https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4040

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT NAIROBI** **ELC CASE NO. E084 of 2023** **MICHEAL GHILAY ABRAHAM……………………………………PLAINTIFF** **=VERSUS=** **LORDSHIP AFRICA FUND MANAGEMENT LIMITED …….1ST DEFENDANT** **KAREN HILLS LIMITED ……………………………………… 2ND DEFENDANT** **JUDGEMENT** 1. The Plaintiff instituted this suit vide a Plaint dated 19th September 2023 seeking the following orders: 1. ***An order directing the Defendants to transfer the suit property to the Plaintiff upon payment of the balance of the Purchase price.*** 2. ***A declaration that the completion Notice dated 21st July 2023 and the ensuing termination and/or rescission notice are unjustified, unlawful hence null and void.*** 3. ***In the alternative and without prejudice to the aforegoing, a refund of all monies paid by the Plaintiff towards the purchase price with interest at prevailing commercial rates from the date of filing suit until full payment.*** 4. ***Costs of this suit.*** 2. The 1st and 2nd Defendants filed a joint Statement of Defence dated 28th October 2023 denying the Plaintiff’s claim. 3. The Plaintiff filed a Reply to Defence dated 5th November 2023 in which he reiterated the contents of the Plaint. **THE PLAINTIFF’S CASE** 1. The Plaintiff Michael Ghilay Abraham testified as PW1 and the sole witness in support of his case. He adopted his witness statement as his evidence-in-chief. He also produced documents in the list as his exhibits 1-13. 2. PW1 testified that in August 2021, he discovered the Defendants' digital marketing platform advertising plots for sale in L.R 195/228, Karen, and was subsequently introduced to the property by the Defendants' sales representative. He informed the Court that he settled on Plot No. 36 and negotiated a purchase price of Kshs. 51,000,000/= for the plot, along with a further Kshs. 1,000,000/= for one share in the 2nd Defendant Management Company. The sale agreement was drafted by the Defendants' advocates and forwarded to the Plaintiff's advocates for execution on 14th February 2022. He signed it promptly and returned it on 22nd February 2022. By the date of signing, he had already paid the Defendants a total of Kshs. 8,000,000/= and made a further payment of Kshs. 2,000,000/= on that date. 3. He further testified that despite numerous requests, the Defendants' advocates never returned the duly executed counterpart of the agreement to him. He stated that he later sought an audience with the Defendants due to a decline in his business, which had rendered him unable to raise the remaining balance of the purchase price within the stipulated timeframe, to determine whether the transaction remained viable and to request additional time to settle the outstanding amount. 4. He asserted that the Defendants informed him he could continue making payments while sourcing financing from his bank, which he understood to imply that the completion period had been made flexible. Based on this understanding, he made an additional deposit of Kshs. 4,840,000/= on 1st February 2023 and engaged Stanbic Bank in an effort to secure financing for the remaining balance. He stated that although the bank was willing to provide financing within a short period, it was unable to proceed because the Defendants once again failed to provide the executed sale agreement. 5. He testified that on 26th July 2023, the Defendants purportedly issued a 21-day completion notice via WhatsApp, to which his advocates responded, citing the continued absence of the executed agreement. It was only on 18th August 2023, by which time the notice period had already lapsed, that the 1st Defendant forwarded a copy of the signed sale agreement by email. He contended that having received the Defendants' authorisation to continue making payments and to seek bank financing, the Defendants could not thereafter rely on the long-elapsed contractual completion date of 22nd July 2022, and that the issuance of a completion notice or rescission notice on that basis was accordingly premature. 6. In conclusion, he urged the Court to grant the orders sought in the Plaint. 7. In cross-examination, he confirmed that he signed the letter of offer on 19th January 2022 and accepted its terms, including the completion date of 10th July 2022 and the agreed mode of payment, with a 17% penalty for late payment. He admitted that he had not settled the purchase price by the completion date, having paid Kshs. 15,000,000/= of the Kshs. 52,000,000/= purchase price. He stated that the parties had agreed on a payment schedule and that he had ultimately paid Kshs. 14,840,000/= in total, and denied being in default, attributing the shortfall to the unresolved issue over the completion notice. 