https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1542

Lakeview Investment Ltd v Ndege & 2 others (Civil Appeal E528 of 2025) [2026] KECA 1542 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1542 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal E528 of 2025 SG Kairu, GV Odunga & HI Ong'udi, JJA July 31, 2026 Between Lakeview Investment Ltd Appellant and Jennifer Waithira Ndege 1st Respondent Manwah Bwosiemo Magar 2nd Respondent Al Ruhia Estates Limited 3rd Respondent (Being an appeal against the judgment and decree of the Environment and Land Court of Kenya at Machakos (C. Ochieng, J.) delivered on 27th March 2025 in ELC No. 211 of 2011 (consolidated with) ELC No. 156 of 2018) Judgment 1.This is appeal arises from the judgment delivered by the Environment and Land Court (ELC) in Machakos on 27th March 2025 in which ELC Case 211 of 2011 was consolidated with ELC Case No. 156 of 2018. It was directed that ELC No. 211 of 2011 be the lead file. 2.ELC No. 211 of 2011 was instituted by the appellant herein, Lakeview Investment Ltd (hereinafter referred to as Lakeview), as the plaintiff, while the 1st, 2nd and 3rd respondents herein were Nai Civil Appeal No E528 of 2025 Page 1 of 49 the 1st, 2nd and 3rd defendants respectively. For ease of reference we shall refer to the said respondents as Jennifer, Manwah and Al Ruhia respectively while the 1st and 2nd respondents where they are referred to jointly, shall be referred to as the Vendors. In its suit, Lakeview claimed the following reliefs:1.A permanent injunction restraining the defendants jointly and severally, their agents and/or servants from alienating, trespassing on, transferring and /or in any other manner dealing adversely with the land parcel known as LR No. 25695 situate within Mavoko Municipality in Machakos county.2.An order declaring the sale agreement dated 16th December 2010 between the 3rd defendant and the 1st and 2nd defendants null and void.3.An order for cancellation of the title and registration of the 3rd defendant as proprietor of the land parcel known as LR No. 25692 situate at Mavoko Municipality in Machakos County.4.An order of specific performance against the 1st defendant to transfer the parcel of land known as LR No. 25692 situate at Mavoko Municipality to the plaintiff and in default, the Deputy Registrar of the High court do sign all the transfer or necessary documents on behalf of the 1st defendant to the plaintiff.5.Damages for breach of contract as against the 1st and 2nd defendants.6.Cost of the suit.7.Any relief that this Honourable court deems fit and just to grant. 3.Lakeview’s case was that Manwah, Jennifer’s husband, was at all material times the registered owner of land parcel known as LR No.25695 situate within Mavoko Municipality in Machakos county (the suit property). Vide a Sale Agreement dated 16th November 2009, the Vendors sold the suit property to Lakeview at the purchase price of Kshs 8,000,000/=. Pursuant thereto, Lakeview paid Manwah Kshs 1,000,000/= upon execution of the Sale Agreement, leaving a balance of Kshs 7,000,000/= which was to be paid within a period of 180 days, upon the Vendors availing completion documents. Upon payment of the said deposit, Lakeview would immediately take possession of the suit property. To expedite the completion of the transaction, time being of the essence, Lakeview, on diverse dates between 16th November 2009 and 18th January 2010, paid the Vendors a total sum of Kshs 3,191,000/= towards payment of the said purchase price receipt of which the Vendors acknowledged. 4.Lakeview contended that on or about January 2010 when it physically took possession of the suit property and commenced erecting a perimeter fence around it as provided in the Sale Agreement, Jennifer intervened and sought to have Lakeview evicted from the suit property alleging that she was not privy to and never executed the Sale Agreement dated 16th November 2009. Upon further deliberations with the Vendors, another Sale Agreement dated 22nd January 2010 was executed between Lakeview on one hand and the Vendors on the other hand in which the acreage of the plot being sold was reduced by 3 acres and the purchase price also adjusted to Kshs 5,600,000/=. In this new agreement, the completion date was similarly agreed to be 180 days from the date of the execution thereof, with the Vendors undertaking to endeavour to avail all the completion documents. However, despite Lakeview being ready and willing to complete the transaction within the completion period, the Vendors reneged and failed to avail the completion documents as stipulated in the Agreement. 5.Lakeview contended that on diverse dates between the 22nd January 2010 and 13th August 2010, it had paid the Vendors a total sum of Kshs 5,481,000/= towards the purchase price, even though the Vendors had failed to deliver to it the completion documents as expressly provided for in the Sale Agreement. Further, Lakeview contended that it paid the Vendors a further sum amounting to Kshs 1,747,000/= in cash towards settlement of land rates and other cash payments through M-Pesa, as demanded from time to time by Manwah towards the payment school fees for his children. Lakeview averred that when it dawned on it that the Vendors were not meeting their side of the bargain of delivering the completion documents, it, through its Advocates gave the Vendors a 21 days' Completion Notice failure to which it would seek legal redress. The notice went unheeded. Later, Lakeview discovered that Jennifer had, in breach of the terms of the subsisting Sale Agreement dated 22nd January 2010, fraudulently and unlawfully entered into a Sale agreement dated 16th December 2010, with Al Ruhia for the sale of the suit property. 6.In their Written Statement of Defence dated 22nd January 2013, the respondents contended that: Manwah was wrongly joined in the suit since the suit properly was not jointly owned by Jennifer and Manwah; the agreement dated 22nd January 2010 superseded the purported agreement of 16th November 2009; Lakeview only paid a total of Kshs 1,400,000/= and not Kshs 2,400,000/= as alleged; that it turned out that the said money did not belong to Lakeview but was from Al Ruhia, to whom it was allegedly selling Jennifer’s land without her knowledge or consent and with the intention of fraudulently and unjustly enriching itself; that at all material times Lakeview misrepresented itself to Al Ruhia as the lawful owner of the suit property despite knowing well it belonged to Jennifer and that it did not have the capacity or lawful right to sell the land to Al Ruhia; that while the Sale Agreement dated 22nd January 2010 allowed Lakeview to fence the suit property, it did not authorise it to subdivide it; that besides the aforesaid misrepresentation by Lakeview, its action of subdividing the land amounted to a fundamental breach of the contract; that Jennifer, lawfully and in good faith, opted to finalize the sale with Al Ruhia; and that upon the completion of that sale, the contract with Lakeview was rendered legally unenforceable. The respondents prayed that the suit be dismissed with costs. 