https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3091

Tuitoek v Kiberut (Environment and Land Appeal E002 of 2025) [2026] KEELC 3091 (KLR) (22 May 2026) (Judgment) Neutral citation: [2026] KEELC 3091 (KLR) Republic of Kenya In the Environment and Land Court at Kabarnet Environment and Land Appeal E002 of 2025 BN Olao, J May 22, 2026 Between Jonathan Tuitoek Appellant and Simon Kipsang Kiberut Respondent (Being an appeal from the Judgment of HON. CAROLINE R. T. ATEYA PRINCIPAL MAGISTRATE delivered on 13th November 2024 in KABARNET SENIOR PRINCIPAL MAGISTRATE’S COURT ELC CASE NO. E018 OF 2021) Judgment 1.JONATHAN TUITOEK (the Appelant herein) was the Plaintiff in KABARNET SENIOR PRINCIPAL MAGISTRATE’S COURT ELC CASE NO. E018 of 2021. He had moved to that court claiming that he and SIMON KIPSANG KIBERUT (the Respondent herein and who was the Defendant in the case) had entered into a land sale agreement dated 8th April 2020 by which the Appellant sold to the Respondent the land parcel NO. BARINGO/KAPROPITA/ 1883 (the suit land). The sale agreement produced during the trial shows that the purchase price was Kshs. 810,000. A sun of Kshs. 460,000 was paid at time of signing and Kshs. 350,000 as follows; Kshs. 150,000 by 20th August 2020 and the balance of Kshs. 200,000 by February 2021. The Appellant was to take the Respondent to the Land Control Board other payment of the last instalment in February 2021. 2.However, the Respondent breached the sale agreement and by the end of February 2021, he had only paid the sum of Kshs. 70,000 and yet on 16th June 2021, he entered the suit land while still having an outstanding balance of Kshs. 280,000. Despite several oral requests, the Respondent failed to pay the said balance and a completion notice of 21 days was issued to him and served on 17th March 2021 after which the sale agreement stood revoked. Notwithstanding the revocation, the Respondent proceeded to send to the Appellant via Mpesa the balance of Kshs. 280,000 which the Appellant however returned. Then on 16th June 2021, the Respondent took to the suit land building materials and proceeded to construct thereon a small wooden structure which amounted to trespass. 3.The Appellant therefore filed this suit and sought Judgment against the Respondent in the following terms;a.A declaration that the land sale agreement dated 8th April 2020 was revoked upon the expiry of 21 days.b.An order of permanent injunction restraining the Respondent by himself, his servants, employees, agents and/or any person acting under his instructions or for his interests from entering, dealing, remaining and/or in any way interfering with the land parcel No. BARINGO/ KAPROPITA/1883.c.An order for demolition of the structure on the Land Parcel No. BARINGO/KAPROPITAL/1883.d.Mesne profits of Kshs. 12,000 per month from the date of filing suit until Judgment is delivered.e.Damages for breach of contract and trespass.f.Costs of this suit. 4.In his defence dated 6th September 2021 and filed on 7th September 2021, the Respondent denied the allegations of breach of contract or that he had failed to pay the balance of Kshs. 280,000. 5.He added that following the execution of the sale agreement on 8th April 2020, he took possession of the suit land and extensively developed it. He denied having been served with any notice of revocation of the agreement adding that he had sent church elders to the Appellant to find out why he (Appellant) had returned the balance of the purchase price. He sought the dismissal of the Appellants suit with costs. 6.The Appellant filed a reply to the defence in which he joined issues with the Respondent and described the defence as a sham marred by mere denials and which did not disclose any reasonable defence. He reiterated the averments in his plaint and urged the court to dismiss the defence with costs. 7.The suit was heard by HON. CAROLINE R. T. ATEYA (PRINCIPAL MAGISTRATE) and vide a Judgment delivered on 13th November 2024, she delivered her final orders in the following terms;-a.“The Defendant is in breach of the contract”.b.“An order of specific performance to issue in the following terms that the Defendant is to complete payment of the purchase price together with the 20% of the purchase price as penalty and the Plaintiff as per clause 7 of the agreement, is to assist the Defendant in obtaining the relevant consent and transfer from the relevant authorities the soonest after payment of the said amounts”.c.“General damages are not awarded for breach of contract”.d.“Mesne profits are not awarded”.e.“The Plaintiff is awarded costs and interest at court rates”. 8.The Appellant, aggrieved by part of that Judgment, has now moved to this court vide his memorandum of appeal dated 11th December 2024 and filed on the same day. The Appellant is appealing against the trial court’s Judgment and specifically the findings in Orders (b) and (c) thereof. 