https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3050

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIVASHA** **ELC APPEAL CASE NO. E010 OF 2025** **DAVID MACHARIA KINYURU………..…….………………………..……APPELLANT** **VERSUS** **JANE WAIRIMU KIMUNYA…………….……………….…………….…RESPONDENT** *(Being an appeal arising from the judgement of Hon. E. Kelly-PM delivered on 10th June 2025 Naivasha MCELC No. E068 of 2024)* **BETWEEN** **DAVID MACHARIA KINYURU………..…….…………………………..…APPELLANT** **VERSUS** **JANE WAIRIMU KIMUNYA…………….……………….…………….…RESPONDENT** **JUDGEMENT.** 1. Coming up for determination on Appeal is a matter which was heard and determined by Hon. E. Kelly, Principal Magistrate in MCELC No. E068 of 2024wherein, upon considering the evidence of both parties, vide her Judgement delivered on 10th June, 2025, the Trial Court dismissed the Plaintiff’s suit in favour of the Defendant. 2. The Plaintiff /Appellant, being dissatisfied with the said Judgement, has now filed the present Appeal based on the following grounds in his Memorandum of Appeal: * 1. That the learned Magistrate erred in law and in fact in holding that the sale agreement dated 5th February, 2019, was invalid for failure to be executed by the Defendant herein, yet the said agreement had been duly executed by the Defendant by her indicating her full name as her signature and which fact she also confirmed during her testimony as DW-1. She confirmed having travelled from Nairobi to Gilgil, where she executed the sale agreement on 5th February 2019, before Tunza Commercial Agencies, and the said sale agreement was further witnessed as required by law. 2. That the learned Magistrate erred in law and in fact in holding that the sale agreement dated 5th February, 2019 was invalid but not void and then went ahead to interpret it in favour of the Defendant including claiming that the Plaintiff was in breach of an invalid contract contrary to the law of contract since an invalid contract and noting the same relates to land would be invalid *ab initio* and unenforceable under the law. The Plaintiff would not be in breach of an invalid agreement and in any case, if the same was not executed by the Defendant as claimed then the Defendant cannot rely on the said agreement or even claim that the other party breached it. It would be invalid and thus unenforceable. 3. That the learned Magistrate erred in law and in fact in rewriting the sale agreement dated 5th February, 2019 and imposing her own terms of the agreement and in particular that it had been agreed that the Defendant shall execute the agreement later at the time of payment of the balance of the purchase price and in so doing rewrote the terms of clause 1 of the agreement which is expressly clear that execution occurred on 5th February 2019 together with the payment of the deposit of Ksh. 2,000,000/= and which rewriting of the agreement the law abhors. 4. That the learned Magistrate erred in law and in fact in interpreting clause 1 of the sale agreement dated 5th February, 2019 and which expressly stated that the deposit of Ksh. 2,000,000/= was paid by the purchaser at the time of execution of the agreement, which was on 5th February 2019, and both parties have confirmed payment of Ksh. 2,000,000/= then that averment confirmed execution of the agreement by them and the Defendant was thus estopped from turning around and claiming that she had not executed the sale agreement dated 5th February 2019. 5. That the learned Magistrate erred in law and in fact in rewriting the sale agreement dated 5th February, 2019 contrary to the celebrated trite law that it is not the business of courts to rewrite contracts and even went ahead to claim that the sale agreement dated 5th February, 2019 was incomplete for failure to include the detail on manner and mode of completion of the agreement by the parties. This clearly shows that the learned Magistrate was desperately attempting to rewrite the contract and which act the law abhors. It was not the business of the court to claim that the contract was incomplete and so as to put blame on the Plaintiff since it was not denied that the balance of the purchase price which was to be paid on or before 4th May, 2019 was never paid. 6. That the learned Magistrate erred in law and in fact in relying on her own assumptions and theories which were never proved and in so doing put the full blame on the Plaintiff claiming he failed to reach out to the Defendant to pay the balance of the purchase price and yet as per the terms of the sale agreement dated 5th February, 2019 there was no obligation imposed on the Plaintiff to reach out to the Defendant to pay the balance of the purchase price. Again, the court was rewriting the sale agreement dated 5th February 2019 and imposing new obligations on the Plaintiff yet the court is only required to interpret the agreement and not to introduce new obligations and/or terms. 7. That the learned Magistrate erred in law and in fact in totally ignoring the fact that the Defendant had breached the express terms of Clause 1 of the sale agreement dated 5th February 2019 which had in black and white stated that the balance of the purchase price was to be paid on or before 4th May, 2019 and which balance of purchase price had never been paid to date. 8. That the learned Magistrate erred in law and in fact by failing to remain impartial and clearly showed biasness in her interpretation of the evidence made by the parties and where she totally ignored averments made by the Plaintiff while on the other hand relying on every allegation made by the Defendant as the gospel truth including the unproved claim that the suit property had been resold and which claim the Plaintiff vehemently denied and confirmed to court that he had never resold the property to anyone else. This claim of the property having been resold was never supported by any evidence but the court seem to have relied on the oral testimony by DW-1 and relied upon it to slam the oral evidence by the Plaintiff contrary to the provisions of the Evidence Act. 9. That the learned Magistrate erred in law and in fact in being bias in her interpretation of the agreement, the circumstances of the case and even went ahead to show open biasness by claiming that the Plaintiff filing the instant suit was a clear indication of lack of good will and that the same adds credence to the claim that he may have resold the suit property and that is why he had not sought for the prayer of specific performance. All those biased theories and assumptions by the court only goes to show that she was not impartial but rather was openly biased as against the Plaintiff and in so doing arrived at a judgement unsupported by evidence. 10. That the learned Magistrate erred in law and in fact in awarding substantive prayers in favour of the Defendant as against the Plaintiff yet the Defendant had not filed any counterclaim as against the Plaintiff to warrant issuance of substantive orders as against the Plaintiff. With no counterclaim, then the orders granted as against the Plaintiff were issued in a vacuum and were clearly unsupported by pleadings as required under the Civil Procedure Rules and Civil Procedure Code. 11. That the learned Magistrate erred in law and in fact in awarding substantive prayers in favour of the Defendant as against the Plaintiff yet the Defendant had not filed any counterclaim and in so doing breached the Plaintiff’s right to fair trial since he was denied an opportunity to lodge his defence as against the said substantive orders which can only issue in case a counterclaim has been filed against him. In the instance case, no counterclaim was filed and as such no substantive orders can issue as against the Plaintiff. 