https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3565

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NANYUKI** **ELC APPEAL NO. E001 & E005 OF 2025** **ANTHONY MUTAHI KIMARU……..……………….……APPELLANT** **VERSUS** **ABDULLA HAKIM OMAR SALIM…………………….RESPONDENT** ***(Being an appeal from the judgement of Hon L. Mutai (CM) delivered at Nanyuki Law court on 28.5.2021 in CMCC No. 142 &143* *of 2018 )*** **JUDGMENT** Background 1. There are three related appeals before this court namely; - ELA 1 of 2025 emanating from Nanyuki CMELC 142 of 2018 -ELA 5 of 2025 emanating from CMCC 143 of 2018 Nanyuki -ELA 2 of 2025 emanating from Nanyuki CMCC 144 of 2018. 1. The disputes touch on land sale agreements whereby the appellant herein embarked on selling portions of his parcel No. L.R.10422/21, where the purchaser in appeal no 1 and 5 of 2025 was Abdulla Hakim Omar Salim, where as in Appeal No. 2 of 2025 the purchaser was Siba Kobe. The first two cases before the Magistrate’s court that is, CMCC 142 and 143 of 2018 were consolidated by consent before court on 4.3.2020. That being the case, I find it expedient to write one judgment in respect of the aforementioned 2 files, while the third file Appeal no 2 of 2025 will run independently. ***The case before the trial court*** 1. The respondent herein instituted the proceedings before the trial court through a plaint dated 2.7.2018 in the case CMCC 142 of 2025. He contended that vide a sale agreement dated 1.12.2014, the defendant, now the appellant sold to him portions of parcel PLOT NO.F ( a subdivision of L.R.NO. 10422/21) at the price of Ksh.1 800 000. That it was an express term of the agreement that the defendant was to deliver to the plaintiff all the completion documents of which the suit parcel was registered as L.R.NO.10422/88. However, in breach of the said agreement, the defendant sold the suit parcel to a third parties and offered to refund a sum of sh. 3, 290 000. 2. The plaintiff therefore sought for judgment against the defendant in the following terms; 3. **Payment of sh.4 000 000 being the current market value of parcel L.R.NO.10422/88** 4. **Interest on (a) above at court rates from date of demand of payment.** 5. **Any other relief** 6. **Costs of the suit.** 7. The respondent filed an almost similar suit, CMCC 143 of 2025 on same date with a similar claim, the only difference being that the latter suit related to plot E which became parcel 10422/87. 8. The appellant/defendant opposed the two suit vide his statement of defence dated 7.8 .2018. He admits that indeed the parties had entered into the sale agreements, but contends that it is the plaintiff who breached the agreements by failing to pay the deposit as agreed, thus the defendant was under no obligation to deliver the completion documents. He avers that the plaintiff was only entitled to the deposit paid, which was refunded via cheques nos.077161, 077158 077159 and 077160 which were returned by the plaintiff. 9. At the trial, plaintiff’s evidence was taken in the file 142 of 2018 while that of defence was captured in the file 143 of 2018. The plaintiff, **Abdulhakim Omar** testified as Pw1.He adopted his witness statement dated 2.7.2018 as his evidence which mirrors his pleadings. He added that he paid sh.1 500 000 out of sh 1 800 000, where the balance of sh 300 000 was to be paid once the completion documents were availed. He avers that the defendant acknowledged receipt of the amounts. He availed supporting documents to his claim which included the sale agreement, the subdivision scheme, and a letter of 31.1.2018 from the defendant where the latter wanted to refund sh.3,290 000. Apparently, Pw1 had paid sh. 3 290 000 for two plots. He avers that he did a valuation where each plot was valued at ksh. 4 million. 10. On cross examination, Pw1 stated that he is not seeking for the transfer of the land into his name. He admits that the defendant had offered to refund all the monies he had paid. He avers that he did not pay the balance of sh.300 000 as the completion documents were not availed. He further avers that he bought 3 plots from the defendant of which one plot, no 4 was transferred to him, but he knows not as to why this transfer weas done. 11. In re-examination, Pw1 stated that the defendant signed the agreement in year 2016, and he was attempting to refund the monies in year 2018. 