7.ELC No. 156 of 2018 was instituted by Al Ruhia, as the plaintiff against Lakeview. Al Ruhia’s case, as pleaded, was that Lakeview misrepresented itself as the lawful owner of the suit property despite knowing very well that the land belonged to Jennifer and that it did not have capacity or lawful right to sell it. That based on the said misrepresentation, and with a view to fraudulently and unjustly enrich itself, Lakeview received from Al Ruhia Kshs 7,000,000. After the said payment, and while Al Ruhia was preparing to fence and subdivide the land as agreed with Lakeview, the Vendors appeared at the scene claiming to be the real owners of the property. It was then that Al Ruhia realised that Lakeview cheated it by claiming to be the real owner, yet it was just using the monies received from Al Ruhia to pay the actual and the original owners the agreed purchase price for the same land. Further, to perpetuate the fraud, Lakeview misled Al Ruhia to believe that the subdivision scheme dated February 2010 had been approved when, in fact, the same had been rejected on the ground that it had not been drawn according to the scale subdivision and was not to the required standard. 8.It was Al Ruhia’s case that after extensive consultations between all the parties involved, it was amicably resolved that Al Ruhia would directly purchase the land from Jennifer. Consequently, a fresh sale agreement was entered into between Jennifer and Al Ruhia on 16th December 2010 whose effect was the removal of Lakeview from the picture and the suit property was eventually transferred to Al Ruhia. Notwithstanding the transfer of the land to Al Ruhia, Lakeview continued to interfere with the suit property and not only forcibly entered but also fenced the land and continued to offer it for sale to the unsuspecting public purporting to have purchased it from the previous owners. As a result of Lakeview’s actions, Al Ruhia was unable to develop the suit property. 9.Al Ruhia disclosed that apart from ELC Case No. 211 of 2011, Lakeview filed ELC Case No. 210 of 2011 which was heard and determined ex parte. In that suit, it was disclosed, the court, while declining to grant Lakeview an order for specific performance, directed that Lakeview be refunded the deposit paid to the vendors. 10.In its suit Al Ruhia sought the following reliefs:1.An injunction to restrain the defendant, its servants or agents from trespassing, entering, remaining, fencing, selling, offering for sale, transferring, charging and/or in any way whatsoever interfering with Lakeview’s quiet enjoyment of property LR No.25692 –Mavoko Municipality.2.An eviction order against the defendant and its agents including demolition of the illegal structures on the suit property.3.Refund of Ksh. 7,000,000/=4.An order that the officer commanding Mlolongo Police Station to enforce.5.Mesne profits.6.General damages. 11.Lakeview’s witness, Joseph Oduor Okwaro (PW1), testifying in his capacity as Lakeview’s director, stated that Lakeview purchased the suit property from the Vendors vide sale agreements dated the 16th November 2009 and 22nd January 2010, respectively. Relying on Lakeview's bundle of documents, he stated that the Sale Agreement dated 16th November 2009 was in respect of 3.598 Ha (10 acres) of the suit property at a consideration of Kshs8,000,000 out of which Lakeview deposited Kshs 1,000,000 in cash to Manwah while the balance was to be paid within 180 days from the date of execution and upon receipt of the completion documents from the Vendors. He testified that Lakeview took possession of the suit property in January 2010 and when it started erecting a perimeter fence, its representatives were accosted by Jennifer, who ordered them to vacate the land claiming that she was the owner and had not sold it. PW1 explained that the Sale Agreement dated 16th November 2009 was not signed by Jennifer but was signed by Manwah and his daughter. 12.It was his evidence that the parties then entered into a fresh Sale Agreement dated the 22nd January 2010 in respect of seven (7) acres of the suit property at a consideration of Kshs 5,600,000 pursuant to which Lakeview paid the Vendors Kshs1,200,000 as deposit with the balance payable within 180 days from the date of execution. However, by 13th August 2010, Lakeview had paid Kshs 5,481,000 and a further Kshs1, 747,000 was paid via M- Pesa, bringing the total amount paid to Kshs 7,228,000, far more than the agreed purchase price. In breach of the second Sale Agreement, the Vendors did not deliver completion documents within 180 days, prompting Lakeview's lawyers to send to Jennifer a twenty-one (21) days' completion notice. He averred that during the subsistence of the Sale Agreement dated the 22nd January 2010, Jennifer entered into another Sale Agreement dated the 16th December 2010 with Al Ruhia. Notwithstanding the fact that there was an interim order of injunction in force restraining the respondents from dealing adversely with the suit property, Jennifer transferred the suit property to Al Ruhia on 8th May 2012. 13.In cross-examination, PW1 stated that Lakeview's deposit of Kshs 1,000,000 paid pursuant to the Sale Agreement dated 16th November 2009 was not refunded on the understanding that it would form part of the purchase price for the Sale Agreement dated 22nd January 2010. It was his further testimony that, at the time of purchase, the suit property only had a Letter of Allotment, and that part of the purchase price was to be used to process the title deed. It was however agreed that Lakeview would take possession immediately. He confirmed that Lakeview purchased the seven (7) acres at Kshs 800, 000 per acre, making the total purchase price to be Kshs 5,600,000. The completion date, in his evidence was to be July 2010. While conceding that Lakeview entered into another Sale Agreement with Al Ruhia, under which it was to sell to the latter subdivisions of the suit property, he insisted that Al Ruhia knew that the suit property did not have title. He asserted that the Vendors became jealous after they realized that Lakeview was selling the suit property to Al Ruhia at a higher price and that this is what prompted them to enter into a Sale Agreement dated the 16th December 2010 with Al Ruhia. Manwah, according to PW1, was well aware that Lakeview was purchasing the suit property so as to sell the resultant subdivisions to third parties. PW1 confirmed that Lakeview undertook subdivision of the suit property in 2009 before the 2010 Sale Agreement and received Kshs 2,650,000/= from Al Ruhia. 14.In re-examination, PW1 clarified that Lakeview undertook the proposed subdivision of the suit property while awaiting its title deed and later sought approval to sell the subdivided plots. He reiterated that Jennifer neither gave Lakeview a termination notice of the sale agreement dated the 22nd January 2010, nor the completion documents, despite Lakeview having paid the full purchase price. 15.Manwah, testifying as DW1 adopted his witness statement dated the 20th February 2020 as his evidence in chief and produced documents contained in the Defendants’ List and Bundle of Documents dated the 3rd December 2021. He maintained that he was wrongly sued because, even though he witnessed the two Sale Agreements dated the 16th November 2009 and 22nd January 2010, he was not the registered proprietor of the suit property and had no legal right to deal with it. He was however, aware that Lakeview failed to honour the terms of the Sale Agreement dated the 22nd January 2010, leading to its collapse. 