https://new.kenyalaw.org/akn/ke/judgment/keca/2026/910

Kilifi Plantation Ltd v Karimi (Civil Appeal E039 of 2023) [2026] KECA 910 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KECA 910 (KLR) Republic of Kenya In the Court of Appeal at Malindi Civil Appeal E039 of 2023 F Tuiyott, KI Laibuta & GW Ngenye-Macharia, JJA May 15, 2026 Between Kilifi Plantation Limited Appellant and James Karimi Respondent (Being an appeal from the Judgment and Decree of the Environment and Land Court at Malindi (M. A. Odeny, J.) delivered on 8th November 2022 in ELC No. 236 of 2017 Civil Suit 236 of 2017 ) Judgment 1.This is an appeal from the Judgement and decree of the Malindi Environment and Land Court (the ELC) (Odeny, J.) November 2022 in Malindi ELC No. 236 of 2017 in which the learned Judge allowed James Karimi’s (the respondent) suit, but dismissed Kilifi Plantation Limited’s (the appellant) counterclaim. 2.As a precis, the respondent commenced the suit before the ELC by a plaint dated 5th September 2017. The respondent’s case was that, on or about 29th September 2014, he entered into an agreement with the appellant for drilling and casing boreholes on the appellant’s property and, in lieu of monetary consideration, the appellant agreed to compensate the respondent through allocation of a portion of land whose purchase price was settled at Kshs.4,500,000. 3.The respondent averred that, on or about 29th September 2014, the appellant allocated him a portion of Kilifi/Group V/802 (the property) situated in Kilifi County, and that he thereafter commenced developments on the suit property; and that, about 15th March 2015, after construction of the main structures, he applied for supply of water to the property from the Kilifi Mariakani Water and Sewerage Company (KIMAWASCO) under application number DC 12344. 4.It was the respondent’s case that, in a turn of events, on or about 6th June 2016, he visited the property only to discover that the appellant had already allocated the suit property to a third party two years earlier before the allocation to him was done, and that there was a notice on the suit property to the effect that it was not for sale. 5.The respondent claimed that he suffered loss on account of the construction costs on the property, which he particularised as special damages as follows:A.Construction Costs:a.Site clearance and levelling – Kshs.500,000.b.Boundary wall – Kshs.694,050.c.Guest House – Kshs.1,995,000.d.Staff/Store Rooms – Kshs.580,800.e.Mani House – Kshs.1,566,000.f.Borehole – Kshs.250,000. Mains (sic) water connectiona.Perimeter Pipe – Kshs.200,000.b.Evacuation for water tank – Kshs.25,771. Total – Kshs.5,631,621.B.Allocation of another property valued atKshs.4,500,000. 6.The respondent contended that, even after acknowledging its mistake, the appellant refused to settle the matter amicably by paying the sum owed and allocating to him an alternative portion of land, thus filing of the suit was inevitable. The respondent asked the trial court to enter judgment in his favour against the appellant for:a.Kshs.5,631,621 on account of special damages;b.specific performance of the contract between the appellant and himself and, in the alternative, the allocation by the appellant to him of an alternative property valued at Kshs.4,500,000/=; andc.costs incidental to the suit and interest thereof at court rates. 7.In its amended defence and counterclaim dated 23rd July 2019, the appellant admitted that it entered into an agreement with the respondent for drilling and casing of boreholes, but that the same were to be properly constructed to the required standard. The appellant further admitted that the property was to be allocated to the respondent, and that it approved the application made by the respondent to be supplied with water to the suit property. However, the appellant denied knowledge of the ongoing construction, the special damages sought and the alleged loss suffered. The appellant stated that it offered to replace the property with another plot, being Kilifi/Group V/834 so as to settle the matter amicably, but that the appellant later changed his mind preferring to have the property agreed upon. 8.In the counterclaim, the appellant claimed that the agreement was for the respondent to drill five (5) boreholes in exchange for a portion of land valued at Kshs. 4,500,000; that the respondent did the drilling but that, in breach of the contract between the parties, when their functionality was later tested, it was found that they were either dry or malfunctioned. The appellant particularised the respondent’s breach of the agreement as follows:i.Poor workmanship, leading to poorly constructed boreholes.ii.Failure to install casing/screens at the bottom of the boreholes causing the boreholes to dry up.iii.Poor installation of casing/screens at the bottom of the boreholes causing the silt, sand and/or fine sand to enter the casing/screen which caused the boreholes to dry up.iv.Use of substandard materials causing the pumps to get stuck.v.Poor borehole construction causing some of the boreholes to cave in/collapse. 