8. He argued that the purchase was not subject to finance under Clause 3 of the agreement, but explained that he had a special arrangement with his bank that required sight of the signed contract before releasing funds, which the Defendants refused to provide. He denied using the suit property as collateral, stating he held alternative collateral, although he admitted he had not produced the title to it. 9. He further testified that he received the completion notice via WhatsApp on 26th July 2023, while his advocates received it on 27th September 2023. He maintained that he had made all payments without ever receiving the executed agreement and denied ever defaulting. He stated that the bank had approved an advance of Kshs. 37,000,000/= subject to production of the duly executed contract and a valuation report, and that he had no means of knowing the agreement had been signed by the Defendants prior to 24th August 2023. He maintained that if the signed contract had been made available to him, he would have settled the outstanding balance, and that he had never communicated any intention to cancel or withdraw from the letter of offer. **THE DEFENDANT'S CASE** 1. The Defendants called one witness in support of their case. DW1 Sharon Mwihaki Njoroge, the Deputy Director for Business Development and Marketing of the 1st and 2nd Defendants, adopted her witness statement as her evidence in chief. She also produced the documents in the list dated 25th October 2023 in support of their case. 2. DW1 confirmed that the Plaintiff had expressed interest in the suit property and that the parties’ negotiated terms were captured in a Letter of Offer dated 19th January 2021, which the Plaintiff accepted. She further testified that the aggregate consideration was Kshs. 52,000,000/= and that any default or withdrawal after signing the sale agreement would result in the forfeiture of twenty per cent of the purchase price. She stated that the terms were shortly thereafter formalised into an Agreement for Sale dated 22nd February 2022, signed by the Plaintiff on that date and forwarded to the Defendants' lawyers for stamping, with a completion date set for 10th July 2022. She explained that by the completion date, the Plaintiff had paid Kshs. 14,840,000/-, leaving an outstanding balance of Kshs. 37,160,000/=. 3. She attributed the delay in providing the stamped counterpart to an inadvertent error by the Defendants' lawyers, stating that the Defendants had proceeded on the understanding that the Plaintiff already held a copy of the signed agreement, and that the first request for the same was received from the Plaintiff's advocate on 24th April 2023, more than a year after execution. She explained that the stamped counterpart was eventually issued by email on 24th August 2023. 4. She denied that any officer of the Defendants had represented to the Plaintiff that the completion period would be extended upon further payment, maintaining that the completion date was never varied and that Clause 4(b) of the Agreement for Sale required any such variation to be by mutual written consent. She further averred that the sale was not conditional on bank financing, that no such term was included in the agreement, and that the Defendants were not privy to any arrangement between the Plaintiff and his financier. She argued that if the Plaintiff had a genuine intention to secure financing, he would have invoked Clause 4(b) and sought an extension before the completion period lapsed, but he did not. 5. She testified that the completion notice, dated 21st July 2023, was served by email in accordance with Special Condition Clause K(b)(i) of the Agreement for Sale, which deems notices sent before 5:00 p.m. as delivered on the same day. She argued that the notice was additionally forwarded via WhatsApp only after the Plaintiff failed to respond to the email. She maintained that the Plaintiff had not denied being in default, but had instead sought to portray the Defendants unfavourably to avoid his contractual obligations. She insisted that the Defendants, not the Plaintiff, had been prejudiced by the Plaintiff's conduct in remaining in default for more than a year beyond the agreed completion date while seeking accommodation. 