https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3424

Wacira v Njeru (Suing as the legal representative of Patricia Wanjiku Joseph) (Land Case Appeal E041 of 2025) [2026] KEELC 3424 (KLR) (28 May 2026) (Judgment) Neutral citation: [2026] KEELC 3424 (KLR) Republic of Kenya In the Environment and Land Court at Embu Land Case Appeal E041 of 2025 EC Cherono, J May 28, 2026 Between Matred Mercy Kina Wacira Appellant and Jeam Mureithi Njeru (Suing As The Legal Representative Of Patricia Wanjiku Joseph) Respondent (Being an Appeal from the Judgment of the Principal Magistrate Hon. C.K Kisiangani delivered on 29th May 2025 in Runyenjes PM-ELC Case No. E008 of 2021) Judgment Introduction 1.This is an appeal by Matred Mercy Kina Wacira (hereinafter "the Appellant") against the Judgment of the Principal Magistrate Hon. C.K. Kisiangani delivered on 29th May 2025 in Runyenjes PM-ELC Case No. E008 of 2021. In that suit, the Appellant was the Plaintiff and Jeam Mureithi Njeru (hereinafter "the Respondent"), suing as the legal representative of the estate of the late Patricia Wanjiku Joseph, was the Defendant. The trial court dismissed the Appellant's claim for rescission of a land sale agreement and allowed the Respondent's counterclaim for specific performance, ordering the transfer of land parcel No. Kyeni/Kathunguri/T.12 to the Respondent. Aggrieved, the Appellant preferred this appeal raising twelve grounds substantially challenging the validity of the contract, the trial court's findings on breach, and the consequential orders made. 2.This Court sits as the first appellate court. Its duty is well settled: to re-evaluate and re-assess the evidence on record and reach its own independent conclusions, while bearing in mind that it did not have the benefit of seeing and hearing the witnesses as they testified. In the celebrated case of Selle & another v Associated Motor Boat Co. Ltd & others [1968] EA 123, the predecessor of this Court articulated these principles as follows:“An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge's findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally." 3.This principle equally applies in the Environment and Land Court sitting as an appellate court over proceedings originating from the Magistrate's Court. This Court shall be guided by the foregoing principles Issues For Determination 4.Having considered the Memorandum of Appeal, the pleadings, the evidence on record, and the written submissions of both parties, this Court identifies the following issues for determination:i.Whether the sale agreement between the parties was valid and enforceable.ii.Whether either party was in breach of the terms of the sale agreement.iii.Whether the Appellant was entitled to rescission of the sale agreement.iv.Whether the trial court erred in granting the counterclaim for specific performance.v.What orders should issue? Analysis And Determination 5.The undisputed facts establish that on 8th June 2009, the Appellant (as vendor) and the Respondent's mother, the late Patricia Wanjiku Joseph (as purchaser), executed a sale agreement in respect of land parcel No. Kyeni/Kathunguri/T.12 at a total consideration of Kshs. 175,000/=. A sum of Kshs. 160,000/= was paid upon execution as a down payment, with a balance of Kshs. 15,000/= to be paid within 90 days. Land Control Board consent was subsequently obtained, and the Appellant was provided with a copy of the title deed. 6.The Appellant now seeks to have this agreement declared null and void. However, neither in her pleadings nor in her evidence-in-chief or cross-examination did the Appellant advance any recognized legal ground for voiding the agreement. The recognised grounds for rescission or avoidance of a contract include: misrepresentation, fraud, duress, undue influence, mutual mistake, or fundamental breach. The Appellant merely complained that the balance of Kshs. 15,000/= remained unpaid. Non-payment of a balance does not ipso facto void an agreement; it constitutes a breach capable of giving rise to certain remedies, which is a separate inquiry. 7.The Appellant admitted in cross-examination that she received Kshs. 160,000/= from the Respondent's mother under the agreement. She further admitted that Land Control Board consent was obtained. A contract for the sale of land that has been executed by parties with capacity, supported by consideration, and for which statutory consent has been obtained, is a binding and enforceable agreement. The Respondent cited the case of Gurder Singh Birdi & Amor v Abubakar Madhbuti (1997) KLR in which the court emphasised the sanctity of contracts and the need for clear grounds before a court will interfere with freely entered agreements. 8.This Court agrees with the finding of the trial court that the sale agreement was valid and enforceable. There is no legal or factual basis upon which to declare it null and void. 9.The Appellant's principal complaint is that the Respondent (through his mother) failed to pay the outstanding balance of Kshs. 15,000/= within 90 days. The Respondent, on the other hand, contends that the Appellant refused to accept payment of the balance, and that the balance was ready and available. 