12. Pw2 was one Herbert Mwangi Kamau, a registered valuer. He avers that on 27.4.2018, he did the valuation for plot no. 4 which became 1042/87 after subdivision, whereby the vendor was in the process of subdividing a huge chunk of land. He produced the report thereof as an exhibit. He valued the plot at sh. 4 million. He also did valuation for parcel F which was also worth sh.4 million. 13. On cross examination, Pw2 stated that he did not have the title as at the time he did the valuation, what he had was an approved survey map. 14. The defendant, **Anthony Mutahi Kimaru** testified as Dw1. He adopted his witness statement dated 26.6.2019 as his evidence. He admits that indeed the two parties entered into the sale agreements of 1.12.2014 whereby the completion period was 90 days. He avers that the plaintiff breached the agreement from the onset by refusing to pay the deposit as agreed, thus the agreement became void ab initio on the expiry of the 90 days. That he tried to revive the agreement by requesting the plaintiff to pay the full purchase price, but he neglected to do so. That is what prompted him to write the letter of 30.1.2018 refunding a total sum of sh 3290 000 vide the cheques 077161, 077158, 077159 and 077160 for sh 822 500 each. 15. In cross examination, Dw1 stated that he sold three plots to the plaintiff, whereby he transferred one of the plots to the latter and it is therefore not a contested parcel. For the other two plots, Dw1 admitted that he indeed sold the same to the plaintiff vide the sale agreements of 1.12.2014, that he received some money from him but he could not recall the amounts. He still went on to state that the agreement indicates that he received sh 1500 000 for each plot, but he denied receiving the said amounts. 16. He further stated that he obtained completion documents within 90 days as per the agreement, then he asked the purchaser to deposit the balance but nothing happened. However, he has nothing to show that he informed the plaintiff that the documents were ready. He avers that he refunded the amounts, the same is still available. He was disputing the valuation report. 17. On re-examination, Dw1 stated that he is still willing to refund that sum of sh.3.29 million. He avers that the plaintiff did not pay the full purchase price, nor did he take possession of the suit plots. 18. The court delivered separate judgments in the two files on 28.5.2021, giving an award in each file to the plaintiff against the defendant as follows; The sum of sh. 1, 645 000 being the amount paid by the plaintiff and sh. 2, 355 000 being the loss of the bargain plus costs and interest from date of filling the suit till payment in full. ***The Appeal*** 1. Aggrieved by the aforesaid decision, the appellant filed the two appeals vide his Memorandum of Appeals dated 19.6.2021. They are similar in all aspects. He raises Grounds of Appeal summarized as follows; That the trial magistrate erred in law and fact in failing to find that the respondent was in breach of the agreement, that rescission was one of the remedies available to the parties, failing to find that the subject matter of the suit was not ascertainable thus the contract for sale was not enforceable, finding that the respondent was entitled to damages for loss of bargain and in re-writing the contract for the parties. 2. The appellant therefore prays that the appeal be allowed, the judgment of the lower court be set aside and the suit therein be dismissed with costs. 3. The appeal was heard by way of written submissions. The submissions of the appellant are dated 13.3.2024. He contends that there is no evidence to equate the suit plots to parcel 10422/88 and 10472/87 as no surveyors report was availed to that effect. There is even no proof that parcel 10422/88 and 87 were subdivisions of parcel 10422/21, thus as at the time of the sale, the suit plot could not be ascertained, adding that the land was only transferred to the appellant in year 2016.He relies on several authorities including David Sironga Ole Tukai v Francis Arap Muge and Others (2014) eKLR to buttress the point that consent from Land Control Board was required and it was not obtained, thus the transaction was void. He also casts aspersions on the valuation reports averring that no search was availed for the suit plots. 4. He reiterates that the trial court erred in not finding that rescission was one of the remedies available. He contends that having been in default of the agreement, the plaintiff was only entitled to a refund. 