9.The appellant averred that, due to the poor workmanship, the boreholes were not fit for use as contemplated, and it prayed for judgment against the respondent as follows:i.A declaration that the respondent is not entitled to the order of specific performance of the contract and, in the alternative, the respondent is not entitled to the allocation of an alternative property valued at Kshs. 4,500,000/=.ii.Loss of user due to malfunctioning and drying up of the boreholes.iii.Loss of materials.iv.General damages for breach of contract.v.Costs and interest thereon at commercial rates.vi.Any other or further order fit to be granted in the circumstances. 10.In a rejoinder, the respondent filed a Reply to the appellant’s Amended Statement of Defence and Counterclaim dated 4th September 2020 by which he reiterated the contents of the claim. He also averred that he drilled the boreholes in accordance with the required standards; and that the appellant’s claim that the boreholes did not meet the required standards was due to its ignorance. He denied that he breached the terms of the agreement, and that the appellant was entitled to judgment under the counterclaim; and he thus prayed that the counterclaim be dismissed and judgment be entered in his favour as pleaded in the plaint. 11.The hearing proceeded by way of viva voce evidence. The respondent testified as PW1 and produced and adopted in evidence his written witness statement dated 5th September 2017 and the bundle of documents in the List of Documents of even date, which were marked as PEXH 1 - 5. The documents comprised: application number DC 12344 for connection of water from Mariakani Water and Sewerage Company (KIMAWASCO); demand letter dated 11th July 2016 from Kanyi & Company Advocates; Letter dated 21st July 2016 from Kilifi Plantations Limited; Valuation Report dated 20th May 2016 and photographs of the property. We note that we were not able to locate the respondent’s witness statement in the record as put to us. 12.On cross examination, the respondent stated that he and the appellant did not agree on the number of boreholes to be drilled; that the consideration for the work was in exchange of land, but that this was not fulfilled; that he was aware that there was a dispute in regards to the circumference and depth of the boreholes and the casings used, but that he did not have a report to dispute what was claimed; that, of his knowledge, the boreholes were functioning well; and that the agreement between the parties was not formalised. 13.On behalf of the appellant, DW1, Christopher Dennis Wilson, an Engineer and Director of the appellant, likewise adopted his witness statements dated 19th September 2018 two documents dated 27th respectively. He additionally produced June 2016 as DEX 1 – 2. In his statements, DW1 basically reiterated the appellant’s case in line with the amended defence and counterclaim for which reason we need not rehash it. 14.On cross - examination, he stated that he suggested that both parties do review the process of their engagement since each of them had made mistakes; that it was not the first time that the respondent had worked for the appellant; and that he did not have a written complaint on how the boreholes were dug. 15.DW2, Mang’ong’o Abdulahi Wacharo, a Hydrological Consultant and a retired Geologist, was instructed by the appellant to conduct an evaluation on the borehole drilling boreholes done by the respondent. In that regard, he produced a report dated 15th October 2018. The report gave an overview assessment of the functionality of the five boreholes already sank. 16.On cross-examination, DW2 stated that at the time of assessment, the five boreholes had different diameters; that a standard diameter of a borehole is 84 inches while the subject ones had 6 inches; that casings and screens that were put were less than the required diameters; that the boreholes had siltation, which meant that there was sand accumulating at the bottom and feeding into the boreholes, thus affecting the water levels; that screens are used to prevent any sand casting into the borehole; that the casing at the bottom should be closed to avoid sand silting at the bottom; and that this was not done. 17.Upon consideration of the pleadings, evidence and submissions, the learned Judge held that, indeed, the parties entered into an agreement by which the respondent was to drill boreholes in exchange for land; that, although the agreement was by word of mouth, the conduct of the appellant of allocating land to the respondent culminating in construction of structures, and the appellant approving connection of water into the property, was intended to constitute binding terms of the agreement; that DW2 confirmed that boreholes were sank; and that, for this reason, the respondent deserved to be paid for the work done. 18.As to whether the respondent was entitled to specific performance, the learned Judge held that the respondent complied with the agreement, but that the appellant reneged on its obligation of allocating the property to the respondent, which was the agreed mode of compensation for the work done. Consequently, the learned Judge found that the respondent proved the claim for special damages incurred through the valuation report and the photographs evidencing construction on the property. Judgment was accordingly entered for the respondent for special damages of Kshs.5,631,621 and costs of the suit. Conversely, the appellant’s counterclaim was dismissed with costs. 