12. That the learned Magistrate erred in law and in fact in treating the Defendant’s written statement of defence as a counterclaim and went ahead to grant substantive orders which can only issue in case where there is a counterclaim. The court failed to appreciate the trite law that parties are bound by their pleadings and where there is no counterclaim then no substantive orders can issue as against the Plaintiff. 13. That the learned Magistrate erred in law and misdirected her mind in not appreciating that there was a valid sale agreement dated 5th February 2019 and which the Defendant had expressly breached by failing to pay the balance of the purchase price on or before 4th May, 2019 and it was now over 6 years down the line and the Plaintiff was thus entitled to file the instant suit so as to have the transaction completed either way and if the Defendant was interested in having the transaction completed in her favour then she ought to have deposited the balance of the purchase price together with liquidated damages for breach of contract as per clause 9 of the agreement and to lodge a counterclaim seeking to have the transaction completed. 14. That the learned Magistrate erred in law and in fact in purporting to put into perspective materials and facts not contained in the pleadings, evidence and submissions of parties. 15. That the learned Magistrate erred in law and in fact in failing to make a finding that the Plaintiff had proved his case on a balance of probability considering the overwhelming evidence adduced by the Plaintiff in support of his case and where it is apparently clear that the Defendant was to pay the balance of purchase price on or before 4th May, 2019 and which he did not pay. The Defendant was thus in breach of an express term of the agreement and as per clause 9 of the aforesaid agreement then the Plaintiff was to deduct the same from the deposit paid and to refund the balance and to have the sale agreement effectively deemed revoked and/or rescinded. 16. That the learned Magistrate erred in law and in fact in failing to consider the evidence on record, the Plaintiff’s submissions and the circumstances of the case prior to making her findings. 17. The findings of the trial Magistrate are totally unsupported in law and by the evidence on record. 3. The Appellant thus prayed for the following orders: * 1. That the instant appeal be allowed. 2. The whole of the decision and/or judgement of Honourable E. Kelly delivered on 10th June 2024 **(sic)** in Naivasha MCELC NO. E068 of 2024 be set aside and/or varied, and in its place a judgement be entered in favour of the Plaintiff now Appellant herein, as sought in the Plaint dated 2nd August, 2024, in light of overwhelming evidence in support of the Plaintiff’s case. 3. That the costs of the appeal, as well as the costs of the suit in the lower court, be borne by the Respondent. 4. The Appeal was admitted for hearing on 20th January 2026, and directions were issued that it be disposed of by way of written submissions. Parties complied and filed submissions, which I shall summarise as hereinunder. **Appellant’s Submissions.** 1. The Appellant structured his submissions dated 10th February 2026, according to the following issues framed for determination, which were: 2. Whether the sale agreement dated 5th February, 2019, was validly executed, the Defendant having signed using her full name, with such execution confirmed in testimony and duly witnessed. 3. Whether the Respondent breached the sale agreement dated 5th February, 2019 by failing to pay the balance of the purchase price as agreed, and the legal consequences arising therefrom. 4. Whether the trial Court erred in law and in fact by rewriting the terms of the sale agreement, imposing obligations not pleaded by the parties, and consequently finding the Plaintiff in breach of a contract it simultaneously treated as invalid *ab initio*. 5. Whether the trial court erred in law by finding the Appellant in breach of a contract it simultaneously treated as invalid *ab initio.* 6. Whether the grant of substantive reliefs against the Plaintiff in the absence of a counterclaim was improper in law and violated settled rules on pleadings, procedural fairness, and the Plaintiff’s right to a fair trial. 7. The Appellant laid a factual & legal background of his Appeal wherein heasserted that the case presents a profound legal paradox where the trial court permitted a party who failed to pay an agreed purchase price for over six years, to invoke judicial intervention to declare the contract invalid. Compounding this error, the trial court used the phantom of that supposedly invalid contract to penalise the vendor (the Appellant) with damages. The Appellant argues that this fundamentally undermined the doctrine of the sanctity of contracts freely entered into. 8. On the first issue for determination, the Appellant submitted that the trial Magistrate erred in law and fact by declaring the sale agreement dated 5th February 2019 invalid for want of execution. That in law, a signature was not limited to a rigid, technical mark but encompassed any name or writing affixed *animo attestandi* (with the intention to be bound). By writing her full name in her own hand under the execution clause (Signed by the said purchaser), the Respondent had legally signed and adopted the agreement. 9. Clause 1 of the agreement had stated that the deposit of Kshs. 2,000,000/= was paid ‘’today......at execution hereof.’’ A plain, purposive interpretation confirmed that execution and deposit payment occurred simultaneously on 5th February 2019. The trial court's finding that execution was deferred until full payment was, therefore, a complete misdirection. 10. Relying on the doctrine of Estoppel,the Appellant submitted that theRespondent had explicitly admitted in her pleadings and oral testimony that the handwritten names were hers, and she partially performed the contract by paying the substantial deposit. Having acknowledged the contract and acted upon it, she was legally estopped from denying the validity of her own signature. 11. Citing the case of **Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123,** the Appellant reminded the first appellate Court of its duty to independently re-evaluate the evidentiary record and draw its own conclusions rather than blindly accepting the trial court's flawed findings. 12. On the second and third issues for determination, theAppellant submitted that the contract explicitly required the Respondent to pay the remaining balance of Kshs. 2,400,000/= on or before 4th May 2019, but she failed to comply and did not deny this non-payment. Her default was therefore an admitted fact by omission. 13. Relying on the decision in the case of **Thrift Homes Ltd v Kenya Investment Ltd [2015] eKLR,** the Appellant established that when a purchaser defaults on a time-bound payment, the vendor is completely discharged from further contractual performance. The Appellant had no legal obligation to prompt, remind, or facilitate the Respondent's payment. 14. He also relied on the decisions in **(Civil Appeal E010 of 2024) [2025] KEHC 3875 (KLR), Lapera Company Limited & 2 Others (Environmental & Land Case 42 of 2018) [2024] KEELC 61 (KLR) and Pius Kimaiyo Langat vs Co-operative Bank of Kenya Ltd (2017) eKLR** to argue that courts cannot venture outside the four corners of a self-contained written agreement. The trial Magistrate impermissibly reconfigured the contract by inventing a non-existent, affirmative ‘’duty of solicitation’’ or ‘’follow-up’’ on the part of the Appellant. 