6. In cross-examination, she admitted that she had no record of any letter returning the executed sale agreement to the Plaintiff and agreed that it was necessary to do so, while maintaining that the Defendants believed this had been done. She confirmed that the request for a soft copy of the agreement was received via email, and that the signed and stamped version was sent to the Plaintiff on 24th August 2023. 7. She reiterated that the Plaintiff was aware that the completion date was 10th July 2022, that the 21-day completion notice period had lapsed by the time the executed agreement was forwarded, and that there had been no written communication with the Plaintiff prior to the issuance of the completion notice. She acknowledged that a bank could not authorise substantial sums without supporting documentation, and confirmed that the rescission letter of 7th September 2023 followed the Plaintiff's failure to settle the outstanding balance pursuant to the earlier notice to complete. 8. In re-examination, DW1 maintained that the sale agreement had been initialled by the Plaintiff and signed and witnessed by an advocate, and that no completion date other than 10th July 2022 applied. She confirmed that the last payment received from the Plaintiff was on 1st February 2023, after the completion period had lapsed, and reiterated that the Defendants understood the Plaintiff to be in possession of the executed agreement until his advocate's request of 24th April 2023. 9. After the hearing concluded, the parties agreed to file and exchange written submissions. **THE PLAINTIFF’S SUBMISSIONS** 1. The Plaintiff filed his submissions dated 15th January 2026. 2. On behalf of the Plaintiff, Counsel submitted that the suit arose from a rescission notice issued to the Plaintiff on 7th September 2023, based on the completion notice of 21st July 2023, and identified the issues for determination as, first, whether the Completion Notice and the subsequent Rescission Notice were valid given the unreturned Sale Agreement, and second, the remedy to which the Plaintiff was entitled. 3. Counsel outlined the contractual background, submitting that the parties' negotiations for Plot No. 36, a half-acre portion of Title No. LR 195/228, Karen, culminated in a Letter of Offer dated October 2021 reflecting a purchase price of Kshs. 52,000,000/= payable in instalments and expressed on its face to be "subject to contract." Counsel drew attention to Clause 4 of the Letter of Offer, which required the execution of the Sale Agreement within fourteen days. Counsel submitted that by the time the Plaintiff returned the duly executed Sale Agreement on 22nd February 2022, he had already paid Kshs. 10,000,000/= towards the purchase price. Counsel further submitted that despite numerous requests, the Defendants never returned the duly executed Sale Agreement to the Plaintiff. 4. Counsel submitted that no new completion notice was issued after the delay in forwarding the executed Sale Agreement. Instead, the Defendants proceeded directly to issue the Rescission Notice of 7th September 2023, claiming to forfeit the entire sum of Kshs. 14,840,000/= paid by the Plaintiff. 5. Counsel submitted that the Plaintiff had at all times been ready, willing and able to proceed, and required the return of the executed Sale Agreement for two specific reasons: first, as confirmation of a binding contract and the Defendants' own willingness to be bound, without which the Plaintiff was reluctant to advance further payment; and second, by his bank required the agreement as supporting documentation for disbursing funds exceeding Kshs. 1,000,000/-. This was in compliance with Central Bank regulations made pursuant to the Proceeds of Crime and Anti-Money Laundering Act, 2009, which require financial institutions to verify the source and purpose of large transactions. Counsel submitted that the Defendants' continued failure to return the agreement directly impeded the Plaintiff's ability to proceed. 6. Counsel submitted that the Defendant was at fault for the non-performance, having admitted to receiving the executed Sale Agreement but failing to return it despite repeated requests, and having issued the Completion Notice without doing so. Counsel submitted that the Letter of Offer could not substitute the Sale Agreement in securing the balance of the purchase price, because it was only valid for fourteen days and was "subject to contract," and that, in any case, its utility had already been exhausted in procuring the initial deposit. Based on this, Counsel submitted that the Plaintiff could not reasonably be expected to make further substantial payments without confirmation that the Defendants still remained bound to the transaction. 