that the money was paid to his family and that it was not proper to sue him alone. The defendant further testified that the suit was premature as the plaintiff was to get his land after completion of the succession proceedings. That the plaintiff was aware of the circumstances before the purchase. The defendant produced documents in support of his case. Facts not in Dispute 8.From the pleadings and evidence on record, the following facts are not in dispute:a.The plaintiff and defendant entered into a sale of land agreement dated 28/9/2022 for the purchase of land;b.The plaintiff paid to the defendant’s account a total sum of Ksh. 5,000,000/= as part of the purchase price;c.The land was registered in the name of the deceased’s father as at the time of purchase;d.The land was sold before completion of the succession proceedings in respect to the estate of the defendant’s deceased father;e.The plaintiff rescinded the agreements and demanded for a refund of the sum of money paid;f.The defendant is yet to refund the sum of money. Main Issues for Determination 9.Given that most of the facts are admitted, the main issues for determination are as follows:i.Whether the court has jurisdiction to hear and determine this suit;ii.Whether the plaintiff properly rescinded the contract;iii.Whether the suit is bad for non-joinder of the defendant’s brothers;iv.Whether the suit is premature in view of the pending succession proceedings;v.Whether the plaintiff has proven his case to the required standard and thus entitled to the reliefs sought;vi.Whether the defendant is entitled to any remedy as against the plaintiff;vii.Who should bear the costs of the suit? The Plaintiff's Submissions 10.The plaintiff filed written submissions in support of his case. He relied on the agreement dated 11/8/2023 and submitted that he performed his obligations. That the defendant failed to honour his obligations and thus breached the agreement. The plaintiff argued that the defendant’s breach amounted to repudiation of the agreement. The plaintiff further argued that the ddefendant’s contention that the Plaintiff must wait for succession proceedings is misplaced in law and raises a serious issue regarding the Defendant’s capacity to sell the property. The plaintiff submitted that a person without legal authority to deal with the estate property of a deceased person cannot validly transact in such property before a grant of representation is issued and confirmed. 11.The plaintiff argued that the property formed part of a deceased person’s estate and as such, the defendant had no legal capacity to enter into the sale agreement, making the Defendant personally liable for the loss suffered by the Plaintiff. The plaintiff relied on the provisions of sections 45 and 82 of the Law of Succession Act and contended that the defendant lack the capacity to enter into the sale agreement. That the agreement was unenforceable. The plaintiff contended that the defendant received money on account of the agreement and cannot escape liability owing to the illegality of the transaction. The plaintiff argued that he was entitled to restitution of the sum paid to the defendant. That there is no evidence to show that the money paid by the plaintiff was shared amongst the defendant and his brothers. Submissions on Behalf of the Defendant 12.The defendant also filed written submissions. He submitted that the plaintiff was well aware of the status of the land but voluntarily entered into the agreement. That the plaintiff had failed to demonstrate any breach of contract on the part of the defendant. The defendant submitted that it was the plaintiff who prematurely repudiated a valid and subsisting agreement. The defendant argued that this court as constituted lacks jurisdiction to hear and determine the claim. That the substratum of the suit concerns rights and obligations arising from a contract for disposition of an interest in land. The defendant argued that the suit ought to have been filed in the Environment and Land Court. 13.In the alternative, the defendant argued that the question of title and capacity to deal with the suit property is subject to ongoing succession proceedings. The defendant submitted that the agreement dated 11/8/2023 is binding upon the parties and that the plaintiff cannot seek to avoid it when he entered into the same with full knowledge of the circumstances surrounding the property including the succession proceedings and family dispute. The defendant submitted that he took active steps towards performance of the contract and that full performance was dependent on the succession proceedings. That the plaintiff rescinded the contract in less than a month after executing the agreement dated 11/8/2023, which was not a reasonable period for performance. 