15. On the fourth issue for determination, the Appellanthighlighted an irreconcilable contradiction in the trial court's judgment to the effect that the trial Magistrate treated the contract as invalid *ab initio* (from the beginning), yet simultaneously found the Appellant in breach of it. He submitted that a finding of contractual breach legally presupposed the existence of a valid, enforceable contract, and that it was a legal impossibility to breach a contract that the court deemed non-existent. Furthermore, the trial court's judgment failed to identify which specific act or omission by the Appellant constituted the alleged breach, rendering the finding entirely untenable. 16. On the fifth issue for determination, theAppellant argued that the trial court's award of damages represented a severe procedural irregularity that violated his constitutional right to a fair trial. A court could only grant reliefs that have been specifically pleaded and prayed for, as was held in the case of **Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others [2014] eKLR.** Despite theRespondent not having filed a properly drawn counterclaim, she instead embedded a claim in her defence, requesting Kshs. 480,000/= (20% of the *balance* of the purchase price). wherein the trial Magistrate acted *per incuriam* (through lack of care) by descending into the arena of litigation and awarding the Respondent Kshs. 880,000/= (20% of the *total* purchase price), nearly double what the Respondent had actually requested. That this massive financial relief was never formally pleaded, the Appellant was never put on notice and was completely denied the opportunity to respond, lead evidence, or submit arguments against it. 17. The Appellant urged the Honourable Court to allow the appeal, set aside the trial court's judgment and all reliefs granted therein in their entirety, and enter judgment in his favour. **Respondent’s Submissions.** 1. On the other hand, in her submissions dated 18th January 2026, the Respondent summarised the factual background of the matter and listed her issues for resolution as follows: 2. Whether the Appellant has come before the Honourable Court with clean hands. 3. Whether the breaches in the Land Transaction were occasioned by the Appellant. 4. Whether the Respondent put adequate effort into trying to complete the land transaction. 5. On the first issue for determination as to whether the Appellant had approached the Court with Clean Hands, the Respondent submitted that, based on the equitable maxim, ‘’he who comes to court must do so with clean hands,’’ a party seeking judicial relief must act fairly, honestly, and in good faith. The Appellant had failed this test due to non-compliance with a court order. 6. She went on to submit that on 21st November 2025, (sic) the trial court granted the Appellant a stay of execution on the express condition that he deposits the decretal amount into court within 30 days, wherein he did not comply and therefore, the Court records verify that the Appellant has never deposited this money. The Respondent argues that because the Appellant had flagrantly disregarded active court directions, the Honourable Court should refuse to entertain his appeal. 7. On the second issue for determination on whether the breaches in the land transaction were occasioned by the Appellant, the Respondent contended that the Appellant's claims were false because all contractual failures stemmed directly from his (Appellant's) own acts of omission and commission, wherein, despite the agreement features having a dotted line explicitly meant for the Respondent’s signature, her name was simply handwritten on the document, not signed or initiated. Secondly, under Clause 1, the balance of Kshs. 2,400,000/= was to be paid on or before 4th May 2019 at execution of the contract, meaning that the final execution was legally deferred to a later date. Further, whereas Clause 11 contained clear signatures for the Appellant and his witness, the same was completely devoid of the Respondent's signature. 8. She relied on the provisions ofSection 3(3) of the Law of Contract Act to submit that the same was mandatory, and required contracts for the disposition of land to be signed by both parties. Relying on the decision in **James Njuguna Mwaura v Paul Wandati Mbochi [2018] KEELC 1184 (KLR),** the Respondent’s contention was that writing a name was not a signature and therefore the trial court was correct to declare the agreement invalid. She also submitted that the Appellant offered no evidence at trial that he had attempted to contact the Respondent to secure her signature, or that she had refused to sign. 9. It was her submission that it wasan undisputed fact that the Appellant’s advocates drafted the agreement. Under the principle of contractual interpretation, any ambiguity was to be construed strictly against the drafter. The Appellant’s legal team had negligently omitted fundamental clauses mandated by the Law Society of Kenya (LSK) from the Conditions of Sale, failing to specify where or how the purchase balance should be paid, thus creating fatal ambiguity. They had also completely omitted a completion date, venue, or mechanism, and the requirement to issue a statutory notice before terminating the contract. 10. She thus supported thetrial court’s finding that the Appellant intentionally drafted a vague, incomplete contract merely to pocket her (Respondent's) money, amounting to Kshs. 2,000,000/= as a deposit with no real intention of transferring the property. Citing the case in **South Nyanza Sugar Company Ltd v Leonard O. Arera [2020] KEHC 4648 (KLR),** she reminded the court that it cannot rewrite a contract to rescue the Appellant from his own drafting errors. 11. On the third issue for determination, whether the Respondent put Adequate Effort into completing the Transaction,she maintained that she was highly vigilant, not indolent, regarding her contractual duties. That she had travelled to meet the Appellant, paid a substantial deposit of Kshs. 2,000,000/=, and made all reasonable attempts to move the transaction forward. This evidence, at trial, went entirely unchallenged by the Appellant during cross-examination, who even failed to produce a single piece of documentation demonstrating any proactive steps he took to complete the land transfer. 12. Finally, the Respondent requested the Honourable Court to dismiss the appeal with costs, uphold the trial court's judgment and enter judgement in her favour against the Appellant and: * 1. Uphold the judgement of the Trial Court; 2. Declare that the Appellant is in breach of the Sale Agreement dated 5th February 2019; 3. Dismiss the Appellant’s Appeal with costs to the Respondent; 4. Orders the Appellant to pay the Respondent 20% of the purchase price for his breach of contract (20/100\* 4,400,000) = Kshs. 880,000/= 5. Orders the Appellant to reimburse the Respondent her initial deposit of Kshs. 2,000,000/=; in addition to the 20% above (2,000,000 + 880,000= Kshs. 2,880,000/=); 6. Orders the Appellant to pay interests in (ii), (iv) and (v) above; 7. Grants the Respondent any other relief that the Honourable Court deems fit and just to grant. **Analyses of the evidence.** 1. The Court of Appeal in **Paramount Bank Limited vs. First National Bank Limited & 2 Others (Civil Appeal 468 of 2018) [2023] KECA 1424 (KLR)** where the court held as follows; *“A first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. A first Appellate Court is the final court of fact ordinarily and therefore a litigant is entitled to a full, fair, and independent consideration of the evidence at the appellate stage. Anything less is unjust. The first appeal has to be decided on facts as well as on law. While considering the scope of section 78 of the Civil Procedure Act, a first Appellate Court can appreciate the entire evidence and come to a different conclusion.”