7. Counsel accordingly submitted that the Completion Notice was issued prematurely and therefore invalid. Consequently, Counsel argued that the resulting Rescission Notice was also invalid and lacked legal effect. Counsel also argued that the Defendant was not entitled to retain the sum of Kshs. 14,840,000/= due to an invalid completion and rescission process. In support, Counsel relied on **Boniface Kevin Omondi & another v Marlborough Properties Ltd [2015] eKLR** to submit that a party issuing a completion or termination notice must be ready, able and willing to complete as at the date of that notice, citing the approving reference therein to the English Court of Appeal's decision in **British and Commonwealth Holdings PLC v Quadrex Holdings Inc (1989) 3 All ER 492** on readiness, willingness and ability to complete as a precondition to a valid completion notice. 8. Counsel submitted that the present circumstances were analogous, that the party responsible for the stalemate could not be permitted to retain the upper hand in the transaction, and that forfeiture of the deposited sum in such circumstances amounted to unjust enrichment. In conclusion, Counsel urged the Court to grant the orders sought in the Plaint. **THE DEFENDANT’S SUBMISSIONS** 1. The Defendant filed its submissions dated 23rd February 2026. 2. On behalf of the 1st and 2nd Defendants, Counsel outlined the following issues for the court’s determination: *a) Whether a valid and binding agreement came into existence upon execution on 22nd February 2022 or remained inchoate pending return of the stamped counterpart;* *b) Whether the Plaintiff was in repudiatory breach by failing to pay the balance of the purchase price by the contractual completion date;* *c) Whether the Completion Notice of 21st July 2023 was validly issued and served;* *d) Whether the Defendants were entitled to rescind and forfeit the deposit; and* *e) What remedy, if any, the Plaintiff was entitled to.* 1. On the question of contract formation, Counsel submitted that Section 3(3) of the Law of Contract Act requires only writing, signature and attestation for enforceability, all of which were satisfied upon execution by both parties on 22nd February 2022, and that the Plaintiff had at no point disputed the existence or execution of the agreement. Counsel relied on **Njoroge v Maina[2023] KEELC 20293(KLR)** to submit that an agreement identifying the property, setting out consideration, and duly executed by the parties, satisfies Section 3(3) and is binding. 2. Counsel submitted that stamping is merely a fiscal formality under the Stamp Duty Act and not a requirement for a binding agreement between the parties. Counsel contended that the Plaintiff was estopped from denying the validity of the agreement, having made substantial payments after execution, pursued bank financing, and protested the Completion Notice without ever repudiating the contract. 3. Counsel cited **Gurdev Singh Birdi & another v Abubakar Madhbuti[1999] eKLR** to submit that a party who has acted upon and benefited from a contract cannot deny its validity due to minor formal defects. Counsel submitted that the delay in forwarding the stamped copy caused no prejudice, breach, and was merely an administrative formality, especially since the Plaintiff's own request for the document was not made until April 2023. Counsel cited the Supreme Court's decision in **Dina Management Limited v County Government of Mombasa & 5 others[2021] KESC 16** to submit that courts cannot rewrite contracts due to inaction. 4. Regarding the issue of breach, Counsel submitted that Special Condition B of the Agreement expressly excluded the sale from being subject to financing, rendering the Plaintiff's reliance on difficulties securing funds from Stanbic Bank not only irrelevant but a direct breach of the agreed terms. Counsel further submitted that the Plaintiff's continued payments for over a year without the stamped counterpart undermined any suggestion that the document was indispensable to performance, and that nothing prevented the Plaintiff from tendering the balance into court, furnishing a bank guarantee, or placing funds in escrow, none of which was done. 5. Counsel relied on a series of authorities, including **Abdi v Fondo *[2023] KECA 821,* Ndungu & 2 others v Ruigu & another *[2022] KEELC 13270,* Centre Park Plaza Ltd v Rural Housing Estates Ltd*,* Mureithi t/a PK Mureithi & Co Advocates v Kibe & Another*,* Ngoi v Kariuki *[2024] KEELC 13377,*** and**Onyancha & Another v Lagat *[2025],*** to submit that a purchaser seeking specific performance must demonstrate actual readiness and ability to complete, including tendering or securing the balance of the purchase price, and that a purchaser who has not paid the full price is undeserving of equitable relief, as equity does not assist a party who comes with unclean hands. 