19.Dissatisfied with the Judgement of the trial court, the appellant filed the instant appeal which, by a Memorandum of Appeal dated 7th September 2023, raises the following seven (7) grounds of appeal:“i.That the learned Judge erred in law and in fact by failing to find that the respondent breached his contract by failing to provide proper workmanship under the circumstances.ii.That the learned Judge erred by failing to consider any of the compelling evidence adduced by the Appellant at the trial Court.ii.That the learned Judge erred by failing to find that despite all the circumstances that led to the present suit she dismissed the Appellant’s Counterclaim and granted the respondent special damages of Kshs.5,631,621 without the Respondent proving the same with receipts, but instead used a valuation report.ii.That the learned Judge erred in fact and in law by ordering specific performance of the agreement, a remedy not provided by the contract in issue.ii.That the learned Judge erred in law and in fact by finding that the appellant did not provide prima facie evidence to establish the circumstances giving rise to their loss of user due to poor workmanship by the respondent and proceeded on this basis to place a burden of proof on them instead of the Respondent as per the law required.ii.In further result, the learned Judge erred by disregarding and failing to take into account credible and reliable evidence presented by the Appellant.ii.All in all, the learned Judge so misdirected herself on matters of both Law and fact as to occasion a miscarriage of justice against the Appellant.” 20.The appellant prayed that: the appeal be allowed to the extent that the respondent’s claim be dismissed and the appellant’s counterclaim be allowed with costs and interest thereon; and that the costs of the appeal be granted to the appellant. 21.At the hearing of this appeal on 15th October 2025, learned counsel Mr. Ole Kina appeared for the appellant while learned counsel Ms. Lucy Mwangi represented the respondent. Both counsel relied on the respective parties’ written submissions, which they did not wish to highlight. Those of the appellant are dated 22nd October 2024 while those of the respondent are dated 23rd October 2024. 22.The appellant submitted that the respondent was in breach of the terms of the contract as the drilled boreholes were found to be dry or malfunctioned, which amounted to poor workmanship, and that, therefore, he was not entitled to specific performance. Reliance was placed on the decision of the ELC in John Mark Wandolo vs. Paul Nganga Nage (2020) KEELC 3082 where it was held in part that, ‘…a plaintiff seeking specific performance must show that he has performed all the terms of the contract which he has undertaken to perform whether expressly or by implications and which ought to have been performed at date of the wit of action.’ 23.The appellant submitted that the respondent did not provide proof or receipts to prove that he incurred an expense of Kshs.5,631,621, which amount was pleaded as special Equity Bank Ltd vs. Gerald Wang’ombe Thuni (2015) KEHC 2474 (KLR); Okulu Gondi vs. South Nyanza Sugar Co. Ltd (2018) KEHC 8361 (KLR); and Provincial Insurance Co. E.A. Limited vs. Mordekai Mwanga Nandwa KSM CACA 179 of 1995 (UR) were cited for the proposition that special damages must be specifically pleaded and strictly proved; that the respondent did not provide any particular proof to assert that indeed the appellant was obligated to compensate him; and that, therefore, he was eligible for an award of special damages; that the respondent failed to prove his claim of special damages as required under Sections 107 and 109 of the Evidence Act and, in particular that he performed his obligations and was not in breach of the contract. 24.The appellant urged us to find merit in its Memorandum of Appeal, and accordingly allow the appeal as well as the counterclaim with costs and interest. 25.On his part, the respondent submitted that the appellant admitted that there was an agreement between him and the appellant for drilling and casing of boreholes worth Kshs.4,500,000 in exchange for the property, which the appellant allocated to the respondent; that the respondent performed his part of the bargain, but the appellant reneged on fulfilling its part; and that the appellant failed to prove the allegation of breach of contract on his part that he did not provide proper workmanship, which burden lay on it (the appellant) to prove that he did not fulfil his part of the agreement. In this regard, the respondent relied on Section 107 of the Evidence Act and the decisions of this Court in Pius Kimaiyo Langat vs. Co - operative Bank of Kenya Limited (2017) KECA 152 (KLR); and Ceneast Airlines Limited vs. Kenya Shell Limited (2000) eKLR to assert that the burden of proof lies on he who alleges, which the appellant failed to discharge. 