https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4810

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT EMBU** **ELCL APPEAL NO. E003 OF 2025** **LEONARD THANJUKI WAMURUH....................................APPELLANT** **VERSUS** **ALEX ABRAHAM KINYUA.............................……….......RESPONDENT** ***(Being an appeal from the Judgement of Hon. J.W Gichimu (CM) delivered on 24/09/2024 in Runyenjes MCELC Case No. E001 of 2023)*** **JUDGMENT** 1. The Respondent herein was the Plaintiff before the trial court. By a Plaint dated 23.01.2023, he instituted a suit against the Appellant seeking, inter alia, a declaration that the Respondent is entitled to ½ acre out of the Appellant's inheritance or share in land parcel No. Kyeni/ Mufu/5997; an order of specific performance that the Appellant do transfer to the Respondent ½ an acre out of his inheritance or share out of the said land within sixty (60) days upon transmission and in default, that the Executive Officer to sign the relevant transfer documents and the Land Registrar dispense with the requirement of the original title deed. In the alternative, the Respondent sought, inter alia, a refund of the purchase price at the current market rates together with interest at court rates from the date of the agreement until payment in full; general damages for breach of contract with interest at court rates from the date of judgment; costs and interest of the suit and any other relief that this Honorable Court may deem fit to grant. 2. The Respondents case was that vide the agreement dated 30.07.2009, he entered into an agreement with the Appellant for the purchase of the Appellant's inheritance share measuring ½ acre to be excised from land parcel No. Kyeni/Mufu/5997, being part of the estate of their late father, Muru Muthanjuki, for a consideration of Kshs. 100,000/=. He averred that the agreement was initially handwritten and later typeset, with the Appellant executing both agreements. He stated that he paid Kshs. 78,500/= comprising Kshs. 45,000/= by cheque and Kshs. 33,500/= in cash, which payments the Appellant acknowledged. The Respondent contended that the sale was undertaken with the consent and blessings of their father, who was present during the meeting together with other family members. 3. He further averred that upon the sale, the Appellant vacated the land and surrendered possession to him, whereupon he took occupation and extensively developed the land by planting grevillea trees and farming it to date. He stated that before their father could actualize the subdivision of land parcel No. Kyeni/Mufu/5997 and transfer the Appellant's share to him, their father passed away. The parties allegedly agreed to await the completion of the succession proceedings so that the Appellant's share could thereafter be transferred to the Respondent. However, upon confirmation of the grant in Succession Cause No. 452 of 2014 in the matter of the estate of Muru Muthanjuki (deceased), and the Appellant being allocated his share, the Appellant refused and/or declined to transfer the same in performance of the agreement. The Respondent further stated that his application dated 16.06.2020 seeking revocation of the grant for not being provided for in the said grant was dismissed on 11.10.2022. 4. The Appellant filed a defence dated 17/07/2023 and denied the Respondents claims. 5. When the former suit came up for directions, the parties agreed to proceed with the hearing by way of viva voce evidence. 6. PW1, Alex Abraham Kinyua adopted his written statement dated 23/01/2023 as his evidence in chief. He stated that he entered into an agreement with the Appellant under which the Appellant was to sell him his share of land which he was to inherit from their father but the Appellant subsequently refused to transfer the land to him. He stated that the land was sold to him for Kshs. 100,000 but he only paid Kshs. 78,000/= which the Appellant acknowledged receiving. He stated that Appellant breached the agreement by failing to transfer the land to him and stopped talking to him. He averred that the current market price of an ½ acre of land is Kshs. 900,000/=. 7. He produced in evidence a copy of a handwritten agreement dated 29/07/2009, a copy of a typeset agreement dated 30/07/2009, a copy of a cheque for Kshs. 45,000/=, a copy of a surveyors sketch plan and the mutation form, a copy of the minutes of the family meeting held on 30/12/2008 in the presence of the late Muru Muthanjuki, a copy of an acknowledgement dated 01.01.2009 and its translation, photographs of the use and development of the suit land, a copy of grant of letters of administration and a certificate of confirmation of grant, a copy of an application dated 16/06/2020 and a copy of a ruling delivered on 11/10/2022. 8. PW2, Moses Wamuru testified that the Appellant who is his brother sold his share of his inheritance to the Respondent. He averred that the Appellant was given ½ acre of land by their father and that he expressed that he had no interest in living on the said land as he wanted to live in Siakago where he wanted to farm. The Respondent then offered to buy the land from him. 9. PW3, Justine Nyaga Wamuru adopted her written statement dated 04/07/2023 as her evidence in chief. She stated that she witnessed the sale agreement between the Appellant and the Respondent wherein the Appellant agreed to sell a portion of his inheritance to the Respondent. She stated that the agreement shows that the Appellant received Kshs. 78,500/= and that they all signed the agreement. On cross-examination, she stated that the Appellant received the cheque and the money before he signed the agreement. She stated that land parcel 5997 was not yet subdivided but anyone was settled on their own portion. That the agreement did not provide the parcel number of the land being sold. 10. PW4, Juliet Gakii testified that she was married to the Appellant. She stated that the Appellant sold his inheritance to the Respondent. 