* 1. The summary of the core dispute is that David Macharia Kinyuru, the Plaintiff/Appellant herein, instituted a suit against Jane Wairimu Kimunya, the Defendant/Respondent herein, in Naivasha MCELC No. E068 of 2024, vide a Plaint dated 2nd August, 2024, wherein he sought the following orders; * 1. A declaration that the Defendant is in breach of the agreement dated 5th February, 2019 and the Plaintiff has no legal obligation to complete the sale of the parcel of land Gilgil/Gilgil Block 1/5341 (Kekopey). 2. An order lifting the caution placed against LR Gilgil/Gilgil Block 1/5341 (Kekopey)by the Defendant on 22nd February, 2023. 3. Cost of the suit. 2. Subsequent to the filing of the suit, the Defendant/Respondent filed her Statement of Defence dated 18th August, 2024, denying the contents of the Plaint and putting the Plaintiff to strict proof. She explained that the parties had entered into a land sale agreement for land parcel No. Gilgil/Gilgil Block 1/5341 (Kekopey), under which she had paid the Plaintiff a sum of Kshs. 2,000,000/= in cash at the bank where he has an account. She was to pay a balance of Kshs. 2,400,000/= upon her execution of the Sale Agreement, which money was to be deposited in the Plaintiff’s Bank Account details, which the Plaintiff was to provide in the Sale Agreement/Contract, and which he did not, thus she was unable to pay the said balance of the purchase price and execute the Sale Agreement. 3. She denied having committed any contractual breaches, since she had on numerous occasions called the Plaintiff to enquire when she should execute the Sale Agreement/Contract and to request that he send his bank account details to enable her to pay the balance of the purchase price. That, indeed, she had incurred additional costs by instructing the firm of Ongegu & Associate Advocates to follow up on the said payment issues with the Plaintiff. 4. The COVID-19 pandemic further complicated the issues, as during that period, she was unable to contact the Plaintiff completely. That notwithstanding, during the pendency of payment of the balance of the purchase price, the Plaintiff herein was to fulfil certain conditions and obligations under the agreement which included, handing over the title deed for the said land, together with all necessary transfer documents, including the application for consent of the Land Control Board, duly signed transfer forms, and the Plaintiff’s PIN certificate, to facilitate the transfer of the property into the Defendant’s name. (Under clause 6) 5. The Plaintiff did not hand over the said documents or make any effort to locate her for the purpose of handing over the same. In any event, the agreement included an implied term or condition that the completion of the sale was subject to various conditions, including but not limited to the transfer of a clear and unencumbered title to the Defendant, which was never done by the Plaintiff. 6. That, due to the Plaintiff’s failure to provide the requisite documents and to communicate their availability, the Defendant was unable to complete payment of the balance of the purchase price of the land. She contended that the Plaintiff’s failure to fulfil their obligation under the agreement constituted a breach of contract and a delay in payment of the balance of the purchase price. That, unfortunately, even after the COVID-19 restrictions had been lifted, she was still unable to get hold of the Plaintiff. She, however, visited the suit property on or around January 2023, wherein she had found the Plaintiff undertaking development therein. 7. That upon inquiring, the Plaintiff informed her that he had sold the suit property to his cousin for Kshs. 8,000,000/= and that if she was offended, she should either proceed and report the matter to the police station, or agree to be sold another property for Kshs. 1,500,000/= and reimburse her the balance of Kshs. 500,000/=. 8. Subsequently, she lodged a caution on the suit property to protect their interests, pending the resolution of the issues. 9. She refuted that at no point had she or the Land Registrar Naivasha Land Registry frustrated the Plaintiff from enjoying his property, and neither had he contacted her to remove the caution. She also denied having breached the terms of the Sale Agreement; on the contrary, she had undertaken all necessary steps to ensure that the entire agreement was completed to finality, thus she was not indolent. 10. The Plaintiff, on the other hand, had not taken any steps to fulfil the terms of their Sale Agreement. That was indolent, and his actions were reckless and careless; thus, the Honourable Court should not allow him to benefit from being indolent. 11. She had thus prayed that the Honourable Court: * 1. Dismiss the Plaintiff’s Plaint/suit with costs to the Defendant. 2. Declare that the Plaintiff is in breach of the sale agreement dated 5th February 2019. 3. Order the Plaintiff to pay the Defendant 20% of the purchase price for his breach of contract (20/100 X 4,400,000) = Kshs. 480,000/=. 4. Order the Plaintiff to reimburse the Defendant her initial deposit of Kshs. 2,000,000/=. 5. Orders the Plaintiff to pay interests in (iii) and (iv) above. 6. Grant the Defendant any other relief that the Honourable Court deemed fit and just to grant. 12. In a rejoinder, the Plaintiff reiterated the contents of his claim in its entirety, arguing that the Defendant’s Statement of Defence did not disclose any defence or raise any triable issues, but was evasive, vague, and merely aimed at delaying his claim. He maintained that although he had duly executed the sale agreement, the Defendant had failed to honour her side of the bargain, despite having all the requisite information to effect full payment of the purchase price as agreed. 13. That the Defendant had failed to honour her contractual obligations and arrogantly refused to receive the refund of the deposit, less 20%, as per the sale agreement. That he had always been ready to complete the sale agreement, but the Defendant's refusal to receive the refund of the deposit, less 20%, would make it impossible for him to avail of the completion documents. That the Defendant had frustrated the contract. 14. He contended that the Defendant had maliciously and fraudulently registered a caution against his title, thereby preventing him from enjoying the quiet possession of his property. That he had executed the sale agreement, but due to indolence and negligence, the Defendant had refused to clear the balance or to receive a refund of the deposited amount, less 20%. 15. He argued that the Defendant’s Statement of Defence was frivolous, vexatious and scandalous and an abuse of the court process, hence the same ought to be struck out and judgement entered in his favour as per the Plaint. 16. Subsequently, the case had proceeded for hearing wherein David Macharia Kinyuru, the Plaintiff therein, who while testifying as PW1, adopted his witness statement as his evidence in chief and produced the filed documents dated 2nd August 2024 in evidence as follows: 17. Copy of Title Deed as Pf Exh. 1 18. Copy of the Sale Agreement dated 5th February 2019 as Pf Exh. 2. 19. Copy of Certificate of Search dated 22nd July, 2024 as Pf Exh. 3. 