26.It was also contended that the appellant failed to substantiate that the learned Judge shifted the burden of proof to it to proof that loss of use of the boreholes was due to poor workmanship; that, since it was the appellant who advanced the assertion of poor workmanship, the burden lay on it to proof the claim as provided under Section 107 of the Evidence Act and the decision in Ceneast Airlines Limited vs. Kenya Shell Limited (supra); and that, in this regard, the appellant failed to discharge the burden of proof in regard to the reliefs sought in the counterclaim, and that, therefore, its counterclaim was rightfully dismissed. 27.The respondent contended that the production of a valuation report in proof of special damages was consistent with the principles outlined in Kampala City Council vs Nakaye (1972) EA 446; Hahn vs. Singh (1985) KECA 129 (KLR); and G4S Security Services (K) Limited vs. Joseph Kamau & 468 others (2018) KECA 827 (KLR) where this Court accepted that special damages can be proved by way of valuation reports in the event that receipts are unavailable. 28.Relying on this Court’s decision in Gurdev Singh Birdi & Narinder Singh Ghatora vs. Abubakar Madhbuti (1997) KECA 400 (KLR), the respondent submitted that specific performance can be ordered where monetary compensation is not adequate, as provided for under Section 73 of the Law of Contract Act. To the respondent, the findings of the trial Judge were consistent with the legal principles governing breach of contract, and award of special damages and specific performance in our jurisdiction. The respondent thus urged us to uphold the judgement of the ELC in his favour and accordingly dismiss the appeal with costs. 29.We are mindful that the duty of this Court as a first appellate Court, as reiterated and set out in the renowned case of Selle & Another vs. Associated Motor Boat Co. Ltd & Others (1968) EA 123, is to reconsider the evidence adduced in the trial court, re-evaluate it, and draw our conclusion of facts and law. It is also trite law that we will only depart from the findings made by the trial court if they were not based on evidence on record, or if the trial court is shown to have acted on wrong principles of law as was held in Jabane vs. Olenja (1986) KECA 21 (KLR), or where the trial court’s discretion was exercised injudiciously as was held in Mbogo & another vs. Shah (1968) EA 93. 30.We have considered the record of appeal, the written submissions of both parties as well as the cited authorities. We have deduced that issues that fall for our determination are:a.whether the appellant breached the contract between itself and the respondent so as to warrant the award of Kshs.5,631,621 to the respondent; andb.if the answer to (a) above is in the affirmative, whether the claim of Kshs.5,631,621 was proved. 31.The appellant’s main contention is that the respondent was not entitled to the claim of Kshs.5,631,621 because he failed to drill five (5) boreholes to the required standard, and that, therefore, he was in breach of the terms of the contract which were, inter alia, that the payment for drilling of the boreholes was to be in exchange of a portion of the property valued at Kshs.4,500,000. 32.Admittedly, there was no formal contract of agreement between the parties on the drilling and casing of the boreholes. However, the letter dated 21st July 2016 from the appellant confirms that the parties entered into an agreement for borehole drilling and the afore-stated consideration. The letter stated in part as follows:‘…Initially we had agreed that you could obtain a plot from the ones available for a price of Kshs. 4.5 million in exchange for doing borehole drilling work as shown to you for that agreed value.’ 33.The appellant admitted at paragraph 4 of its amended defence and counterclaim and in a further witness statement dated 12th April 2019 that it allocated the respondent the suit property. 34.A thorough scrutiny of the letter dated 21st July 2016 does not explicitly state the number of boreholes that were to be drilled and the specifications of those boreholes in terms of the diameters and other functionalities. These demands from the appellant came too late in the day and were an affront to the original terms of the agreement. 35.It is trite law that a court cannot rewrite an agreement between the parties, neither can a party add or modify the terms of a contract through extrinsic evidence. It is only where the contract sought to be impeached based on fraud or it is alleged that it is contrary to public policy that courts will refuse to give effect to it. This Court in Collins vs. Ogango (2024) KECA 19 (KLR) echoed our sentiments by referring to English decisions as follows:“It is trite law that courts cannot re-write contracts for parties, neither can they imply terms that were not part of the contract. In the case of Rufale v Umon Manufacturing Co. (Ramsboltom) (1918) L.R 1KB 592, Scrutton L.J. held as follows:-‘The first thing is to see what the parties have expressed in the contract and then an implied term is not to be added because the court thinks it would have been reasonable to have inserted it in the contract.’Equally, in the case of Attorney General of Belize et al v Belize Telecom Ltd & Another (2009), 1WLR 1980 at page 1993, citing Lord Person in Trollope Colls Ltd v Northwest Metropolitan Regional Hospital Board (1973) I WLR 601 at 609, the court held as follows:-‘The court does not make a contract for the parties. The court will not even improve the contract which the parties have made for themselves. If the express terms are perfectly clear and [free] from ambiguity, there is no choice to be made between different meanings. The clear terms must be applied even if the court thinks some other terms could have been more suitable.” 