16.In cross examination, Manwah stated that by consent of the parties, he received Kshs1,747,000 on diverse dates on behalf of his wife towards the Sale Agreement dated the 16th November 2009 and that he had given Lakeview authority to fence seven (7) acres out of the suit property for security purposes only. He insisted that Lakeview disregarded his instructions and fenced off the entire ten (10) acres as a result of which he notified Lakeview that it had acted contrary to the said Sale Agreement. It was his evidence that the Sale Agreement dated the 22nd January 2010 was deferred by consensus of the parties. He was not sure if Lakeview had paid him and Jennifer Kshs. 5,481,000. 17.Manwah insisted that Jennifer did not breach the Sale Agreement dated the 22nd January 2010, and maintained that it was Lakeview that failed to pay the balance of the purchase price, of which, it was given a 21 days’ notice to complete vide a letter from Messrs Mutunga advocates addressed to Messrs Mwagambo & Okonjo Advocates. He however did not have a copy of the said letter in court. He confirmed that Al Ruhia was in possession of the suit property. He insisted that he twice refunded Kshs. 200,000/= to Messrs Mwagambo & Okonjo advocates. He however, denied receiving a deposit of Kshs. 1,000,000 in respect of the Sale Agreement dated the 16th November 2009 but admitted receiving some payments. He claimed that Lakeview had initially agreed to a refund of the purchase price but later retracted and insisted that Lakeview did not pay the deposit of Kshs 1,200,000 in respect of the Sale Agreement dated the 22nd January 2010. 18.Jennifer, testifying as DW2, substantially adopted her witness statement dated the 20th February 2020. She denied being a party to the Sale Agreement dated the 16th November 2009 and disclosed that she only became aware of it when she found people subdividing the suit property. Further engagement led to the execution of the Sale Agreement dated the 22nd January 2010, with Lakeview for the sale of the suit property. It was her evidence that the purchase price was to be Kshs5,600,000 comprising of a deposit of kshs.1,200,000, which Lakeview never paid. She however admitted that she received about Kshs1,795,000 from Lakeview on diverse dates between the 21st January 2010 and 18th August 2010. It was her evidence that the Sale Agreement dated the 22nd January 2010 was not completed because she realized that Lakeview had already entered into another agreement with Al Ruhia and had started subdividing the suit property. She denied receiving any demand notice dated the 21st June 2011. It was her case that she never gave any Notice of Termination of the Sale Agreement dated the 22nd January 2010 because Lakeview’s agreement with Al Ruhia had rendered their agreement null and void. 19.Jennifer admitted that she entered into an agreement dated the 16th December 2010 with Al Ruhia and that it was finalized, the suit property was surveyed and Al Ruhia granted possession. She was categorical that Lakeview had only been authorized to fence its portion of seven (7) acres for security purposes but in total breach of the agreement, it proceeded to subdivide the suit property and to sell portions of it, without her consent. 20.In cross-examination, DW2 stated that her husband, Manwah, was only included, as vendor, in the agreement dated the 22nd January 2010 as a mark of respect although they jointly received monies from the purchaser. It was her testimony that by the time she entered into a sale agreement with Al Ruhia, she had received about Kshs 3,000,000 from Lakeview which she verbally offered to refund but that process was kept in abeyance. It was her case that at the time of executing the Sale Agreement of 22nd January 2010, she did not have a title to the suit property and that she did not avail completion documents to Lakeview as it had not finished paying the purchase price. She however admitted that, she transferred the suit the land to Al Ruhia on 18th May 2012 during the pendency of this suit but explained that the transfer had been signed before the court case. 21.In re-examination, Jennifer clarified that they received Kshs. 3,000,000 from Lakeview in respect to the Sale Agreement dated the 22nd January 2010 and that after she received a further payment of Kshs 750,000, she realized that there were other deals taking place behind their back thus her reason not to hand over the completion documents to Lakeview. She clarified that she did not pay stamp duty as she sold the suit property to Al Ruhia. 22.Hussein Hassan Mohamed, testifying on behalf of Al Ruhia as DW3, adopted his witness statement dated the 20th February 2020 and his further witness statement dated the 3rd December 2021 as his evidence in chief. It was his testimony that in late 2009, Lakeview’s directors approached him with a proposal toN sell to Al Ruhia part of LR No. 25692 and LR 25693 consisting of 80 plots measuring 80 by 40 feet for Kshs 250,000/= each, all totalling to Kshs. 20,000,000. After negotiations, they paid Lakeview a deposit of Kshs 2,500,000 but by the time Al Ruhia came to know of the registered owner of the suit property, it had paid Lakeview Kshs. 7,000,000, which Lakeview still retained. It was his evidence that Al Ruhia’s efforts to fence the suit property were thwarted by the Vendors who claimed to be the registered owners. Al Ruhia then realized Lakeview had duped it into paying money to Lakeview by misrepresenting itself as the owner of the said land. After consultations, Al Ruhia accepted to purchase the suit property directly from Jennifer, the registered owner, thus a fresh Sale Agreement was executed on 16th December 2010 and the suit property transferred to Al Ruhia. 23.In cross-examination, DW3 explained that Al Ruhia first purchased the 80 plots from Lakeview in 2009. He admitted that Al Ruhia neither conducted due diligence nor retained a lawyer to oversee that transaction. He insisted that they paid Lakeview Kshs 7,000,000 which included Kshs 2,500,000 as deposit but Lakeview did not issue them with receipts. He stated that although Lakeview gave Al Ruhia a Deed Plan, Al Ruhia was barred from fencing the land by the Vendors, on the ground that the land was owned by Jennifer. Jennifer, however, did not disclose that she had sold the suit property to Lakeview. 24.According to DW3, when he presented the Deed Plan which Lakeview gave Al Ruhia to Mavoko County Survey Office, they told him that it was not genuine. When he reverted to Lakeview to confirm ownership, he was informed that Lakeview had disagreed with the Vendors. He admitted that ten (10) months later, Al Ruhia purchased the suit property from the Vendors pursuant to a Sale Agreement dated the 16th December 2010. 