5. The submissions of the respondent are dated 25.6.2024. He avers that the record of appeal as compiled is not proper, for instance, the defence evidence is in appeal no. HCCC 9 OF 2021 at pages 202 to 206. 6. It is argued that the issue of the Land Control Board did not feature in the agreement, thus the consent thereof was not one of the completion documents. Further, the appellant did not call a valuer or a surveyor to contradict the evidence of pw2, adding that the appellant should not adduce evidence in the appeal. 7. The respondent avers that the appellant could not argue that there was no agreement capable of being enforced after the completion dated of 90 days, since he was rescinding the agreement two years after the agreement was made on 1.12.2014. He avers that the agreement did not make a provision that after the 90 days, the parties were discharged from their obligations. The respondent relies on the case of Johnson Evan Gicheru v Andrew Morton & Another amongst other cases. 8. I have considered the trial court’s record, the grounds of appeal and the rival submissions. This being a first appeal, the court reminds itself of its primary role as a first appellate court namely, to re-evaluate, re-assess and re-analyse the evidence and then determine whether the conclusions reached by the learned magistrate are to stand and give reasons either way as was pronounced in; **Selle and Another Versus Associated Motor Boat Company Ltd & Others [1968] Ea 123, Abok James Odera t/a A.J Odera & Associates Vs John Patrick Machira t/a Machira & Co. Advocates (2013) eKLR.** 9. From the onset, it is crystal clear that the filing of two suits separately was un necessary as this had the effect of convoluting the proceedings. This is because, the dispute concerning the plots E & F related to a similar cause of action between the same parties whereby the respondent herein was purchasing the two plots from the appellant. The two parcels were identified as being portions of the subdivision of the larger parcel 10422/21. The agreements were made on the same date of 1.12.2018 and the claims in the two plots are similar. 10. The two appeal files had initially detoured to the high court where they were registered as HCCA NO 8 and 9 of 2021, but were eventually transferred to this court vide the High court judgment of 28.2.2025 as the dispute relates to land. 11. The question falling for determination is whether the trial courts judgment of 28.5.2021 should be disturbed. The answer lies in the agreements of 1.12.2014 which are admitted by both parties. In the Court of Appeal case of **Pius Kimaiyo Langat v Co-operative Bank of Kenya Limited [2017] eKLR**, it was stated thus; **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. See National Bank of Kenya Ltd vs Pipeplastic Samkolit (K) Ltd [2002]2 EA 503. The primary task of the court is to construe the contract and any terms implied in it.”** 28. The crucial clauses in the agreements reads as follows; **“ 1. The property sold is the subdivision of land Reference Number 10422/21 marked as parcel number E/F (measuring 0.073 hectares for E and 0.07 hectares for F) and edged red on the attached proposed sub-divisional plan which shall be read with and form part of this agreement.** **2. The purchase price is the sum of Kenya shillings one million eight hundred thousand (Kshs 1,800,000/=) which shall be paid to the vendor by the purchaser in the following manner:-** 1. **Kenya shillings one million five hundred thousand (Ksh 1,500,000/=) on or before execution hereof (receipt is hereby acknowledged by the vendor)** 2. **Balance of Kenya shillings three hundred thousand (Ksh 300,000/=) on the completion date** **3. The completion date shall be ninety (90) days of the date of this agreement.** **4. The property is sold with vacant possession which possession shall be delivered to the purchaser on the completion date.** **5. The sale is subject to the Law Society conditions of sale as currently subsisting in so far as they are not inconsistent with the conditions contained in this agreement.