10.On this issue, the evidence is instructive. In cross-examination, the Respondent (DW-1) stated that his mother called the Appellant severally to collect the balance but she refused. He further stated that his mother was available and ready to pay the balance but the Appellant declined to come and collect it. Crucially, these averments were not effectively controverted by the Appellant. The Appellant's case in cross-examination was that she was waiting for the balance and that no one came to pay her. She did not produce any demand letter she purportedly sent. She admitted she did not ask Patricia (the late purchaser) directly for the balance. 11.The law is clear that where a party to a contract tenders performance and the other party refuses to accept such performance without lawful justification, the refusing party cannot rely on the non-completion to claim breach by the other side. As was stated in Peter S. Muturi Karanja v Wilson Maina Wanjiku (2019) eKLR, a vendor who obstructs completion cannot thereafter turn around to allege that the purchaser has breached the agreement. 12.Furthermore, the Appellant acknowledged in her testimony that the 90-day period was agreed verbally and that the agreement itself does not specify when the transfer was to be done, only that it would follow full payment. She also stated, revealingly, that "due to the long time she could not confirm the date of consent." This demonstrates that the Appellant was aware of the passage of time and the sustained dealings under the agreement, yet she took no steps to formally rescind the agreement through a proper legal notice to the purchaser or her estate. 13.On the balance of probabilities, this Court finds that the Respondent's predecessor (the late Patricia Wanjiku) was ready and willing to pay the outstanding balance of Kshs. 15,000/= but was frustrated by the Appellant's refusal to accept the same. The primary breach therefore lies at the door of the Appellant, who refused to facilitate completion of the transaction. 14.Rescission of a contract is an equitable remedy that, once granted, operates to restore the parties to the position they were in before the contract was made. The remedy is not available as of right and is not appropriate where:(a)restitutio in integrum is impossible;(b)the applicant has contributed to or caused the very breach complained of; or(c)a third party has acquired rights under the contract. 15.In this case, the Respondent has been in possession of the suit land since the sale agreement of 2009 — a period of approximately sixteen (16) years. He has been using the property in reliance on the agreement. The consideration of Kshs. 160,000/= has long since been paid and consumed. To rescind the agreement at this stage would be deeply inequitable: it would grant the Appellant a windfall while punishing the Respondent for a breach (non-payment of a nominal balance of Kshs. 15,000/=) for which this Court has found the Appellant herself to be substantially responsible. 16.As was observed in Oweri v Kiptugen (2022) KECA 413 (KLR), equity will not come to the aid of a party who has not come with clean hands. A vendor who refuses to accept tender of the balance of the purchase price cannot then rely on that non-payment to obtain rescission of the very agreement from which she has already substantially benefited. 17.Moreover, the Appellant did not issue any formal completion notice or rescission notice to the purchaser prior to the institution of this suit. In the absence of such formal notice, the agreement remained in force and enforceable. As held in Environment and Land Case 68 of 2015, an agreement for the sale of land in the absence of a completion or rescission notice "remained in force and is enforceable subject to the law of limitation of actions." 18.This Court therefore finds that the Appellant was not entitled to rescission of the sale agreement and the trial court was correct in dismissing the prayer for rescission. 19.Specific performance is an equitable remedy that compels a party to perform its contractual obligations. Courts of equity will grant specific performance in contracts relating to land because land is regarded as unique and damages are generally inadequate to compensate for its loss. As aptly stated in the English decision cited in Environment and Land Case 73 of 2017: "And in a contract relating to the sale and purchase of land, the law takes the view that the purchaser of a particular piece of land or particular house (however ordinary) cannot on the vendor's breach obtain a satisfactory substitute, so that specific performance is available to him." 20.In this case, the following facts support an order for specific performance:a.A valid and enforceable sale agreement exists for land parcel No. Kyeni/Kathunguri/T.12.b.The Respondent's predecessor paid the overwhelming majority of the purchase price — Kshs. 160,000/= out of Kshs. 175,000/= — representing approximately 91.4% of the total consideration.c.The Respondent has been in possession of and using the suit property since 2009.d.The outstanding balance of Kshs. 15,000/= is a trivial sum relative to the total consideration and relative to the value of land at the time of this ruling.e.The Respondent remains willing and ready to pay the outstanding balance, as evidenced by his testimony. 