25.DW3 clarified that Al Ruhia purchased the whole of the suit property, which was ten (10) acres out of which it had only fenced seven (7) acres but was yet to develop it. The other three (3) acres were in possession of Lakeview although the title was in Al Ruhia’s name. 26.In her judgment, the learned Judge identified the following issues for determination:1.Whether Lakeview is entitled to orders of specific performance in respect to the Sale Agreement dated the 22nd January 2010.2.Whether Al Ruhia is entitled to the suit property and should evict Lakeview therefrom.3.Whether Lakeview is entitled to the prayers as sought in its amended Plaint dated the 31st January 2022.4.Whether Al Ruhia is entitled to the orders as sought vide its amended Plaint dated the 3rd December 2021. 27.On the first two issues, the learned Judge found that the alleged 21 days’ completion notice dated the 21st June 2010 by Lakeview to Jennifer, to complete the Sale Agreement was premature in light of the contention by Lakeview that Jennifer received Kshs 750,000 toward the purchase price on the 13th August 2010, three months after giving the completion notice. According to the learned Judge, since Lakeview did not pursue completion further, the only remedy available to it, as per Clause 6 of the Sale Agreement, was to rescind the sale and seek for a refund of the deposit as there was no evidence tendered of a written document on variation of the contract. Further, as Clause 15 of the Sale Agreement clearly stated that delay did not constitute a waiver, Clause 4 on completion was not waived by the fact that Lakeview continued to pay and Jennifer continued to receive the purchase price. 28.The learned Judge relied on the decision in National Bank of Kenya Ltd vs Pipeplastic Samkolit (K) Ltd & Another [2001] eKLR where it was held that a court of law cannot re-write a contract between the parties and that parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded and proved. He held that both Lakeview and the Vendors were bound by the terms of the Sale Agreement dated the 22nd January 2010 and that both parties breached its terms as they failed to perform their obligations within the requisite completion period. It was noted that Lakeview proceeded to subdivide the suit property and sold plots to third parties in breach of the Sale Agreement. The learned Judge cited the case of Christine Nyanchama Oanda v Catholic Diocese of Homa Bay Registered Trustees [2020] eKLR, where it was held that a party seeking the equitable remedy of specific performance of a contract must show that he or she has performed all the terms of the contract which he or she has undertaken to perform whether expressly or by implication. He also cited the case of Reliable Electrical Engineers (K) Ltd v Mantrac Kenya Limited [2006] eKLR in which it was held that specific performance, being a discretionary equitable remedy, will not be ordered where there is an adequate alternative remedy such as damages. 29.From the evidence on record, the learned Judge found that Lakeview proved that it paid Jennifer Kshs 3,191,000. Although Jennifer and Manwa admitted to only receiving Kshs 1,991,000 and disputed receipt of Kshs1,200,000, from the Sale Agreement dated the 22nd January 2010, there was an admission of receipt of Kshs1,200,000 at the point of executing the agreement. 30.In respect to the Agreement between Lakeview and Al Ruhia over sale of the 80 plots, the learned Judge found that although DW3 claimed that Al Ruhia paid Lakeview a total of Ksh.7,000,000, PW1 admitted that Lakeview only received Kshs 2,650,000. According to the learned Judge, Al Ruhia failed to discharge the burden of proving that it paid Lakeview a total of Kshs 7,000,000. 31.The learned Judge further found that Lakeview had no capacity to sell the suit property to Al Ruhia as it had not acquired a full interest therein as it neither had its title nor had it completed paying the full purchase price. It was also improper for it to take vacant possession before paying the full purchase price as this was contrary to Clause 10 of the Sale Agreement. It was noted that Lakeview commenced subdivision of the suit property and sold plots to Al Ruhia yet the land did not belong to it as the Letter of Allotment and the Sale Agreement, which it sought to rely on, did not confer any transferable interest to it. In that regard the learned Judge referred to the Supreme Court case of Torino Enterprises Limited v Attorney General (Petition 5 (E006) of 2022) [2023] KESC 79 (KLR) (22 September 2023) (Judgment). 32.On the issue of cancellation of Al Ruhia’s title as sought by Lakeview the court noted that the Sale Agreement between Al Ruhia and Jennifer was entered into on the 16th December 2010, in respect of the whole of the suit property. Jennifer admitted that they received the full purchase price and transferred the suit property to Al Ruhia in May 2012. By the time Jennifer was selling land to Al Ruhia on 16th December 2010, the 180 days completion period for the Sale Agreement dated the 22nd January 2010 had lapsed. The learned Judge referred to Section 26 of the Land Registration Act of 2012 and the case of Dr. Joseph Arap Ngok v Justice Moijo Ole Keiwua & 5 Others, Nai. Civil Appeal No. 60 of 1997 on the indefeasibility of title and, based on the evidence before the court, found that Al Ruhia proved that it legally acquired the suit property from Jennifer. The learned Judge’s view was that although Al Ruhia initially had a Memorandum of Understanding with Lakeview dated the 25th February 2010, since Lakeview was not the owner of the land and had not acquired any interest in it, Al Ruhia was not barred from entering into an agreement with Jennifer. In the circumstance, the learned Judge found that Al Ruhia was the absolute proprietor of Land Reference Nos. 25692 and upheld its title. 33.The learned Judge found that Lakeview was only entitled to a refund of purchase price, which it paid to the Vendors including interest but was not entitled to the rest of the orders sought in the plaint. However, as Lakeview never sought for a refund of the purchase price, in light of the holding in Adetonn Oladeji (NIG) Ltd v Nigeria Breweries PLC S.C. 91/2002 as well as the case of Raila Amolo Odinga & Another v IEBC & 2 others [2017] eKLR), the learned Judge was unable to grant that order but directed Lakeview to file a fresh claim in that regard. 34.The court, however, ordered Lakeview to grant Al Ruhia vacant possession of the portion of the suit property it occupied, failure of which it should be evicted therefrom. Accordingly, the learned Judge found that Lakeview failed to prove its case on a balance of probability and dismissed ELC 211 of 2011 with no order as to costs. 35.The Court noted that although Al Ruhia had sought for refund of the purchase price being Kshs 7,000,000/= which it alleged to have paid to Lakeview, it failed to tender any evidence in respect thereof, save for Kshs 2,650,000 which PW1 admitted receipt of. It was further found that Al Ruhia had failed to tender any evidence to prove their claim for damages and mesne profits and was not entitled to them. The court ordered that, since the Vendors were responsible for the dispute, they should bear the costs of both Lakeview and Al Ruhia. 