20. He then proceeded to testify that on 5th February 2019, they had entered into an agreement with the Defendant for the sale of the land at a purchase price of Kshs. 4,000,000/=. That the Defendant paid Kshs. 2,000,000/= and was to pay Kshs. 2,400,000/= before the 4th May 2019, but she had not paid to date. In the year 2023, the Defendant placed a caution on the land without paying the balance. He denied having refused to give the Defendant the details of his account. He admitted that the Defendant had paid the first deposit of the purchase price, being Kshs. 2,000,000/= in cash. 21. However, the Defendants did not tell him of any difficulty in paying the balance during the COVID-19 period. He denied having sold the land to anyone else, stating that they had left the title at Tuza Commercial, where they had executed the agreement, so that the Defendant would have the same upon completion of payment of the balance of the purchase price. He prayed that the agreement be revoked, the caution on the suit property be removed and that he be awarded the costs of the suit. He maintained that the Defendant did not comply with the agreement, but he had done his part. 22. During cross-examination, he confirmed that the contract was between him and the Defendant and that it had been drafted at Tuza Commercial. He also confirmed that he had gone to Nairobi to receive the first payment of the purchase price from the Defendant. He further confirmed that the balance of the purchase price, being Kshs. 2,400,000/-, was due on 4th May 2019. He admitted that the contract did not specify where or how the balance was to be paid, but contended that it was to be paid before the documents were handed over. 23. In re-examination, he confirmed that the agreement was executed by Tuza Commercial, and that they had gone to the Defendant’s house to collect the money and then returned with her to Gilgil, Tuza Commercial. He further confirmed that he had gone to pick up the Defendant from her house, as the first payment was to be made in cash. He argued that it was not compulsory for an agreement to include account details. He also confirmed that the agreement did not require him to look for the Defendant, and that they had not agreed on where the balance would be paid. This was left open, subject to the agreement. The Plaintiff had thus closed his case. 1. The Defence case proceeded with the testimony of Jane Wairimu Kimunya, the Defendant therein, who gave evidence as DW2 (sic) to the effect that she was purchasing the Plaintiff’s property, having paid a sum of Kshs. 2,000,000/= in cash, which she had withdrawn from the Bank. That the Plaintiff presented her with an already-drafted sale agreement in her house. That she was to pay the balance upon receipt of the documents. 2. That she had tried to get in touch with the Plaintiff several times to complete the contract, but on many occasions, he cancelled the meetings they had scheduled. 3. She testified that the Plaintiff did not share his bank details with her. In the year 2022, she had engaged a law firm to ask him to avail himself so that they could complete the contract. Subsequently, a Demand Letter dated 2nd July 2024 was written to the Plaintiff, but he still declined to answer her calls. Upon visiting the suit property, she found that the same had been developed, fenced, and trees planted therein. That she located the Plaintiff, who told her that he had sold the property for Kshs. 8,000,000/= to his cousin in the USA, and that if she was offended, she should report to the police. The Plaintiff then proposed to give her another property for Kshs. 1,500,000/= and refund her the balance of Kshs. 500,000/=, which she declined. 4. That subsequently, she placed a caution on the suit property to protect her interests. She contended that the Plaintiff had occasioned the breach by refusing to give her the account details to pay the balance of the purchase price. She thus prayed for orders as per her Statement of Defence. 5. During cross-examination, she confirmed that she used to work at Ardhi House. That the agreement was for the sale of a *shamba* at a purchase price of Kshs. 4,400,000/= wherein she had paid a sum of Kshs. 2,000,000/= in cash. She denied that it had been indicated that the balance was to be paid by 4th April 2019, stating that the Plaintiff did not give her the Bank details, hence she could not pay the balance of the purchase price. That pursuant to the agreement, whoever failed to comply was to pay 20% penalty. She confirmed that she had visited Counsel in 2022, after the COVID-19 shutdown was lifted. 6. That, nonetheless, she had instructed the said counsel in the year 2019 after the time had lapsed, yet the Plaintiff had failed to give him her bank account details. She maintained that the Plaintiff had told her that he had sold the shamba to his cousin, although she had no proof to that effect. She confirmed that she had engaged an advocate in the year 2023 who had placed a caution on the suit property. Under the provisions of Clause 6 of the agreement, no date was specified as to when the balance was payable. She contended that payment of the balance was to be made concurrently with the handing over of the documents. That she was not to deposit documents with the advocate. 7. During re-examination, she insisted that the Plaintiff’s sale agreement at clause 1 had indicated that a sum of Kshs. 2,400,000/= was to be paid upon handing over the documents. That whilst she did not know how the balance was to be paid, she could pay the same concurrently with the documents being handed over. 8. The Defendant filed a List of Documents dated 18th August 2024 as follows: * 1. Copy of Demand Letter from Ongegu & Associates dated 12th July, 2024. 2. Copy of Official Land Search dated 25th January 2019 3. Statement of the Defendant dated 18th August 2024 The Defence had thus closed her case. **Determination.** 1. I have considered the record of appeal, the evidence in the trial court, the holding of the trial Magistrate, the written submissions of learned Counsel, the authorities cited and the applicable law. 2. Before I get into the merits of the Appeal, I must point out that it is trite that a Memorandum of Appeal must not be verbose or argumentative, as in this case, but must set forth concisely and under distinct heads, without argument or narrative, the grounds of objection to the decision appealed against, specifying the points which were alleged to have been wrongly decided, as was held by the Court of Appeal in the case of **Choitram & another v Nazari [1984] KECA 47 (KLR)** where the court held as follows: *‘’It was something like what Geoffrey Lane LJ felt in Technistudy v Kelland (supra) at page 1046: ie “the pleadings are masterpieces of obscurity”. The memorandum of appeal in this court is a mass of jumbled conundrums which runs into thirty grounds of appeal, and it is ten pages in length.* *Pleadings should be precise, models of clarity and simplicity of expression. The judge has to understand them in order to understand the case. Long repetitive argumentative averments, most of which are suitable subjects for evidence, and argumentative grounds of appeal, only cause confusion. They disincline a judge and lead him to say what the learned judge understandably said towards the end of his ruling.’’* 1. The Memorandum of Appeal filed herein raises no less than seventeen grounds of appeal. Some of the grounds contain what amounts to narrative or argument best left to submission. 2. Secondly, it is worth noting that the Respondent, in her submissions, sought to have the Appeal dismissed on the basis that it had been brought with unclean hands, the Appellant having disobeyed a 2015 court order. I have perused the proceedings herein, which began on the 19th November 2024, and therefore, such an order does not exist, to which the Appellant cannot be accused of having ‘’unclean hands’’ on those grounds. The allegations regarding a November 2015 ruling are therefore entirely foreign to the record, contextually impossible, and must be treated as a total fabrication. 