14.The defendant contended that no fundamental breach on his part was demonstrated and that the plaintiff’s termination was premature and unjustified. The defendant argued that the plaintiff cannot claim that the agreement is void and rely on the same agreement to seek a refund. That the law does not allow a party to rely on an illegality in which he knowingly participated. The defendant submitted that the agreement dated 11/8/2023 involved three vendors yet the plaintiff chose to sue the defendant alone. That liability, if any, is joint and cannot be imposed solely on the defendant in the absence of the other defendants. The defendant argued that the plaintiff voluntarily paid the sum of Ksh. 5,000,000/= under the contract and cannot seek restitution after repudiating the contract. That the plaintiff has not demonstrated that the defendant alone received and retained the money for his sole benefit. The defendant contended that he was ready and willing to perform his obligations under the contract and that owing to the plaintiff’s premature termination, the defendant was occasioned loss, for which he was entitled to damages. Analysis and Determination 15.I have carefully considered the matter and given due regard to the submissions filed by the parties. I will start with the issue of jurisdiction. The issue of jurisdiction was raised by the defendant in his statement of defence. Unfortunately, the issue was not pursued as a preliminary point before the matter was set down for hearing. When I took over the matter following the transfer of my predecessor, the matter had already been certified as ready for hearing. In the writings of John Beecroft Saunders in a treatise entitled "Words and Phrases Legally defined" – Volume 3: I – N at page 113, quoted in the case of Seven Seas Technologies Limited v Eric Chege [2014] eKLR, the following was said about jurisdiction:“By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given”. 16.In the celebrated case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, Justice Nyarangi (as he then was) of the Court of Appeal 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”. 17.In Samuel Kamau Macharia & Another v Kenya commercial Bank & 2 others [2012] eKLR, the Supreme Court of Kenya pronounced itself on jurisdiction and stated:“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.” 18.The Constitutional and statutory foundation for the jurisdiction of the Magistrates courts is Articles 23 (2) and 169(1) (a) of the Constitution as read with the Magistrates Court Act No. 26 of 2015. Section 4(1) of the Magistrates Court Act stipulates as follows:“The objective of this Act is to enable magistrate courts to facilitate just, expeditious, proportionate and accessible judicial services in exercise of the criminal and civil jurisdiction in this Act or any other written law.” 19.From the above provision, it can be inferred that in order to ascertain whether a Magistrate's court has jurisdiction to try a matter before it, the court does not have to restrict itself to the provisions of the Magistrates Court Act. Jurisdiction may be conferred or ousted by other written law. According to section 5 of the Civil Procedure Act, any court shall, subject to the provisions contained in the Act, have jurisdiction to try all suits of a civil nature excepting suits of which its cognizance is either expressly or impliedly barred. 20.Article 162(2) of the Constitution of Kenya provides that:“Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to—a.employment and labour relations; andb.the environment and the use and occupation of, and title to, land.” 21.Article 162(3) provides that Parliament shall determine the jurisdiction and functions of the courts contemplated in clause (2). 22.Pursuant to Article 162(2) (b) of the Constitution, Parliament enacted the Environment and Land Court Act. The Act provides at section 13 as follows:“(1)The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land.(2)In exercise of its jurisdiction under Article 162(2) (b) of the Constitution, the Court shall have power to hear and determine disputes—a.relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;b.relating to compulsory acquisition of land;c.relating to land administration and management;d.relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; ande.any other dispute relating to environment and land.(3)Nothing in this Act shall preclude the Court from hearing and determining applications for redress of a denial, violation or infringement of, or threat to, or fundamental freedom relating to a clean and healthy environment under Articles 42, 69 and 70 of the Constitution.(4)In addition to the matters referred to in subsections (1) and (2), the Court shall exercise appellate jurisdiction over the decisions of subordinate courts or local tribunals in respect of matters falling within the jurisdiction of the Court.(5)In exercise of its jurisdiction under this Act, the Court shall have power to make any order and grant any relief as the Court deems fit and just, including—a.interim or permanent preservation orders including injunctions;b.prerogative orders;c.award of damages;d.compensation;e.specific performance;f.restitution;g.declaration; orh.costs.” (Emphasis supplied) 23.Section 150 of the Land Act provides:“The Environment and Land Court established in the Environment and Land Court Act (Cap. 8D) and the subordinate courts as empowered by any written law shall have jurisdiction to hear and determine disputes, actions and proceedings concerning land under this Act.” 24.It is not in dispute that the claim arises out of a failed contract for the disposition of an interest in land. The plaintiff is not seeking specific performance or an interest in the land. He is seeking a refund of what he had paid on account of the failed transaction. The plaintiff is said to have paid Ksh. 5,000,000/= to the defendant and seeks a refund of the same. In the plaint, the plaintiff refers to the amount as special damages. The million-dollar question is; should the matter have been filed in the Environment and Land Court or an ordinary civil court? In the authority of