** **SPECIAL CONDITIONS** **1. The vendor shall on or before the completion date deliver to the purchaser the following in respect of the property:-** 1. **A duly signed Transfer of the Property in favour of the purchaser;** 2. **Original Deed Plan or Registered Mutation form whichever shall be applicable;** 3. **A valid rates clearance certificate,** 4. **A valid Land Rent Clearance certificate;** 5. **A signed Stamp Duty Valuation form;** 6. **Copies of the vendor’s P.I.N. Certificate and National Identity Card;** 7. **Three coloured passport size photographs of the vendor;** **And the purchaser shall pay to the vendor the balance of the purchase price.** **2. The appropriate share of Rates and Land Rent shall be apportioned between the parties as at the date of possession by the purchaser.** **3. Time shall be deemed to be of the essence of the contract for all purposes of this agreement.”** 29. From the above terms of the agreement, nowhere is the issue of the consent from the land control board factored in. However, assuming that the said consent became necessary for the transaction, what then was so difficult on the part of the appellant in reaching out to the respondent so as to revise the agreement and factor in the issue of the land control board. What more, there is not the slightest evidence from the appellant to indicate that he raised this issue post the execution of the agreement. 30. The reason as to why the appellant purported to rescind the agreement was apparently because the full purchase price was not paid by the respondent. However, the balance of sh.300 000 on each plot was to be paid upon the delivery of the completion documents. Nowhere in his evidence has the appellant stated that he indeed delivered the completion documents. During cross examination, Dw1 stated that *; “ I was to obtain completion documents within 90 days which I did and I asked the purchaser to deposit the balance but nothing happened*”. He further stated that; *“ I have nothing to show that I informed plaintiff that the documents are ready”.* 31. This far, it becomes clear that the appellant is the one who was in breach of the agreement and he had no justification at all to rescind the same. 32. On payments, the agreements captures that the appellant acknowledged the receipt of sh 1 500 000 as at the time the agreements were executed for each plot. It was therefore dishonest of the appellant to state in his witness statement that “ *the plaintiff breached the agreement from the onset by refusing to pay full deposit as agreed”*. It is clear beyond peradventure that the appellant was blowing hot and cold during the land sale transactions, which conduct he manifested even during the trial where in cross examination, he was admitting having received some monies from the respondent, but he could not recall the amount. I pose the same questions put forth by the trial court in its judgment as follows; Why did the appellant embark on refunding a tidy sum of Sh 3, 290 000 if this amount had not been paid by the respondent? The logical conclusion to make is that the appellant is a dishonest person who tried to wriggle out of the transaction unilaterally. 33. The amount awarded by the trial court as sh 1, 645 000 for each plot as restitution adds up to the sum of sh 3 290 000 which the appellant had embarked on refunding. I find no reason to disturb this figure. 34. On the claim for loss of the bargain, I find that the same was factored in at prayer (a) in the plaint. Thus even as the appellant was filing his defence, he was well aware that the respondent was claiming the market value of the plots. To this end, the respondent availed valuation reports for the plots which put the value at sh.4,00000 for each plot. During cross examination, Dw1 simply stated that he was disputing the valuation report, but he availed none to buttress his claim. It follows that the trial court rightly arrived at the figure of Sh 2, 355 000 which is the balance after subtracting Sh 1 645 000 from sh 4 000 000. 35. On costs and interests, I have already pointed out that the filing of two suits was unnecessary and uncalled for, hence costs and interests should accrue in only one file, that is **Appeal no E001 of 2025** and in **CMCC 142 OF 2018**. 36. In the end, I find no good reasons to disturb the judgment of the trial court in both CMCC 142 OF 2018 and 143 of 2018 save that the award on costs in the latter file is set aside. Similarly in this appeal, costs are hereby awarded in file no. E001 OF 2025. **DATED, SIGNED AND DELIVERED AT NANYUKI THIS 10TH DAY OF JUNE 2026 THROUGH MICROSOFT TEAMS.** **LUCY N. MBUGUA** **JUDGE** **In the presence of:** **C/A – Nancy Mwangi** **Muthoni for the Respondent**