11. DW1, Leonard Thanjuki Wamuru adopted his written statement dated 11/07/2023 as his evidence in chief. He stated that he had never entered into any sale agreement of his property with the Respondent as at 30/07/2009, there was no inheritance that he could have owned as their deceased father was still alive. He stated that their father died on 22/10/2010 and therefore he could not sell land that he did not have. He averred that the two sale agreements do not mention the deceased’s name or the land to be sold. On cross-examination, he stated that their father had not shown his children where to live before he died. That he was not utilizing any of part of land parcel No. 5997. He averred that the Respondent had given him a loan but he did not have the loan agreement. 12. He produced in evidence a copy of the judgement in succession cause No. 452 of 2014. 13. DW2, Nancy Iveti adopted her written statement dated 17/05/2023 as her evidence in chief. She stated that it was not true that there was a family meeting to discuss the sale of land between the Appellant and the Respondent. On cross-examination, she stated that the Respondent was the one currently utilizing land parcel No. 5997. That she was not present when the parties executed the agreement. 14. The trial court in its judgement was satisfied that the Appellant entered into the sale agreement with the Respondent however, the Appellant at the time did not have land to sell as the land still belonged to their father who was still alive. The court found that in the circumstances, orders of specific performance could not be granted. The court however found that the Respondent was entitled to a refund of the money paid to the Appellant and entered judgement in favour of the Respondent in the sum of Kshs. 78,500/= with costs and interest at court rates. 15. The Appellant was aggrieved by the impugned decision and preferred the present Appeal on the grounds summarized as hereunder; 16. That the learned trial magistrate erred in fact and in law by failing to give the concise statement of the case, the points for determination and reasons for his decision in his judgment delivered on 24/09/2024. 17. That the learned trial magistrate erred in fact and in law by failing to find that the Respondent did not prove his case on a balance of probability and /or the standards required of him. 18. That the learned trial magistrate failed to appreciate that there were two identical agreements of different character, age and identities which could not be treated as one agreement or complement each other. The Appellant also challenged the validity of the sale agreements, contending that they were made under a common mistake as to the existence of the subject matter, lacked the essentials of a valid contract including offer and acceptance, and witness signatures. 19. That the learned trial magistrate erred in law and fact by overturning the Embu High Court ruling over the same sale agreement, the subject herein which declared it null and void. 20. That the trial magistrate erred in fact and in law in giving undue weight to the Respondent’s evidence. 21. The Appellant sought to have the appeal allowed with costs and the judgement and or decree dated 24/09/2024 be reviewed and or set aside. 22. When the appeal came up for directions, the parties agreed to canvass the appeal by way of written submissions. 23. The Appellant filed submissions dated 25/11/2025 and supplementary submissions dated 01/04/2026. He submitted that the sale agreement relied on by the Respondent was unsigned, undated, unclear and unenforceable. He averred that the Respondent failed to prove that he paid the purchase price of Kshs. 78,000/=. 24. The Respondent filed submissions dated 08/12/2025 through the firm of Rutere & Company Advocates. He submitted that the trial court had jurisdiction to award such reliefs as it deemed fit for breach of contract as donated to it by section 42(3) of the Land Act which provides that; “the court may grant relief on such terms as it considers appropriate, including relief for breach of any term or condition of the contract that is not capable of being remedied.” He averred that he was entitled to a refund of the total purchase price of Kshs. 78,000/= and the difference of the purchase price paid at the time of contracting and the proposed current value of the land. 25. Having considered the record of appeal and the parties’ submissions, the issue for determination is whether the appeal has merit. 26. The Respondent's case was that he purchased the Appellant's inheritance share measuring ½ acre out of Land Parcel No. Kyeni/Mufu/5997 pursuant to the sale agreements dated 29.07.2009 which agreement was handwritten and the typed agreement dated 30.07.2009. The Appellant denied entering into any such agreements and contended that they were unenforceable because at the time, the suit land belonged to their father who was still alive, and he therefore had no land or interest capable of being sold. The Respondent produced the sale agreements which showed acknowledgement of payment by the Appellant and called witnesses who testified that the Appellant had agreed to sell his anticipated share of the land. 27. However, it is not in dispute that, at the time the agreements were executed, the Appellant had no proprietary interest in the suit land as it was still registered in the name of their father. Consequently, the Appellant lacked the capacity to dispose of the land, and the sale agreements were therefore null and void ab initio. The Respondent however, proved that he paid the Appellant Kshs. 78,500/= pursuant to the agreements, and the evidence on record shows that the Appellant acknowledged receipt of the said sum. Since the agreement could not be enforced, the Appellant has no legal basis to retain the money paid thereunder. I therefore find that the trial court properly declined to grant specific performance but rightly ordered a refund of Kshs. 78,500/=. 28. In the end, I am not persuaded that the appeal discloses any basis upon which this Court can interfere with the judgment of the trial court. The appeal is therefore dismissed with costs to the Respondent. DATED, DELIVERED AND SIGNED AT EMBU THIS 23RD DAY OF JULY, 2026. ……………………………. HON. E.C CHERONO ELC JUDGE, EMBU In the presence of; 1. Mr Rutere for the Respondent 2. Applicant – Present 3. Ruth – Court Assistant