6. Regarding the validity of the Completion Notice, Counsel submitted that Special Condition D(i) of the Agreement permitted a 21-day notice on default, that it was served through a permitted mode under Special Condition K, and that it was issued only after a year of forbearance, in compliance with Condition 19 of the Law Society Conditions of Sale. Counsel relied on **Marete v Ndegwa & 2 others[2024] KECA 545**, which in turn approved **Housing Company of East Africa Limited v Board of Trustees National Social Security Fund & 2 others[2018] eKLR** and the Jamaican authority **J.T.M. Construction & Equipment Ltd v Circle B. Farms Ltd**, for the principle that where time has been made of the essence, failure to complete within the notice period is a breach entitling the aggrieved party to rescind, and on the House of Lords decision in **Stickney v Keeble** on the reasonableness of time so limited. 7. Counsel further relied on **Lomoro v Spring Hillpark Limited [2023] KEELC 19144** and **Njamunyu v Nyaga (1983) KLR 282,** as applied in **Elijah Kipkorir Barmalel & another v John Kiplagat Chemweno & 3 others *[*2010] eKLR,** to submit that a vendor may rescind once a default notice has been issued and not rectified within a reasonable time. Counsel distinguished the Plaintiff's authority, **Boniface Kevin Omondi & another v Marlborough Properties Ltd *[2015] eKLR***, on the grounds that it concerned a vendor who had not completed construction or delivered documents, amounting to a fundamental breach, whereas the Defendants here were ready to complete and the only outstanding matter was a minor, non-fundamental stamping delay. 8. Regarding forfeiture, Counsel submitted that Special Condition D(c) of the Agreement expressly entitled the Vendor to twenty per cent of the purchase price as liquidated damages upon rescission. Counsel argued that such forfeiture was justified by genuine loss resulting from the immobilisation of a high-value property in Karen for over a year, lost opportunity, holding costs, and market exposure. Counsel relied on **Ayub Ndungu v Marion Waithera Gacheru *[2006] eKLR and* Karanja Mbugua & Mary Anne Mwendwa Mwiti v Marybin Holding Co. Ltd*, ELC Suit No. 106 of 2012***, for the principle that the refund of a deposit depends on the terms of the contract, and that where the contract confers an express right of forfeiture upon non-performance, the deposit serves as security for performance and is properly forfeited. 9. Counsel concluded that the Plaintiff's case was self-defeating, since his continued payments and financing pursuits proceeded without the stamped agreement and despite the non-financing clause, demonstrating that the document was not in fact indispensable to performance, and that his protests were never accompanied by settlement of the outstanding balance. Counsel urged the court to find the Plaintiff's breach fundamental and the Defendants' conduct unimpeachable, and prayed that the suit be dismissed with costs and the rescission and forfeiture be affirmed. **ANALYSIS AND DETERMINATION** 1. Having considered the pleadings, the evidence on record, and the submissions of the parties, the following issues arise for determination: a*) Whether the sale agreement was valid and legally binding on the parties;* *b) Whether the Defendant lawfully issued the notice to complete and the notice to rescind the sale agreement.* *c) Whether the Plaintiff is entitled to specific performance; and* *d) Whether the Plaintiff is entitled to a refund of the monies paid towards the purchase price.