36.In the end the learned Judge entered judgment in the following terms:i.An injunction restraining Lakeview Investment Limited, its servants or agents from trespassing, entering, remaining, fencing, selling, offering for sale, transferring, charging and/or in any way whatsoever interfering with Lakeview’s quiet enjoyment of property LR No.25692 –Mavoko Municipality.ii.An eviction order against Lakeview Investment Limited and its agents including demolition of the illegal structures on property LR No. 25692 –Mavoko Municipality in 90 days.iii.Lakeview Investment Limited to refund of Kshs 2,650,000/= to Al Ruhia Estates Limited.iv.The officer commanding Mlolongo Police Station to enforce order i & ii above.v.Cost of the suit awarded to Lakeview and Al Ruhia Estates Limited to be borne by Jennifer Waithira Ndege and Manwah Bwosiemo Magara 37.Dissatisfied with the above decision, the appellant, Lakeview, is before this Court challenging the said decision on the grounds that the learned Judge erred: by dismissing Lakeview’s claim for specific performance despite having fulfilled its obligations under the said Agreement; by holding that Jennifer was within her right to enter into an Agreement of Sale with Al Ruhia without having formally rescinded and/or terminated the Sale Agreement dated 22nd January 2010; by failing to hold that it was Jennifer who breached the terms of the Sale Agreement dated 22nd January 2010; by holding that the Sale Agreement dated 22nd January 2010 was unenforceable on the ground that Jennifer had not acquired an interest over the suit property at the time of its execution; by wholly condemning Lakeview by dispossessing it of the suit property despite finding that both Lakeview and the Vendors were equally in breach of the terms of the Sale Agreement dated 22nd January 2010; by failing to hold that the principle of lis pendens was applicable to this case; by holding that the Sale Agreement entered into between Lakeview and Al Ruhia was unlawful, and in the same breath finding that Lakeview was liable to refund a purported deposit of Kshs 2,650,000 to Al Ruhia when there was no claim for the said sum; by holding that Lakeview had only paid the Vendors a sum of Kshs 3,191,000 contrary to evidence to the effect that the Vendors received a total of Kshs 7,228,000 which was over and above the agreed purchase price of Kshs 5,600,00; by failing to take into consideration the purport and full meaning of the letter dated 21st June, 2011, from Mwagambo & Okonjo Advocates to Jennifer, calling for the completion documents as provided in the Sale Agreement; by disregarding the evidence adduced by Lakeview and its written submissions; and by awarding the respondent (sic) prayers/orders that they had not sought in their pleadings. 38.We heard the appeal on the Court’s virtual platform on 17th March 2026 when learned counsel, Mr Donald Owang, appeared for the appellants while learned counsel, Mr Julius Anyoka, appeared for the respondents. Counsel briefly addressed us on their respective written submissions. We must point out that although Mr Anyoka appeared for all the three respondents, the written submissions which learned counsel relied on dated 19th January 2026 were indicated to have been filed on behalf of the 3rd respondent. 39.On behalf of Lakeview, it was submitted: that Clause 10.2 of the Sale Agreement dated 22nd January, 2010 allowed Lakeview to fence the suit property upon payment of the deposit of the purchase price, while Clause 2.2 of the said agreement confirmed that the Vendors acknowledged receipt of the deposit of the purchase price; that even though Lakeview had already paid the Vendors over and above the agreed purchase price, and was at all-time ready and willing to complete the transaction in terms of the Sale Agreement dated 22nd January 2010, the Vendors had not endeavoured to avail and/or deliver the completion documents particularized at clause 4.2 of the Sale Agreement to enable Lakeview pay the balance of the purchase price, if any, in terms of clause 4.4; that vide a letter dated 22nd June 2011, the advocates acting for the parties in the transaction, M/s Mwagambo & Okonjo Advocates, issued Jennifer with a 21 days’ notice as contemplated in clause 6.2 of the Sale Agreement dated 22nd January 2010 and called upon the Vendors to avail and/or forward the completion documents in terms of clause 4.2 of the agreement; that Jennifer, who had already entered into another Sale Agreement dated 16th December 2010 with Al Ruhia for the sale of the suit property, did not comply; that the said Sale Agreement between Jennifer and Al Ruhia was entered into without having formally rescinded the agreement dated 22nd January 2010; that Al Ruhia was aware at the time that Lakeview was purchasing the suit property from the Vendors; that the suit property was transferred and registered in the name of Al Ruhia on 8th May 2012 during the active proceedings of the High Court case, contrary to the principle of lis pendens, tainting Al Ruhia's title with fraud and illegality; that it could not have subdivided the suit property without first obtaining a sub-divisional scheme approval from the County Government, which could only be obtained after the suit property had been transferred, registered, and a certificate of title issued in Lakeview's name; that the allegation by the respondents that Lakeview submitted a fake sub-divisional scheme for approval was not backed by any evidence from the relevant approval authorities; that as at the time of the alleged Sale Agreement between Jennifer and Al Ruhia dated 16th December 2010, Jennifer had obtained the necessary completion documents contemplated in clause 4.2 of the Sale Agreement dated 22nd January 2010 but intentionally refused and/or failed to deliver the same to Lakeview after Jennifer realized that she could make more money by selling the suit property to Al Ruhia; that the Vendors were therefore in substantial breach of the terms of the Sale Agreement dated 22nd January 2010; that the allegation that Al Ruhia paid Lakeview Kshs 7,000,000 was not backed by any evidence; that Al Ruhia colluded with Jennifer and hijacked the sale of the suit property to itself, knowing very well that there was a subsisting Sale Agreement between Lakeview and the Vendors that had not been rescinded by either party; 40.Regarding the claim for specific performance, Lakeview submitted: that the learned Judge erred by dismissing its claim for specific performance yet it fulfilled its obligations in terms of the Sale Agreement dated 22nd January 2010 by paying the Vendors the full purchase price; that even if the court was to find that Lakeview did not pay the full purchase price, the Sale Agreement provided that the balance of the purchase price was to be paid upon receipt of the completion documents which the Vendors did not deliver. Lakeview cited the decision in the case of Mwaura v Maina & Another Civil Appeal No. 550 of 2019 [2026] KECA 298 [KLR], where this Court noted that although the purchaser had paid a substantial amount of the purchase price, the vendor failed to release a crucial document, to wit the rates clearance certificate which was part of the completion documents. Lakeview submitted that Clause 4 of the Sale Agreement dated 22nd January 2010 clearly particularized the completion documents which Jennifer was required to avail prior to completion taking place within 180 days from the date of execution, but Jennifer neither availed any document nor issued a notice to terminate the agreement notwithstanding the fact that the agreement was subject to the Law Society Conditions of Sale. In Lakeview’s submission, pursuant to Clause 4.4 of the said Agreement, it was only bound to pay the balance of the purchase upon receipt of the completion documents, which it never received. The learned Judge, it submitted, therefore erred in finding that it was equally in breach. It prayed that the appeal be allowed, the Judgment/Decree of the High Court be set aside in its entirety and in its place, be entered judgment in its favour as per its prayers/orders sought in its amended plaint. 