3. Having said this and conscious of my duty as the first Appellate Court in this matter, I have reconsidered the decision appealed against and the evidence adduced in the trial court on matters of fact and law, as it is trite of me. 4. The summary of the parties' case is that the Appellant, David Macharia Kinyuru, instituted the suit seeking a declaration that, because the Respondent breached the contract for the sale of a parcel of land in Gilgil/Gilgil Block 1/5341 (Kekopey), he be discharged from his obligation to sell the land, and that the caution registered against his title by the Respondent be lifted. 5. That the parties entered into a land sale agreement on 5th February 2019 for the sale of parcel No. Gilgil/Gilgil Block 1/5341 (Kekopey) at a total purchase price of Kshs. 4,400,000/= (noted as Kshs. 4,000,000/= during oral testimony). The Respondent paid an initial cash deposit of Kshs. 2,000,000/=. Under the contract, the remaining balance of Kshs. 2,400,000/= was strictly due on or before 4th May 2019. The Respondent failed to make this payment. The Appellant asserted that he had fully performed his duties and, to facilitate completion, had left the original title deed at Tuza Commercial (the venue where the contract was executed) so the Respondent could collect it immediately upon settling the balance. The contract did not legally require him to chase the Respondent, issue reminders, or explicitly provide bank account details. The contract left the exact payment mechanism open, subject to the overall agreement. Accordingly, the Respondent unlawfully and maliciously registered a caution against the title on 22nd February 2023 without clearing the balance, thereby frustrating his right to quiet enjoyment of his property. That he was ready to complete the agreement or issue a refund of the deposit, less the 20% contractual penalty, but the Respondent arrogantly refused to accept it. He dismissed the Respondent's claims regarding bank details and the COVID-19 pandemic as a frivolous, vexatious afterthought designed to cover up her own negligence and contractual indolence. 6. Jane Wairimu Kimunya, the Respondent herein, defended her actions by arguing that any failure to complete the transaction was directly caused by the Appellant's deliberate non-cooperation and faulty drafting. The Appellant had presented her with an already-drafted agreement at her house, where she had only hand-written her name at the bottom and never appended a formal signature or initials on the designated dotted line, rendering it legally unexecuted. 7. Clause 1 and Clause 6 of the agreement provided that the balance of Kshs. 2,400,000/= was due concurrently with, and contingent upon, the Appellant handing over the title deed and signed transfer documents (including Land Control Board consent forms and his PIN certificate), but the agreement failed to specify where or how the balance was to be paid. She argued that because the Appellant actively refused to provide his bank account details, it was impossible for her to remit the funds. She had repeatedly called the Appellant to arrange meetings and request bank details, but he habitually cancelled scheduled appointments, even though she had engaged the firm of M/S Ongegu & Associates Advocates in 2019 and 2022 to officially track him down, to no avail. In January 2023, she decided to visit the land, only to discover that it had been fenced and developed. The Appellant admitted that he had already sold it to his cousin in the United States for Kshs. 8,000,000/= and offered her a cheaper land worth Kshs. 1,500,000/=, promising to reimburse her the balance of Kshs. 500,000/= and mockingly telling her to report him to the police. She then placed a caution on the land exclusively to protect her financial stake after discovering the double sale. She sought a full refund of her Kshs. 2,000,000/= deposit plus Kshs. 480,000/= (representing the 20% penalty clause calculated from the full purchase price). 8. Having given the brief summary and having perused the impugned sale agreement of 5th February 2019, I find the issues arising therein for determination as follows: 9. Whether the Sale Agreement dated 5th February 2019 was legally executed and enforceable against both parties. 10. Who, between the Appellant and the Respondent, breached the terms of the Sale Agreement? 11. Whether the trial Magistrate erred in law by awarding damages that were never pleaded or prayed for. 12. Whether the registration of the caution against Title Number Gilgil/Gilgil Block 1/5341 (Kekopey) by the Respondent was lawful and justified 13. On the first issue for determination, Section 3(3)*of the* Law of Contract Act provides as follows; *“No suit shall be brought upon a contract for the disposition of an interest in land unless: -* *(a) The contract upon which the suit is founded:* *(i) is in writing;* *(ii) is signed by all the parties thereto, and incorporates all the terms which the parties have expressly agreed in one document; and* *(iv) the signatures of each party signing has been attested by a witness who is present when the contract was signed by such party”.* 1. On the other hand, Section 38 (1) of the Land Act on Validity of contract in sale of land provides as follows: “*Other than as provided by this Act or by any other written law, no suit shall be brought upon a contract for the disposition of an interest in land—* *(a) the contract upon which the suit is founded—* *(i) is in writing;* *(ii) is signed by all the parties thereto; and* 1. *the signature of each party signing has been attested to by a witness who was present when the contract was signed by such party.* 2. Given the above, I think it is best that I lay out the agreement as was drawn for ease of reference. *‘’REPUBLIC OF KENYA* *SALES AGREEMENT.* *THIS AGREEMENT is made on 5th day of FEBRUARY the year Two Thousand and Nineteen. Between* ***DAVID MACHARIA KINYURU*** *ID/NO:****11461832*** *care of 19, GILGIL within the republic of Kenya herein after referred to as the* ***VENDOR*** *which* *expressions shall where the context so admit includes her personal representatives heirs and assigns of the ONE PART and JANE. WAIRIMU KAMUNYA ID NO 10709689 Care of P.O BOX: 293-00100 NAIROBI in the aforesaid republic hereinafter refereed to s (sic) the PURCHASER which expression shall where the context so admits include his personal representatives heirs and assign of the SECOND PART* ***SHOWETH:*** ***WHEREAS*** *the vendor is the registered owner of the parcel of land comprised in the Title* *deed known as* ***GILGIL/GILGIL BLOCK 5341 (KEКOPEY)*** *measuring approx. 0.8Hа.* ***AND WHEREAS*** *the vendor is desirous of selling the said parcel comprised in the Title Deed known as* ***GILGL /GILGIL BLOCK 5341 (Kekopey)*** *and the purchaser is desirous of buying for the same agreed consideration sum of Kenya Shilling Four million four hundred thousand (Ksh 4,400,000/=) only.* ***NOW THIS AGREEMENT WITNESSETH AS FOLLOWS****.* *1. The said agreed consideration sum of* ***Kenya Shilling Two Million only (Ksh 2,000,000)*** *has been paid by the purchaser unto the vendor* ***TODAY*** *5/7/2019 at execution hereof the remained balance of Ksh* ***2,400,000*** *shall be paid on or before* ***4rth*** *(sic)* ***May 2019****.* *2. The purchaser shall take possession of the purchased parcel immediately upon execution hereof.* *3. The subject parcel has been sold undeveloped.* *4. The purchase price hereof* ***(Ksh 4,400,000)*** *only is* ***NOT*** *inclusive Title Registration fee and the purchaser shall therefore meet the necessary applicable fee payable at the land office.* *5. Both parties have agreed that the title deed shall be retained by the firm Tunza Agencies.