9.The following grounds are set out in the memorandum of appeal.1.The learned trial magistrate erred in law and in fact in delivering a contradictory Judgment.2.The learned trial magistrate erred in law and in fact in finding that general damages are not awardable for breach of contract whereas she had already found that the Defendant (Respondent) had breached the contract.3.The learned trial magistrate erred in law and in fact in compelling the Plaintiff (Appellant) to do specific performance to transfer the suit land to the Defendant (Respondent) and yet it was clear that he had breached the contract.4.The learned trial magistrate erred in law and in fact by ordering that the Plaintiff (Appellant) be paid the purchase price together with 20% penalty of the purchase price then to assist the Defendant (Respondent) in obtaining the relevant consent and transfer the suit land to him whereas the Defendant (Respondent) breached the contract.5.The learned trial magistrate’s Judgment has not considered the law pertaining to specific performance and breach of contract and the relevant remedies to be awarded thereof. 10.The Appellant prays therefore that part of the Judgment of the lower court vide orders (b) and (c) be set aside and the Appellant’s claim on the two limbs be allowed with costs. 11.The Appeal has been canvassed by way of written submissions. The same have been filed by MS. BARASA instructed by the firm of Mwaita & Co. Advocates for the Appellant and by the Respondent who is acting in person. 12.I have considered the appeal, the record and the submissions. 13.This being a first appeal, my duty is to re-consider and re-evaluate the evidence adduced before the trial magistrate and thereafter, draw my own conclusions. My mandate is well set out in various decisions of the Appellate court. They include SElle & Another V Associated Motor Boat Company Ltd & Others 1968 Ea 123, Abok James Odera & Associates V. John Patrick Machira T/a Machira & Company Advocates 2013 Keca 208 Klr And Also Mwanasokoni V Kenya Bus Services Ltd 1985 Keca 131 [1985 KLR]. 14.In the case of OKENO V. R 1972 EA 32, the court stated thus;“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and extensive examination (Padya V. R 1957 E A336) and to the appellate Court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw it’s own conclusions (Shantilal M. Buwale V. R1957 E. A570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses. See Peters V. Sunday Post 1958 E.A 424.” 15.Section 78 of the Civil Procedure Act provides for the powers of an appellate court. It states as follows under Sub-sections (1) and (2):1.“Subject to such conditions and limitations as may be prescribed, an appellate court should have power –a.to determine a case finally;b.to remand a case;c.to frame issues and refer them for trial;d.to take additional evidence or to require the evidence to be takene.to order a new trial”2.“Subject as aforesaid, the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Act on courts of original jurisdiction in respect of suit instituted therein”. 16.Guided by the above precedents and the law, the trial magistrate is being faulted for granting the orders of specific performance of the sale agreement and declining to award the Appellant general damages for breach of contract. Those are the issues which I shall now consider.1.Specific Performance Of The Sale AgreementThe terms of the sale agreement were quite clear and left no room for ambiguity. The purchase price was Kshs. 810,00 of which the sum of Kshs. 460,000 was paid and acknowledged on 8th April 2020 at the time of execution of the sale agreement. Clause 4 of the agreement provided that the balance of Kshs. 350,000 would be paid as follows:a.“the sum of Kshs. 150,000 shall be paid on or before August 2020”b.“the final sum of Kshs. 200,000 shall be paid on or before February 2020” 17.It is common ground that the Respondent breached the agreement and the trial magistrate made a finding to that effect. She addressed that issue as follows in paragraphs 38, 39 and 40 of the impugned Judgment:38:“From the evidence tendered, the first payment of Kshs. 460,000 was done when the agreement was signed. Thereafter, the Defendant took possession of the land. The Defendant failed to make the payment of Kshs. 150,000 in August 2020. He confirmed that he paid Kshs. 70,000 after asking for extension of time. The balance of Kshs. 80,000 was to be paid with the last instalment of Kshs. 200,000. He made the payment on 14/6/2021 in 2 instalments of Kshs. 150,000 and Kshs. 130,000.”39:“The payments were done outside the times and dates stipulated in the contract. There was no addendum or amendment done to the agreement and it therefore remains as was written.”40:“From the above analysis, I find on a balance of probability that it was the Defendant who was in breach of the contract.” 