21.The trial court correctly held that the Respondent, having substantially performed the contract and being frustrated by the Appellant's refusal to accept the balance, was entitled to an order of specific performance. As was held in Ngabia v Wachiuri & 2 others (Environment and Land Case 71 of 2020) [2026] KEELC 1499 (KLR): "where a purchaser has paid the full price and taken possession, the vendor holds the legal title only as a constructive trustee for the purchaser." While the full purchase price has not been paid here, the principle applies with equal force given the nominal nature of the balance and the Appellant's own culpability in the non-payment. 22.However, this Court notes that the order for specific performance ought to be conditioned upon payment of the outstanding balance of Kshs. 15,000/= before or at the time of transfer. The trial court appears to have ordered transfer without expressly conditioning the same on payment of the balance. This omission ought to be corrected to ensure the Appellant receives what is contractually due to her. 23.Having addressed the substantive issues, this Court makes brief observations on the specific grounds of appeal:Grounds 1 and 12 (validity of the contract and judgment being bad in law): These are dismissed. The agreement was validly constituted and the judgment of the trial court is in accordance with the law, subject to the modification noted below.Ground 2 (conditions precedent to transfer): This ground partially succeeds. The Respondent's obligation to pay the outstanding balance of Kshs. 15,000/= before transfer is a condition of the contract that must be observed. The trial court's order should be modified to expressly condition the transfer on prior payment of the balance.Ground 3 (both parties having met their obligations): This ground is dismissed. The evidence supports the finding that the Appellant was not in a position to complain of breach given her own refusal to accept the tendered balance.Grounds 4 and 9 (Appellant's remedy): These grounds are dismissed. The trial court correctly identified the applicable remedies. The Appellant, having failed to establish grounds for rescission, is not entitled to that remedy.Ground 5 (developments on the property): This ground is without merit. The Respondent's long possession and user of the property is a legitimate factor in assessing the balance of equities. Equity leans against rescission where a purchaser has been in possession for a prolonged period.Ground 6 (hardship): This ground is dismissed. The hardship that would be visited upon the Respondent by rescission — losing land held for 16 years and improvements made thereon — vastly outweighs any injustice to the Appellant, who has received Kshs. 160,000/= and is still owed only Kshs. 15,000/=.Ground 7 (damages and contradictory judgment): This ground is partly meritorious. The trial court's reasoning that damages were sufficient while simultaneously declining to award them was indeed inconsistent. However, this inconsistency does not invalidate the substantive orders. The correct position is that specific performance, not damages, is the appropriate remedy in this case.Ground 8 (finding of breach by Respondent): This ground is dismissed. This Court has found on the evidence that the Respondent's predecessor was not the party principally in breach.Ground 10 (ordering transfer): This ground is dismissed, subject to the modification that transfer be conditioned on prior payment of the balance of Kshs. 15,000/=.Ground 11 (costs): This ground partially succeeds. Given the mixed nature of this appeal and the circumstances of this case — an elderly vendor and a prolonged dispute over a modest sum — this Court considers it just and equitable to make a modified costs order as set out below. 24.In the premises, this Court makes the following orders:1.The Appeal is hereby dismissed with the following modifications to the orders of the trial court.2.The Judgment of the Principal Magistrate dated 29th May 2025 is upheld save for the following modifications.3.The order for specific performance directing the Appellant to transfer land parcel No. Kyeni/Kathunguri/T.12 to the Respondent is confirmed subject to the following terms and conditions;a.The Respondent shall, within thirty (30) days of the date of this Judgment, deposit the sum of Kshs. 15,000/= (being the outstanding balance of the purchase price) in a joint interest-earning advocate's client account to be agreed upon by the advocates of both parties, failing which the same shall be deposited with the Deputy Registrar of this Court.b.Upon confirmation of such deposit, the Appellant shall within thirty (30) days thereafter execute all necessary transfer documents and take all steps required to effect the transfer of land parcel No. Kyeni/Kathunguri/T.12 to the Respondent.c.Upon execution and delivery of transfer documents by the Appellant, the deposited sum of Kshs. 15,000/= shall be released to the Appellant.d.In the event that the Appellant refuses or fails to execute the transfer documents within the stipulated period, the Deputy Registrar of this Court is hereby empowered to execute all necessary transfer documents on behalf of the Appellant pursuant to Order 22 Rule 36 of the Civil Procedure Rules.4.Each party shall bear their own costs of this appeal.5.The costs of the original suit in the trial court shall abide by the trial court's order that each party bears its own costs.It is so ordered. DATED, SIGNED AND DELIVERED AT EMBU THIS 28TH DAY OF MAY, 2026.HON. E.C CHERONOELC JUDGE, EMBUIn the presence of;Mr Andande for the Respondent.Appellant/ Advocate absentRuth – C/A