41.On behalf of Al Ruhia, it was submitted: that from the evidence adduced at the trial court and contrary to the terms of the operative Agreement, Lakeview failed to complete payments within the 180 day-period, making payments as late as 13th August 2010; that notwithstanding that Jennifer received the payments made on 13th August 2010, under Clause 15 of the operative Agreement, the same did not constitute a waiver of Jennifer’s right under the agreement, which included considering the contract repudiated and ultimately rescinding it; that further to Lakeview's breach in failing to complete payments towards the purchase price, as per the evidence of PW1, Lakeview had, during the term of the operative Agreement, purported to subdivide the suit property and enter into an agreement for sale of the subdivided portions to Al Ruhia herein; that, on the authority of the case of Christine Nyanchama Oanda v Catholic Diocese of Homa Bay Registered Trustees [2020] eKLR, since Lakeview was in breach of the terms of the contract dated 22nd January 2010, this Court ought to uphold the trial court's decision declining to grant specific performance and leave Lakeview to its other rights, including suing for the recovery of the sums paid to Jennifer; that the learned Judge correctly applied herself in making the decision contained in her judgment. 42.In was further submitted: that the learned Judge did not absolve Jennifer herein of wrongdoing with regards the operative Agreement, and accordingly directed Lakeview to file a fresh claim for the recovery of the sums already paid by it to Jennifer under the operative Agreement; that the operative Agreement dated 22nd January 2010, which Lakeview sought to rely on, did not confer any transferable interest to it, and therefore Lakeview's claim under it remains the recovery of the sums paid to Jennifer but cannot operate as a bar to the subsequent Agreement between Jennifer and Al Ruhia; that with Al Ruhia having completed payments under the subsequent Agreement and title having been consequently transferred to it, the learned Judge properly upheld its title to the suit property; that on the authority of the case of Marete v Ndegwa & 2 Others [2024] KECA 545 (KLR), Lakeview, having been unsuccessful in prosecuting its claim at the trial court, cannot rely on the doctrine of lis pendens, having never acquired any equitable and/or registrable interest in the suit property, either through the impugned Agreement or the operative Agreement; and that the doctrine of lis pendens operates to invalidate a purported transfer or alienation of property undertaken during the pendency of litigation where a valid proprietary interest exists, and in the absence of such interest, the doctrine cannot be invoked as a shield, nor can it confer rights that were never vested in Lakeview ab initio. 43.As to whether the learned Judge erred in law and in fact by awarding Al Ruhia prayers/orders that it had not sought in their pleadings filed before the High Court, it was submitted that the Judgement entered in the ELC Court related to a consolidated matter - Lakeview's suit in ELC No. 211 of 2011 and Al Ruhia's suit in ELC No. 156 of 2018. Al Ruhia submitted the Judgement covered both claims raised as well as determined prayers sought in each separate claim including, among others, Al Ruhia's reliefs restraining Lakeview from interfering with its enjoyment of the suit property; the eviction order sought against Lakeview as well as demolition of the illegal structures thereon; and a refund of monies paid to Lakeview by Al Ruhia. Al Ruhia urged this Court to dismiss the appeal with costs. 44.Having considered the grounds raised in this appeal as well as the submissions of counsel, it is our view that the issues for our determination are:a.Whether the appellant made out a case for specific performance.b.Whether it was proper for Jennifer to have entered into a sale agreement without rescinding the agreement between her and Lakeview dated 22nd January 2010.c.Who between Jennifer and Lakeview breached the Sale Agreement dated 22nd January 2010.d.Whether the doctrine of lis pendens was applicable to the case.e.Whether the award of Kshs 2,650,000 to Al Ruhia was deserved.f.Whether Lakeview proved that it paid the Vendors Kshs 7,228,000.g.Whether the reliefs awarded to the respondents were supported by the pleadings.h.Who should bear the costs of the appeal? 45.At the back of our minds, as we determine these issues, is the fact that, sitting as the first appellate court, our jurisdiction encompasses a reconsideration and re-evaluation of the evidence on record and drawing our own conclusions, with the caution that we neither saw nor heard the witnesses testify. We must therefore give allowance for that handicap. However, while we must accord due deference to the findings of fact by the trial court, should we be satisfied that those findings were based on no evidence, on a misapprehension of the evidence, or on wrong principles, we are entitled to interfere with such findings. (see Selle v Associated Motor Boat Co. Ltd [1968] EA 123 and Jabane v Olenja [1986] KLR 661). 46.The first issue for our determination is whether the appellant made out a case for specific performance. According to the Vendors, the reason why they decided not to proceed with the contract between them and Lakeview was because Lakeview had breached its terms by subdividing the suit property and selling it to third parties including Al Ruhia when the Agreement for Sale did not permit him to do so. Clause 10.1 of the Agreement for Sale dated 22nd January 2010 expressly stated that the Vendors were to deliver the vacant possession of the property to the Purchaser immediately upon payment of the purchase price. Clause 10.2 of the said Agreement authorised the Purchaser to fence off the property immediately upon payment of the deposit. There was no provision in the agreement that permitted Lakeview to subdivide the suit property and offer it for sale before completion of the payment of the purchase price. It is clear from the evidence of PW1 that the total purchase price of the 7 acres that Lakeview intended to purchase from Jennifer was Kshs. 5,600,000. Whereas Lakeview contended that it paid a total of Kshs7,228,000 which was more than the agreed purchase price, the evidence adduced did not satisfy the trial court to that effect. The learned Judge concluded, and we have no reason to differ, that:“From the evidence before court, I find that the Plaintiff proved that he paid the 1st Defendant Kshs 3,191,000 though DW1 and DW2 admitted to only receiving Kshs 1,991,000 and disputed receipt of Kshs1.2 million. From the Sale Agreement dated the 22nd January, 2010, the 1st and 2nd Defendants actually admitted to receiving Kshs1.2 million at the point of executing it and as a court I cannot disregard this point.” 