* **WHETHER THE SALE AGREEMENT WAS VALID AND LEGALLY BINDING ON THE PARTIES** 1. Section 3 of the law of contract provides as follows: ***No suit shall be brought upon a contract for the disposition of an interest in land unless—*** ***the contract upon which the suit is founded—*** ***i) is in writing;*** ii)***is signed by all the parties thereto; and*** iii) ***the signature of each party signing has been attested by a witness who is present when the contract was signed by such party*** 1. The sale agreement between the parties is in writing, it has been signed by the parties, and it is attested by witnesses. It is well established that a contract can be invalidated due to mistake, illegality, fraud, incapacity, or lack of mutual consent. None of these vitiating factors have been pleaded or proven by the Plaintiff. The delay in providing the fully executed agreement, according to the evidence, was caused by an oversight on the part of the Defendants' advocates rather than a defect in the formation of the contract itself. The Court finds that the agreement for sale is valid and binding on the parties. **WHETHER THE DEFENDANT LAWFULLY ISSUED THE NOTICE TO COMPLETE AND NOTICE TO RESCIND THE SALE AGREEMENT** 1. It is not in dispute that the parties entered into a sale agreement dated 22nd February 2022 for the sale of the suit property. The agreed purchase price was Kshs 51,000,000/- together with an additional Kshs 1,000,000/- for one share in the 2nd Defendant’s Management Company. In this regard, the Defendant produced an agreement for the sale of the suit property between the parties herein. The plaintiff contended that, through his advocates, he executed the sale agreement and forwarded it to the vendor's advocates on 22nd February 2022 for execution, but the vendor failed to return it despite numerous requests. It is also not in dispute that the Defendant furnished the Plaintiff with a copy of the executed agreement on 24th August 2023. 2. In light of the foregoing, the Plaintiff seeks a declaration that the Completion Notice dated 21st July 2023, together with the subsequent recission notice, is unlawful. 3. Clause 4 of the agreement for sale provides as follows: ***a) The Completion Date shall be on or before 10 July 2022 or any other date as the Parties hereto may agree, in writing,*** ***b) The Parties may agree to vary the Completion Date by mutual written consent.*** ***c) Completion shall take place at the offices of the Vendor's Advocates unless otherwise agreed in writing by the parties.*** 1. It is also not in dispute that the Plaintiff did not complete payment of the purchase price within the stipulated time of completion. It is not in dispute that as of that date, the Plaintiff had paid 14,840,000/- out of the KShs 52,000,000/- 2. The Plaintiff’s explanation is twofold: firstly, the Plaintiff asserts that the Defendant orally assured him that he could continue making payments while seeking financing, and that such assurance led him to believe that the completion period had become flexible. Secondly, he asserts that the Defendants failure to provide him with a signed copy of the agreement hindered the disbursement of an approved loan facility. 3. The Court has considered the evidence regarding the alleged oral extension. The Defendant expressly denied the alleged engagement. Apart from the Plaintiff’s testimony, no other evidence was tendered to prove that the parties mutually agreed to vary the completion period. 4. More importantly, clause 4 of the sale agreement provides that any variation must be effected/made by mutual written consent of the parties. No variation or other cogent evidence of such mutual agreement was presented. In light of the foregoing, I find that the Plaintiff has failed to prove that the completion period was extended. 5. The payment of Kshs 4,840,000/= on 1st February 2023, after the expiry of the completion period, although indicative of the Plaintiff’s intention to proceed with the transaction, cannot by itself vary the express terms of the agreement. This Court cannot imply a variation where the parties had expressly stipulated the manner in which the agreement could be varied. 6. The notice rescinding and terminating the agreement for sale is dated 7th September 2023. The termination was to take effect immediately. The Plaintiff contends that the notice is unlawful. 7. It is well established that a court cannot rewrite contracts for parties. In **National Bank of Kenya Ltd vs. Pipe Plastic Samkolit (K) Ltd [2011] eKLR** the Court of Appeal held that: ***“A court of law cannot rewrite a contract between the parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded and proved.”*** 1. Similarly, in **Pius Kimaiyo Langat vs. Co-operative Bank of Kenya Ltd [2017] eKLR** the Court of Appeal similarly stated that: - ***“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.”