36.This Court in Pius Kimaiyo Langat vs. Co-operative Bank of Kenya Ltd [2017] KECA 152 (KLR) held:“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.” 37.Further, in National Water Conservation vs. Jayne Kanini Mwanza, Civil Appeal No. 178 of 2014 (UR), this Court stated as follows:“The general principle, as we understand it, is that a fixed-term contract will terminate on the sunset date unless it is extended in terms stated in the contract. A court cannot rewrite the terms of a contract freely entered into between the parties. Once there is a written contract, the court will seek to give meaning to such contract giving ordinary meaning to its terms in determining any issue that may arise.” See also National Bank of Kenya Ltd vs. Pipeplastic Samkolit (K) Ltd & another (2001) KECA 362 (KLR). 38.Knowing its obligation in the contract, the appellant allocated the respondent the property, and the respondent took possession of it and commenced development thereon. The developments can be discerned from the photographs produced into evidence, including a permanent house. It is only when he applied for water connection to the suit property that he found out that the appellant had in fact sold the suit property to a third party about 2 years earlier. We understood the respondent’s claim to be recovery of the monies spent towards development of the suit property. 39.The respondent, in support of his claim, produced the valuation report dated 20th May 2015 which placed the expenses he utilised in developing the property at Kshs.5,631,621. The appellant did not rebut this report, but instead sought to challenge the workmanship done by the respondent through a report filed by Mr. Ocharo, a Geologist/Hydrogeologist. 40.We return to the contents of the terms of the agreement contained in the letter dated 21st July 2016. There is nothing to suggest that the respondent was under an obligation under the terms of the agreement to drill five boreholes as a pre- condition to the exchange for land. Instead, what the appellant expected the respondent to do was to drill three other boreholes in order to be allocated an alternative land. We then wonder what would have become of the developments already done by the respondent in the suit property. Was the respondent supposed to have ignored all that and develop another property afresh to his detriment? 41.The appellant argued that the respondent did not produce receipts to prove the claim of Kshs.5,631,621. The law on claims for special damages is that they should be specifically pleaded and strictly proved. All that the claimant is required to do is to produce evidence of the expenditure(s) incurred, which is not restricted to receipts. What amounts to strict proof depends on the circumstances of the case at hand. In Jackson K. Kiptoo vs. Attorney General (2009) KECA 455 (KLR), this Court held that:“The court is conscious that the degree of certainty and particularity of proof required depends on the circumstances and the nature of acts complained of.” 42.Similarly, in Hahn vs. Singh (supra), the Court of Appeal held as follows:“Special damages must not only be specifically claimed (pleaded) but also strictly proved…for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.” 43.In this instance, the respondent, in developing the property, did not expect that the appellant would renege on the terms of the engagement, neither would it have dawned on him that the appellant had sold the property to a third party. So that, he would have been keeping receipts in readiness for a lawsuit. Hence, the only way by which he would have proved the amounts expended in the development was by conducting a valuation. He accordingly produced the valuation report of a qualified valuer, which assessed the cost of developments undertaken on the property to be Kshs.5,631,621. Our analysis of the evidence leads us to the conclusion that the respondent proved the special damages of Kshs.5,631,621. 44.We need not therefore belabour on the fact that it is the appellant which breached the terms of the agreement. The appellant was the defaulting party and had therefore to shoulder the responsibility of failure on its part to fulfil its part of the bargain. Accordingly, it follows that its counterclaim stands dismissed. 45.In sum, we find that none of the grounds of appeal merit. The appeal is hereby dismissed with costs to the respondent. Accordingly, we uphold the entire Judgment of the Environment and Land Court at Malindi (Odeny, J.) dated and delivered on 8th November 2022.Orders accordingly. DATED AND DELIVERED AT MOMBASA THIS 15TH DAY OF MAY, 2026.F. TUIYOTT…………………............…..JUDGE OF APPEALDR. K. I. LAIBUTA CArb, FCIArb.…………………............…..JUDGE OF APPEALF. W. NGENYE-MACHARIA…………………............…..JUDGE OF APPEALI certify that this is the true copy of the originalSignedDEPUTY REGISTRAR