47.Lakeview’s evidence fell short of proving that it paid or tendered the full purchase price within the completion period. 48.In the case of Andrew Kiprop Rono v Vitalis Sunguti Ligare & Another [2018] KECA 559, this Court cited Halsbury’s Laws of England, Vol. 44(1) 4th Edition – Re issue where, in tracing the origin of the remedy of specific performance, it is stated at para. 801 that:“In early times a court of equity assumed jurisdiction to compel a party to a contract to perform his part of the contract when damages recoverable at law were not an adequate remedy. The remedy of specific performance is thus in contrast with the remedy by way of damages for breach of contract, which gives pecuniary compensation for failure to carry out the terms of the contract. The remedy is special and extraordinary in its character, and the court has a discretion either to grant it or to leave the parties to their rights at law. The discretion, however, is not an arbitrary or capricious one; it is to be exercised on fixed principles in accordance with previous authorities. The Judge must exercise his discretion in a judicial manner.” 49.This Court (Makhandia, JA) in George Njenga Kagai v Samuel Kabi Njoroge & Others [2019] KECA 222 (KLR) cited Halsburys Laws of England (4th Edition) at paragraph 487 vol. 44 where it is stated 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 implication and which ought to have been performed at the date of the writ in the action. However, this rule only applies to terms which are essential and considerable. The court does not bar a claim on the ground that the plaintiff has failed in literal performance or is in default in some non-essential or unimportant term although in such cases it may grant compensation.” 50.This Court reiterated the circumstances under which the remedy would be granted in the case of Gurdev Singh Birdi & Another v Abubakar Madhubuti Civil Appeal No. 165 of 1996 [1997] KECA 89 (KLR). In that case, Gicheru, JA (as he then was) held that:“When the appellants sought the relief of specific performance of sale of the respondent’s property...they must have been prepared to demonstrate that they had performed or were ready and willing to perform all the terms of the agreement...which ought to have been performed by them and indeed that they had not acted in contravention of the essential terms of the said agreement…It cannot be gainsaid that the underlying principle in granting the equitable relief of specific performance has always been that under all the obtaining circumstances in the particular case, it is just and equitable so to do with a view to doing more perfect and complete justice. Indeed...a plaintiff must show that he has performed all the terms of the contract which he has undertaken to perform, whether expressly or by implication, and which he ought to have performed at the date of the writ in the action. However, this rule only applies to terms which are essential and considerable. Where a condition or essential term ought to have been performed by the plaintiff at the date of the writ, the court does not accept his undertaking to perform in lieu of performance, but dismisses the claim…The moment the plaintiff went into equity, and asked for specific performance, and it was proved that he himself was guilty of the breach of contract...the court of equity would refuse to grant specific performance and would leave the parties to their other rights…When the appellants came to court seeking the relief of specific performance of the agreement, they had not performed their one essential part of the agreement. Namely: payment of the balance of the purchase price of the suit property. Indeed, right up to the conclusion of the proceedings in the superior court, they had not done so. In these circumstances, no court of equity properly directing its mind to the same would have considered it just and equitable to grant them the equitable relief of specific performance of the agreement with a view to doing more perfect and complete justice”. 51.In the same case, Tunoi, JA said:“However, the appellants’ conduct has been such as to render it inequitable for specific performance to be granted...There was no evidence that prior to the filing of the suit the applicants tendered the balance of the purchase price to the respondent. This only confirms that they were never ready, able and willing to carry out their part of the contract. Secondly, the appellants simply could not raise the balance of the purchase price on or before the specified time and were in fact in breach of the agreement. Thirdly, the nature of the property and the surrounding circumstances make it inequitable to grant the relief of specific performance. The contract not having been completed within the period fixed for completion, it would be oppressive, unjust and financially injurious to require the respondent, who has not been guilty of laches nor inordinate delay, to part with his property, more than four years after the event when its current value has materially appreciated”. 52.In Nabro Properties Limited v Sky Structures Limited & 2 others (2002) 2 KLR 300 this Court was categorical that:“A party seeking specific performance must show and satisfy the court that it can comply i.e. it must be ready, willing and able to do so. In this case, there was only a mere statement that the appellant was ready to pay. That evidence could not sufficiently discharge the burden cast on the appellant.” 53.The law is that for a party to succeed in seeking the remedy of specific performance, it must be shown that the party had a legal claim in respect of the property in question. This was the position of this Court in Kukal Properties Development Ltd v Tafazzal H. Maloo & 3 others [1993] eKLR in which Muli, JA observed:“Specific performance is an equitable remedy and must flow from a legal right. The Maloos, having committed breach of their agreement, specific performance could not be legally decreed. The learned trial judge fell into error in decreeing specific performance (see Sisto Wambugu v Kamau Njuguna (1988) 1 KAR 219).” 54.As we have stated above, Lakeview did not adduce satisfactory evidence to prove that it had paid the full purchase price. In particular one wonders why after purporting to issue the completion notice, it was still remitting to Jennifer Kshs 750,000. The learned Judge found that the alleged 21 days’ completion notice dated the 21st June 2010 by Lakeview to Jennifer, to complete the Sale Agreement was given three months before it paid Jennifer Kshs 750,000 toward the purchase price on the 13th August 2010. In light of its conduct, one may well find substance in the respondents’ position that Lakeview was relying on the money paid by Al Ruhia to it in respect of the same property part of which it was then using to pay for its own purchase. We agree with the learned Judge that the remedy of Specific performance was not available to Lakeview for the reason that it had not paid the full purchase price and had proceeded to enter into transactions for the disposal of the suit property before it had the same transferred to it. Specific performance was rightly declined. 