18.Following that breach, the Appellant issued to the Respondent a 21day completion notice dated 11th March 2021 thereafter followed a notice of revocation of the sale agreement. It is dated 24th April 2021 and is duly signed by the Appellant although the Respondent says he was not served. In the said revocation notice, the Appellant undertook to refund the Respondent all the amount already paid subject to a deduction of 20% for the breach and a further Kshs. 35,000 being costs for the revocation and Kshs. 4,500 being costs for the demand notice dated 11th March 202. 19.The trial magistrate being found that there was a breach of the sale agreement, she nonetheless stated at paragraph 48 of the impugned Judgment as follows;48:“The Defendant is to complete payment of the purchase price together with his 20% of the purchase price as penalty and the Plaintiff, as per order 7 of the agreement, is to assist the Defendant on obtaining the relevant consent and transfer from the relevant authorities the soonest other payment of the said amount”. 20.It is clear that time was of the essence and the Respondent was given time within which to complete the agreement. The Respondent was unable to do so and so he cannot blame the Appellant for repudiating it. A party who has been subjected to delay can give the defaulting party notice. In the case of Housing Company Of East Africa Ltd V. Board Of Trustees National Social Security Fund & 2 Others 2018 KECA 71 KLR [C.A Civil Appeal No. 267 OF 2018], the court of Appeal relied on the decision of the Supreme Court of Jamaica in the case of J. E. M COnstruction Equipment Ltd .v. Circle B. Farms LTD claim No. 2007 HCR 0S110 where it was stated thus;“It is settled that ‘when time is of the essence there is no leeway for delay’. Completion must be on the date specified. Failure to complete by the date set in the notice is a breach of contract. In such circumstances, the general principle is that the court will not assist the party served with the notice where he fails to complete within the time specified. It follows that all remedies will be available to the aggrieved party, including rescission.” 21.By returning the Kshs. 280,000/- to the Respondent, the Appellant was making it clear to the Respondent that the sale agreement had been rescinded. The remedy of specific performance is an equitable remedy. It is not available to a party who is in breach as was held in the case of Mugambi & Another V. Kanyuuru & 3 Others 2023 KECA 1382 KLR [C. A Civil Appeal No. E380 OF 2020. By the time the trial magistrate was delivering the impugned Judgment, there was no enforceable agreement and so the remedy of specific performance was not available and the trial magistrate erred both in law and in fact by ordering the Appellant to perform it. 22.Having breached the sale agreement dated 8th April 2020, clause 8 thereof came into play. It reads:8:“That the parties agree that any party who breaches this agreement shall pay the aggrieved party 20% of the purchase price and any damages”. 23.And although the trial magistrate, while granting pray (b) in the impugned Judgment, proceeded to direct that the Appellant should “assist the Defendant in obtaining the relevant consent and transfer from the relevant authorities”, the sale agreement having been breached and rescinded, there was no basis upon which that prayer could be founded. The fulcrum of the parties’ agreement had collapsed and there was nothing to support that order. Order No. (b) must therefore be set aside.2.Damages For Breach Of Contract.With regard to Order No. (c), the trial magistrate orders as follows:c.“General damages are not awardable for breach of contract”. 24.Having cited several authorities, the trial magistrate went on to rely on the case of Kenya Women Microfinance Ltd V. Martha Wangari Kamau 2021 eKLR and stated that the law is that general damages are not awardable for breach of contractual obligations. A contract for performance of specific duties or obligations, if breached, would lead to compensation for the specific loss suffered as a result of the breach but not general damages. 25.With regard to the claim for general damages, the trial magistrate was right in declining to award that prayer. In the case of Kenya Tourism Development Corporation V. Sundowner Lodges Ltd 2018 KECA 312 (KLR) (C.A Civil Appeal No. 120 OF 2017) the trial court had taken the view that the court has a discretion to award general damages for a breach of contract. In faulting the trial court, the court of Appeal stated as follows;“With the greatest respect to the learned Judge, we think that the reasoning is quite flawed. We are not persuaded that the authorities cited by the learned Judge support the proposition that in cases of breach of contract there does exist a large and wide-open discretion to the court to award any amount of damages. The opposite is in fact the case: as a general rule, general damages are not recoverable in cases of alleged breach of contract and that has been the settled position of law in our jurisdiction, and with good reason. In Dharamshi V Karsan (1974) EA 41, the former Court of Appeal held that general damages are not allowable in addition to quantified damages with Mustafa J.A expressing the view that such an award would amount to duplication”. 