* *6. That the vendor shall hand over unto the purchaser the* ***Original Title deed*** *for the subject parcel together with all the necessary transfer document including* ***Application for Consent of land Control Board and Transfer forms (duly signed) coloured passport size photo,copies of Vendor's national Identity Card and Pin Certificate*** *to facilitate the registration of the subject parcel in purchaser's favor:* *7. The vendor shall always assist the purchaser to have he (sic) subject parcel transferred in his favor should there be any need o (sic) the vendor to avail herself at the land offices, she shall voluntarily do so without any duress.* *8. That this Sales agreement has been made on understanding parties(****purchaser and vendor****) have confirmed the status of the subject parcel and the role of the law Firm of M/s George n.kimani (sic) & Co advocate is to only put in writing ownership and what the parties have agreed* *9. Either party to revoke this agreement shall be liable to pay the aggrieved party damages for breach of contract calculated at 20% of the sale price herein plus cost incurred and interest at commercial rate and should such party be the vendor, she shall* *in addition refund the full purchase amount received to the purchaser plus any cost incurred thereof.* *10.* ***IN WITNESS WHEREOF****. The parties hereunto have set their representative hand today the date month and year hereinabove mentioned.* *11.* ***SIGNED*** *by the* ***VENDOR*** *the said.* *DAVID MACHARIA KINYURI)* *……………………….(****the court notes that a signature was appended on the dotted line****)* *In the presence of:-* ***WITNESS*** *Jane Wambui Kamunya Jwk (* ***the court notes that this was handwritten****)* *SIGNED by the PURCHASER the said:* *JANEB WAIRIMU KAMUNYA ……………..(* ***court notes that there is no signature appended on the dotted line****)* *In presence of:-* *WITNESS: Phelistus waitera Kiama 2078662* *(court notes that there is a signature appended here)* *5th February, 2019’’* 1. Section 44 (2) of the Land Registration Act states as follows: “*The execution of any instrument referred to in subsection (1), by a person shall consist of appending a person’s signature on it or affixing the thumbprint or other mark as evidence of personal acceptance of that instrument.”* 1. Having referred to the impugned sale agreement herein above, I find the submissions and argument by the Respondent that the agreement was unexecuted because a signature line was left blank, flatly contradicted by the face of the document. Indeed, Clause 11 reads: ***‘’SIGNED by the PURCHASER the said:*** *JANE WAIRIMU KIMUNYA* ***In presence of:- WITNESS:*** *Phelistus Wantira Kiama 2078662’’* 1. The Respondent did not leave a blank space but had physically handwritten her full legal name into the designated execution slot. Furthermore, her witness, Phelistus Wantira Kiama, appended her signature and National ID number directly below it, wherein the Appellant (DAVID MACHARIA KINYURU) signed, and was witnessed by Jane Wambui Kamau. On its face, the execution clause is complete, mutual, and fully witnessed. 2. Indeed, it is trite that a signature is not restricted to a cursive, stylized scribble but is any mark, print, or writing made by a person with the deliberate intention of authenticating a document and expressing an intention to be bound by its terms. The Law of Contract Act at Section 3(3) dictates that no contract for the disposition of an interest in land is enforceable unless it is in writing and is signed by all parties thereto, and therefore, a person who writes their name in a signature block with the intent to validate the document has signed it. 3. I find that the Sale Agreement dated 5th February 2019 meets all statutory requirements of Section 3(3) of the Law of Contract Act. It was in writing, set out clear terms, identified the property, and was executed by both parties in the presence of witnesses; therefore, it was legally binding and enforceable against both parties. 4. On the second issue for determination as to who, between the Appellant and the Respondent, breached the terms of the Sale Agreement, the court looked at the strict chronology of obligations created by the text of the contract and the subsequent conduct of the parties. A look at Clause 1 of the agreement creates a strict, time-bound condition precedent for the Respondent to the effect that; *"...the remained (sic) balance of Ksh 2,400,000 shall be paid on or before 4rth (sic) May 2019."* 1. The contract gave the Respondent exactly three months from the execution date (5th February 2019) to pay the balance of Kshs. 2,400,000/=. Clause 6 of the agreement further stated that the vendor shall hand over the original title and signed transfer documents tofacilitate registration. Naturally, this delivery was commercially and legally contingent upon the payment of the purchase price. A vendor cannot be expected to hand over a signed transfer form and an original title deed while a balance of Kshs. 2,400,000/= remains unpaid. By failing to remit the balance on or before 4th May 2019, the Respondent committed a fundamental breach going to the root of the contract. 2. The Respondent raised two primary excuses for her non-performance: first, that because the contract did not include the Appellant’s bank account, she could not pay; second, that she did not know where or how to complete the transaction. I find that both these reasons were defeated by the plain language of the contract because the agreement did not state that payment must be made via bank transfer; in fact, the first payment of Kshs. 2,000,000/= was paid in cash. The burden was on the debtor (the Purchaser) to find the creditor (the Vendor) and tender payment in legal tender. 3. Indeed, clause Clause 5 of the agreement explicitly states: *"Both parties have agreed that the title deed shall be retained by the firm Tunza Agencies."* 1. I find that the completion venue had been provided in the Agreement, being ‘’Tunza Agencies", which was the designated escrow holder of the title. If the Respondent was acting in good faith, her recourse on or before 4th May 2019 was simple; she should have tendered either a banker's cheque or cash of Kshs. 2,400,000/= to Tunza Agencies or the Appellant in exchange for the completion documents. She did not do this but remained silent for years. 2. The Respondent admitted that she only instructed a law firm to follow up on the transaction in 2022, and only placed a caution in 2023 which wasnearly four years after her contractual deadline had lapsed. She blamed the COVID-19 pandemic, but it did not begin until March 2020, nearly a full year after her 4th May 2019 deadline had already expired. Where time was of the essence, a party cannot wait indefinitely to perform an obligation, and therefore the other party was entitled to treat the contract as repudiated, treat it as rescinded by default, and proceed to utilise their property. By 2023, the Respondent had been in unremedied material breach since May 2019, and therefore, she could not have paralysed the Appellant’s property for four years by withholding more than 50% of the purchase price and then claim the vendor was in breach for moving on. 3. In **Langat v Co-operative Bank of Kenya Ltd (Civil Appeal 48 of 2015) [2017] KECA 152 (KLR) (1 December 2017) (Judgment),** the Court of Appeal sitting in Nairobi had at paragraph 38 held as follows: *“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. See* ***Megarry, J. in the case of Coco vs A. N. Clark (Engineers) Ltd. - [1969] RPC 41****.”* 1. I therefore find that the breach was committed solely and entirely by the Respondent. She failed to pay the contractual balance. 