*** 1. The Court, however, finds merit in the Plaintiff’s complaint regarding the executed agreement. The Plaintiff produced a letter dated 19th April 2023 from his financier, Stanbic Bank, demonstrating that a loan facility had been approved and that one of the conditions precedent to disbursement was the provision of a signed, stamped, and advocate-certified copy of the sale agreement. The Defendant admitted that it never furnished the Plaintiff with the executed agreement. The evidence establishes that the Defendant’s omission contributed to the Plaintiff’s inability to access the approved financing. The Defendant cannot absolve itself from responsibility for the Plaintiff’s failure to complete the transaction. 2. Nevertheless, the Court must give effect to the terms freely agreed upon by the parties. Equity cannot override clear contractual terms. 3. Since there was no variation in the completion period and the Plaintiff admitted to failing to complete payment within the stipulated time, the Defendant was entitled to invoke the contractual remedies available upon default. Accordingly, the Court finds that the notice to rescind was not unlawful. **WHETHER THE PLAINTIFF IS ENTITLED TO SPECIFIC PERFORMANCE** 1. The Plaintiff seeks the equitable remedy of specific performance, which is an order compelling the Defendant to transfer the suit property upon payment of the remaining balance of the purchase price. 2. Specific performance is an equitable remedy that compels a party to perform its contractual obligations. In **Reliable Electrical Engineers Ltd vs Mantrace Kenya Limited (2006) eKLR,** the Court held that; ***“Specific performance, like any other equitable remedy, is discretionary, and the Court will only grant it on well-established principles.”*** 1. The remedy is discretionary and is granted where the applicant demonstrates readiness and willingness to perform the contract and where the contract remains capable of performance. 2. In the matter at hand, the agreement for sale meets the requirements set out in Section 3 of the law of contract. The Court has found that the Defendant’s failure to provide the executed agreement contributed to the Plaintiff’s inability to secure financing. The Court has also found that the completion period expired without a valid variation to the agreement, and that the contract was subsequently rescinded in accordance with its terms. 3. In the matter at hand, to grant specific performance would be tantamount to rewriting the parties' contract by extending the completion period notwithstanding the absence of any agreed variation. While the Defendant’s conduct is deserving of censure, equity follows the law and cannot be invoked to defeat express contractual provisions freely agreed upon by the parties. In the absence of a valid variation of the completion period, the court cannot compel the performance of a contract that had already lapsed in accordance with its express terms. The court finds that the Plaintiff is not entitled to specific performance. **WHETHER THE PLAINTIFF IS ENTITLED TO THE MONIES PAID TOWARDS THE PURCHASE PRICE** 1. It is not in dispute that the agreed purchase price for the suit property was Kshs 51,000,000/-. The Plaintiff paid substantial sums towards the purchase price. The record shows that the Plaintiff paid a total of Kshs 14, 840,000/- towards the purchase price. The Defendants have not demonstrated that they are entitled under the agreement to retain all of the monies paid by the Plaintiff despite non-completion. 2. The Court further finds that the Defendant admitted failure to furnish the Plaintiff with an executed copy of the agreement materially contributed to the Plaintiff’s inability to access the approved loan facility. In the circumstances, it would be inequitable to permit the defendant to retain both the suit property and the monies paid by the plaintiff. Retention of both the land and the purchase monies would amount to unjust enrichment. Based on the foregoing, I find that the plaintiff is entitled to a refund of all the monies paid towards the purchase price. 3. In the result, the court makes the following orders; a***) The prayer for a declaration that the completion notice and the subsequent notice of rescission were unlawful is dismissed.*** ***b) The prayer for specific performance compelling the transfer of the suit property is declined.*** ***c) The refund of all monies paid.*** ***d) The Defendant shall refund to the Plaintiff the sum of Kshs 14,840, 000/ together with interest at court rates from the date of filing the suit until payment in full.*** ***e) Each party shall bear its own costs.*** **RULING SIGNED, DATED, AND DELIVERED VIA MICROSOFT TEAMS THIS 24TH DAY OF JUNE 2026** **…………………………………….** **HON. T. MURIGI** **JUDGE** **IN THE PRESENCE OF**: Ms Njoroge for the Plaintiff Lumumba for the Defendant Ahmed – Court assistant