26.In the appeal now before me, the trial magistrate did not err both in law and in fact by declining to award the Respondent general damages for breach of contract. 27.The Appellant had however also sought damages for trespass in paragraph 23 (e) of his plaint. The trial magistrate did not award damages for trespass. In paragraph 49 of the impugned judgment, the trial magistrate held as follows:49:“The plaintiff asked for damages for breach of contract and trespass. Damages for trespass is special damages that needed to be specifically pleaded and proved. The same was not done.” 28.On that finding, the trial magistrate erred in law and in fact and this court must interfere. There was no doubt from the record that the Respondent had indeed trespassed onto the suit land by entering thereon before he had paid the full purchase price. Indeed, the record shows that vide a ruling delivered by HON. P. C. Biwott (senior Principal Magistrate) on 19th August 2021, the Respondent was restrained from putting materials on and developing the suit land as he had not finalized the payment of the purchase price. The fact of trespass was not really in contention. But the trial magistrate erred by finding that damages for trespass are a special damage claim to be specifically pleaded and proved. The correct position is that trespass to land is actionable per se. Once it is established, the party against whom it is committed is entitled to damages. In the case of Kenya Power & Lighting Company Ltd V. Fleetwood Enterprises Ltd 2017 eKLR, it was held that where trespass is proved, the affected party need not prove that he suffered any damage or loss in order to be entitled to an award of damages. The court is entitled to award what it considers to be reasonable damages as compensation. Each case will be determined on its own peculiar circumstances. But certainly, damages for trespass to land need not be specifically pleaded or proved as they are not in the nature of special damages. This court must therefore, and in accordance with the provisions of Section 78(2) of the Civil Procedure Act, make what it considers to be a reasonable award in general damages for the Respondent’s trespass on the suit land. Therefore, while the first limb of Order (c) of the trial magistrate’s judgment declining to award general damages for breach of contract is sound and will be up-held by the court, the second limb in which the trial magistrate declined to award general damages for trespass will be set aside. This court, in exercise of the powers bestowed upon it under Section 78 (1) and (2) of the Civil Procedure Act, finds it prudent to determine the matter finally and assess the general damages payable to the Appellant for the trespass. In doing so, I consider the circumstances in which the Respondent entered the suit land, what he has done on it and for how long. Doing the best I can, I would assess the general damages for trespass at Kshs. 150,000/-. 29.With regard to costs, the Appellant has only succeeded partially. I award him half costs both here and in the court below. 30.Ultimately therefore, and having considered this appeal, I make the following dispositive orders;1.The appeal partially succeeds. 2.Part of the Judgment ordering for specific performance of the sale agreement and directing the Respondent to complete the payment of the purchase price together with the 20% penalty and for the Appellant to assist in obtaining the relevant consent and transfer forms other payment is hereby set aside. 3.The Respondent shall within 60 days of this Judgment remove his structures from the suit land and give vacant possession to the Appellant. 4.The Appellant shall within 30 days of this Judgment refund to the Respondent the purchase price already received less 20%. 5.In default of (3) above, the Respondent shall be evicted from the suit land. Thereafter, the Respondent by himself, his servants, employees, agents and/or any other persons acting through him shall be permanently restrained from interfering with the Appellant’s occupation and possession of the suit land. 6.The Appellant is awarded Kshs. 150,000/- as general damages for trespass to the suit land. 7.The Respondent shall meet half the costs both here and in the lower court together with interest agreed or taxed. BOAZ N. OLAOJUDGE22ND MAY 2026JUDGMENT DATED, SIGNED AND DELIVERED BY WAY OF ELECTRONIC MAIL ON THIS 22ND DAY OF MAY 2026 AS WAS NOTIFIED TO THE PARTIES. RIGHT OF APPEAL.BOAZ N. OLAOJUDGE22ND MAY 2026