55.The next issue for determination is whether it was proper for Jennifer to have entered into a sale agreement without rescinding the agreement between her and Lakeview dated 22nd January 2010. According to the learned Judge, by the time Jennifer was selling land to Al Ruhia on 16th December 2010, the 180 days completion period for the Sale Agreement dated the 22nd January 2010 had lapsed. This was not contested. While it is true that the Sale Agreement dated the 22nd January 2010 was not properly terminated, we find that Lakeview could not insist on an agreement whose completion was not perfected due partly to its failure to fulfil its obligations thereunder. 56.As to who between Jennifer and Lakeview breached the Sale Agreement dated 22nd January 2010, we have no hesitation in finding, as did the learned Judge, that both parties were guilty of breach. Lakeview was to pay the balance of the purchase price within 180 days which it never did. On the other hand, Jennifer was bound to obtain and avail the completion documents within the same period which she failed to do. 57.As for the application of the doctrine of lis pendens, this Court explained its rationale in Naftali Ruthi Kinyua v Patrick Thuita Chege & Another, Civil Appeal No. 44 of 2014 [2015] KECA 911 (KLR), stating as follows:“Black’s Law Dictionary 9th edition, defines lis pendens as the jurisdictional, power or control acquired by a court over property while a legal action is pending. Lis pendens is a common law principle that was enacted into statute by section 52 Indian Transfer of Property Act (ITPA) - now repealed. While addressing the purpose of the principle of lis pendens, Turner L. J, in Bellamy vs Sabine [1857] 1 De J 566 held as follows:-‘It is a doctrine common to the courts both of law and equity, and rests, as I apprehend, upon this jurisdiction, that it would plainly be impossible that any action or suit could be brought to a successful determination, if alienation pendente lite were permitted to prevail. The Plaintiff would be liable in every case to be defeated by the Defendants alienating before the judgment or decree, and would be driven to commence his proceedings de novo, subject again to defeat by the same course of proceedings.’” 58.The Indian Supreme Court in the case of G.T Girish v Y. Subba Raju, Civil Appeal No. 380 of 2022 (decided on 18th January 2022), while expounding on the doctrine, stated as follows:“94.The cardinal and indispensable requirement, which flows both from Section 52 and the principle, it purports to uphold, is that the transfer or dealing of the property, which is the subject matter of the proceeding, is carried out by a party to the proceeding. Section 52 uses the word ‘party’ twice. It refers to the disability of a party to transfer or otherwise deal with the property, pending adjudication. This embargo is intertwined with the beneficiary of the veto against such transfer, being any other party thereto…” 59.In that case, the court was clear that the doctrine of lis pendens does not necessarily annul the transaction, since in its words at paragraph 93:“when a transaction is done, lis pendens or pending a case, the transaction is, as such, not annulled. The transaction is, in other words, not invalidated. In fact, as between the transferor and the transferee, it does not lie in the mouth of the transferor to set up the plea of lis pendens to defeat the disposition of property. Equally, the Principle of Lis Pendens is, not to be confounded with the aspect of good faith or bonafides. In other words, the transferee or the beneficiary of the property, which is disposed of by a party, cannot set up the case that he acted bonafide or in good faith. This enables the court and the parties in a Suit or a proceeding, which otherwise is in conformity with requirements of Section 52, to proceed in the matter on the basis that the adjudication by the court, will not, in any way, be subverted or delayed, when the day of final reckoning arrives.” 60.In our understanding, the doctrine of lis pendens runs with the suit so that its application depends on the outcome of the suit. Where the person relying on the doctrine succeeds in the suit, the doctrine may come to its aid. In that event, the transaction entered into between the other party to the suit and a third party might be set aside. The setting aside of that transaction does not, however, affect the other party’s liability to the third party. Where the party who seeks to rely on the doctrine fails in the suit, he can no longer rely on the doctrine. The court in G.T Girish vs. Y. Subba Raju (supra) held at paragraph 94 that:“In fact, the Special Bench of the Madras High Court in Manjeshwara Krishnaya v Vasudeva Mallya and Four Others, puts the Doctrine of Lis Pendens as an extension of the Doctrine of Res Judicata. Thus, the sine qua non for the Doctrine of Lis Pendens to apply is that the transfer is made or the property is otherwise disposed of by a person, who is a party to the litigation. The Doctrine of Lis Pendens, only subject (sic), however, the transfer or other disposition of property to the final decision that is rendered. A person/party, who finally succeeds in the litigation, can ask the court to ignore any transfer or other disposition of property by any party to the proceeding. This is subject to the condition that transfer or other disposition is made during the pendency of the lis..” [Underlining ours]. 61.In this case, Lakeview which sought to rely on the doctrine, failed in its suit. The doctrine was clearly of no use to it. 62.On whether the award of Kshs 2,650,000 to Al Ruhia merited, Al Ruhia had claimed, inter alia, the refund of Kshs 7,000,000 being the sum it alleged to have paid Lakeview. The learned Judge found, rightly in our view, that since it had not adduced evidence in support of this claim, it was only entitled to the sum admitted by Lakeview. In light of the admission by PW1 that Lakeview received 2,650,000 from Al Ruhia, there was no need to prove what was clearly admitted. The mere fact that a party claims a greater sum than what is eventually proved does not disentitle it to what is actually proved, as long as what is proved falls within the sum pleaded. 63.Similarly, apart from the amount admitted to have been received by the Vendors, Lakeview did not, in the suit before the trial court, adduce satisfactory evidence to prove that it paid the Vendors Kshs 7,228,000. 64.Although in its memorandum of appeal, Lakeview contended that the trial court granted reliefs which were not sought, in its submissions it did not expound on that ground and we take it that the ground was abandoned. 65.We accordingly, find no merit in this appeal which we hereby dismiss with costs to the respondents. DATED AND DELIVERED AT NAIROBI THIS 31STDAY OF JULY, 2026.S. GATEMBU. KAIRU, FCIArb, C.Arb…………………………….JUDGE OF APPEALG.V. ODUNGA…………………………JUDGE OF APPEALH.I. ONG’UDI…………………………JUDGE OF APPEALI certify that this is the true copy of the originalsignedDEPUTY REGISTRAR