2,400,000/= by the clear deadline of 4th May 2019. Her failure cannot be legally excused by the absence of a bank account clause or the later intervention of the pandemic. The Appellant had performed his primary duty by executing the agreement, accepting the deposit, and depositing the original title deed with *Tunza Agencies* for safekeeping pending completion. The Respondent's absolute indolence for over four years constitutes a total failure of consideration and a fundamental breach of contract. 2. On the third issue for determination as to whether the trial Magistrate erred in law by awarding damages that were never pleaded or prayed for, it is trite that the court's jurisdiction is strictly confined to the boundaries drawn by the parties in their pleadings. By awarding the Respondent Kshs. 880,000/= when she had specifically pleaded and prayed for Kshs. 480,000/=, the trial Magistrate stepped out of the role of an impartial arbiter and into the arena of advocacy. 3. Indeed, the Respondent’s advocate made a glaring mathematical error in the pleadings. Instead of calculating 20% of the full purchase price (Kshs. 4,400,000/=), which equals Kshs. 880,000/=, they wrote Kshs. 480,000/= and never amended their Statement of Defence to rectify this math before or during the trial. The Appellant entered the hearing, prepared to defend a claim of Kshs. 480,000/=. 4. Pleadings are the bedrock of civil litigation; they define the issues, prevent surprise, and establish the limits of what a court can grant, and therefore, a court cannot award a party what they have not specifically asked for. If a party asks for Kshs. 480,000/=, the absolute maximum a court can legally award them is Kshs. 480,000/=, even if the Magistrate’s own math reveals they were entitled to more. 5. The Court of Appealin **Independent Electoral and Boundaries Commission & another v Mule & 3 others [2014] KECA 890 (KLR)** firmly held that: *"As the authorities do accord with our own way of thinking, we hold them to be representative of the proper legal position that parties are bound by their pleadings which in turn limits the issues upon which a trial court may pronounce. The learned Judge, no matter how well- intentioned, went well beyond the grounds raised by the Petitioners and answered by the Respondents before her and thereby determined the Petition on the basis of matters not properly before her. To that extent, she committed a reversible error, and the Appeal succeeds on that score.’’* 1. Since it is trite thata court has no power to gratuitously award sums greater than those prayed for in a liquidated claim, as doing so violates the opposing party's right to know the exact case they are meeting, by expanding the Respondent's financial claim from 480,000/= to 880,000/= without an amendment, the trial Magistrate directly prejudiced the Appellant who was denied the opportunity to contest the higher figure, offer a defense against it, or cross-examine the Respondent on how that specific valuation was arrived at in her testimony. 2. Furthermore, this award highlighted a fatal internal contradiction in the Magistrate's judgment whereby she had ruled that the contract was invalid because the Respondent did not use a traditional signature. If indeed the contract was invalid or unexecuted, then Clause 9 (the 20% penalty clause) was legally dead. For the Magistrate to throw out the contract as invalid, then turn around and enforce its penalty clause, artificially inflating it by 400,000/=, I find, was an error of law. 3. On the last issue for determination as to whether the registration of the caution against Title Gilgil/Gilgil Block 1/5341 (Kekopey) by the Respondent was lawful and justified, Section 71 of the Land Registration Act, 2012 provides as follows: *A person who—* *(a)claims the right, whether contractual or otherwise, to obtain an interest in any land, lease or charge, capable of creation by an instrument registrable under this Act;* *(b)is entitled to a licence; or* *(c)has made an application for a bankruptcy order against the proprietor of any registered land, lease or charge.* *(2)A caution may either—* *(a)forbid the registration of dispositions and the making of entries; or* *(b)forbid the registration of dispositions and the making of entries to the extent expressed in the caution.* *(3)A caution shall be in the prescribed form, and the Registrar may require the cautioner to support the caution by a statutory declaration.* *(4)The Registrar may reject a caution that is unnecessary or whose purpose can be effected by the registration of an instrument under this Act.* *(5)Subject to this section, the caution shall be registered in the appropriate register* 1. As can be seen above, for the registration of a caution to be legally valid, it ought to have met the basic threshold under Section 71 of the Land Registration Act as herein above. The Respondent ought to have shown that she possessed a legitimate, recognizable caveatable interest because cautions cannot be used as a malicious tool to freeze a title or force a settlement. In this case, having found that the Respondent was the indolent and defaulting party, who had lost any equitable or contractual claim to the property on 4th May 2019, the caution was lodged wrongfully and maliciously in 2023 to punish the Appellant for developing his own land, rather than to protect a genuine, active purchase. Further, her claim for a refund demonstrated that she had waived any proprietary right to the land, rendering the continuation of the caution an abuse of the registration system. Placing a caution on the suit land was therefore unjustified because cautions protect interests *in land*, not personal financial disputes. 2. Indeed, under Section 75 of the Land Registration Act, anyone who lodges or maintains a caution wrongfully and without reasonable cause is legally liable to pay compensation to any person who sustains damages because of it. If the caution is preventing the owner from developing, charging, or selling the land without a solid underlying legal basis, it shifts from a protective measure to an unlawful encumbrance. Since the contract was legally terminated, such a caution can be removed under Section 73 of the Act by either the Land Registrar or the Court. 3. Ultimately, since equity does not allow a vendor to retain both the land and a substantial cash deposit where the contract is rescinded, as that would amount to unjust enrichment. Consequently, this Court finds substantial merit in this appeal and issues the following final orders: 4. The appeal is hereby allowed in its entirety, and the Judgment and Decree of the trial court in Naivasha MCELC No. E068 of 2024 is set aside. 5. A declaration is hereby issued that the Respondent fundamentally breached the Sale Agreement dated 5th February 2019, and the Appellant is completely discharged from any legal obligation to complete the sale of land parcel Gilgil/Gilgil Block 1/5341 (Kekopey). 6. The Land Registrar, Naivasha Land Registry, shall, within 14 days, liftthe Caution registered against Title Number Gilgil/Gilgil Block 1/5341 (Kekopey) by the Respondent on 22nd February 2023. 7. The Appellant shall, within 14 days, refund to the Respondent the initial deposit sum of Kshs. 2,000,000/=, less the contractually mandated 20% breach penalty. This sum shall attract interest at court rates from the date of this judgment until payment in full. 8. The costs of this Appeal and the costs of the lower court are hereby awarded to the Appellant. **Dated and delivered via Teams Microsoft at Naivasha this 21st day of May 2026.** **M.C. OUNDO** **ENVIRONMENT & LAND COURT – JUDGE**