Cooperative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 others [2017] KECA 79 (KLR), the Court of Appeal had this to say:“……….the jurisdiction of the ELC to deal with disputes relating to contracts under Section 13 of the ELC Act ought to be understood within the context of the court’s jurisdiction to deal with disputes connected to ‘use’ of land as discussed herein above. Such contracts, in our view, ought to be incidental to the ‘use’ of land; they do not include mortgages, charges, collection of dues and rents which fall within the civil jurisdiction of the High Court……………..By parity of reasoning, the dominant issue in this case was the settlement of amounts owing from the respondents to the appellant on account of a contractual relationship of a banker and lender. While exclusive, the jurisdiction of the ELC is limited to the areas specified under Article 162 of the Constitution, Section 13 of the ELC Act and Section 150 of the Land Act.” 25.In view of the above authority, my opinion is that the answer to the question of which court has jurisdiction depends on the real substance of the claim. A mere request for a refund does not automatically make it a civil court matter; the court looks at the nature of the dispute. The key question would be; is the court being asked to determine rights, obligations, rescission, performance, or remedies arising from a land sale agreement? If the answer is in the affirmative, my view is that the proper forum should be the Magistrate’s court constituted as an Environment and Land Court. I say so because the claim arises from a land sale contract and for the court to grant the remedy sought, it has to interrogate the validity or otherwise of the land transaction giving rise to the dispute. 26.The gist of the plaintiff’s claim is restitution. Restitution is a legal remedy aimed at restoring a person to the position they were in before a wrongful act, failed transaction, or unjust enrichment occurred. It means giving back what was received or restoring the benefit that was wrongly obtained. Under section 13(5) (f) of the Environment and Land Court Act, the Environment and Land Court has jurisdiction to order for restitution as a remedy. As already stated, before the court orders for restitution, it has to determine whether the contract was valid, whether either party was in breach, whether the plaintiff rightfully rescinded the contract and what remedies are available, among others. 27.The court cannot just deal with the issue of restitution without considering the substratum of the dispute. The substratum of the dispute concerns the rights and obligations of parties under a contract for the purchase of land. In other words, the dispute is founded on a contract granting an interest in land. In my view, these fall squarely within the jurisdiction of the Environment and Land Court. Section 13(2) (d) of the Environment and Land Court Act gives the court jurisdiction to hear and determine disputes relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land. 28.The dispute herein arises from:i.an agreement for sale of land;ii.payment of purchase price pursuant to that agreement;iii.failure/refusal to complete the land transaction;iv.rescission/termination of that land sale agreement; andv.refund as a consequence of the failed land transaction. 29.The plaintiff’s right to recover the consideration paid arises from a land sale contract. The court may pose and seek to answer questions such as:a.Was the agreement valid?b.Did the defendant have capacity/authority to sell?c.Is the agreement capable of enforcement?d.What remedies flow from the failed land transaction? 30.My view is that the correct jurisdictional approach is to look at the root of the dispute. From the plaint, the plaintiff is not claiming a general debt. The Ksh. 5 million was paid as part of the purchase price under a land sale agreement. The plaintiff’s complaint is that the defendant entered into a transaction for sale of land but failed to complete it. The plaintiff seeks consequences of the failed land transaction (rescission/refund). The central issue therefore is:“What is the legal effect of a failed/invalid land sale agreement and what remedies arise from it?” 31.The claim arises from the land sale contract itself. This is because section 13(2) (d) of the Environment and Land Court Act gives the ELC jurisdiction over disputes relating to public, private and community land and contracts, choses in action or other instruments granting enforceable interests in land. The fact that the remedy sought is money does not automatically remove ELC jurisdiction. 32.I think I have said enough to show that this court as currently constituted lacks jurisdiction to hear and determine the instant dispute. In view of the foregoing, I will proceed to down my tools at this stage. I do not find it necessary to determine the other issues. Disposition 33.I have agonized on whether I should strike out or dismiss the suit, now that evidence was taken herein. Jurisdiction is a fundamental defect and without jurisdiction, the court cannot determine a suit on merits. Since I have declined to proceed further for want of jurisdiction, my view is that the proper action is to strike out the suit, which I hereby do, with costs to the defendant. The plaintiff is at liberty to reinstitute the suit in the proper forum, subject to the law of limitation. DATED, SIGNED AND DELIVERED VIA CTS THIS 30TH DAY OF JUNE, 2026.Y.A SHIKANDASENIOR PRINCIPAL MAGISTRATE.