https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4009

***REPUBLIC OF KENYA*** ***IN THE ENVIRONMENT AND LAND COURT AT NAROK*** ***ELC CASE NO. E009 OF 2023*** ***MORIASO OLE KINDI …………………………………………. PLAINTIFF*** ***VERSUS*** ***HIGHPORT MERCHANTS LIMITED ……………………. DEFENDANT*** ***MM GITONGA ADVOCATES LLP ……………… INTERESTED PARTY*** ***JUDGMENT*** 1. The Plaintiff herein ***MORIASO OLE KINDI,*** instituted this suit vide a Plaint dated ***29th September 2023,*** in respect of land parcel number ***CIS MARA/OLDONYO RASHA/148, 357, 360, 361 and 365*** (hereinafter referred to as “the **Suit Properties**”) against the Defendants. 2. The Plaintiff averred that at the time of sale transactions relating to the Suit Properties, the Defendant and himself were represented by the Law Firm of the Interested Party (***MM GITONGA ADVOCATES LLP)***; and that on ***23rd June 2021***, he and the 1st Defendant entered into a Sale Agreement to purchase the suit properties from him for a total consideration sum of ***Kshs. 87,000,000/=****.* 3. According to the Plaintiff, the agreement provided that the sale of the suit properties was conditional upon full payment of the purchase price by the 1st Defendant; the 1st Defendant was required to pay an initial deposit of ***Kshs. 5,000,000/=***;thereafter clear all charges over the suit properties before remitting any balance due to the Plaintiff; that the Plaintiff would deliver all completion documents upon receipt of all payments due to him; and that time was of the essence, with completion to occur within ninety (90) days from ***23rd June 2021***. 4. The Plaintiff further averred that pursuant to the said Sale Agreement and upon receipt of the deposit, he duly performed his obligations and released the original title documents and relevant discharge documents to the Interested Party. 5. The Plaintiff claimed that the Defendant breached the agreement by: 6. ***failing to clear the outstanding loan owed to Equity Bank; and*** 7. ***by failing to remit the balance of the purchase price after settlement of the loan liabilities***. 8. The Plaintiff averred that due to the said breach by the Defendant, he consequently issued a completion notice dated ***14th August* *2023,***requiring the Defendant to complete the transaction within ***21 days***, failing which he would enforce his contractual rights. 9. The Plaintiff contended that despite service of the completion notice, and a notice of intention to sue, the Defendant failed and/or refused to comply, thereby causing the agreement to stand rescinded in accordance with ***Clause 7*** thereof. 10. The Plaintiff further averred that, in an effort to resolve the dispute amicably, vide a letter dated ***11th August 2023***, he proposed that all monies paid by the Defendant towards the loan liabilities be refunded upon confirmation of the amounts paid, while the Plaintiff would retain the deposit of **Kshs. 5,000,000/=** in accordance with the agreement. 11. The Plaintiff averred that the Interested Party, acting on behalf of the Defendant, responded by letter dated ***8th September 2023,*** alleging that the Plaintiff’s spouse had stopped the transaction, and refused to grant spousal consent, that completion documents had not been issued, that restrictions had been registered against the properties, and that the Plaintiff had lodged a criminal complaint regarding the title documents. 12. The Plaintiff denied those allegations, through a letter dated ***13th September 2023*** wherein he maintained that the Defendant had not cleared the loan owed to ***Equity Bank Kenya*** ***Limited*** and that that was in breach of the sale agreement; he stated that he had talked to his wife and that any caution that had been placed over the suit properties had been removed; that the wife was willing to provide ***spousal consent*** upon payment of the full purchase price; and that any issue regarding spousal consent was premature since the Defendant had not completed its obligations under the agreement. 13. The Plaintiff further averred that he subsequently offered to refund all monies paid to the bank by the Defendant, including the deposit, amounting to ***Kshs. 38,245,391/=****,* comprising ***Kshs. 5,000,000/=*** as deposit, loan amount of ***Kshs. 17,722,658/=*** paid to Cooperative Bank and loan amount of ***Kshs. 15,522,733/=*** paid to Family Bank; which refund would be effected through proceeds of a fresh sale to a new purchaser. 14. The Plaintiff averred that he had received an offer from a third party to purchase the properties for ***Kshs. 130,000,000/=*** vide a letter of offer dated ***15th August 2023***, but the Defendant’s conduct and the restrictions lodged over the properties had frustrated the proposed transaction. 15. The Plaintiff maintained that the Defendant was in breach of the sale agreement, and as a result of the Defendant’s continued conduct, he was only willing to refund ***Kshs. 33,245,391/=****,* being the amounts paid by the Defendant less the deposit of ***Kshs. 5,000,000/=,*** which he claimed that he was entitled to retain under the agreement. 16. Consequently, the Plaintiff prayed for judgment against the Defendant for the following orders: 17. ***A declaration that the Defendant is in breach of the sale agreement dated 23rd June 2021;*** 18. ***A declaration that the Plaintiff is only liable to refund the Defendant a sum of Kshs. 33,245,391 to be paid only and immediately after the successful sale of the properties known as CIS MARA/OLDONYO RASHA/148, 357, 360, 361 and 365 to a new buyer;*** 19. ***A mandatory injunction be issued to compel the interested party to immediately return the Original Certificate of Titles of the properties known as CIS MARA/OLDONYO RASHA/148, 357, 360, 361 and 365.*** 20. ***An order be issued to the Defendant requiring it to initiate the removal of all restrictions that it had lodged over the properties known as CIS MARA/OLDONYO RASHA/148, 357, 360, 361 and 365;*** 21. ***Special Damages of Kshs. 130,000,000.00 for loss of income from the intended new sale being frustrated by the Defendant;*** 22. ***General Damages for contractual breach;*** 23. ***Interest on (e)and (f) above at Court rate of 12% per annum as from the date of filing until payment in full or such rates and for such period as this Honourable Court deems fit;*** 24. ***Costs of this suit.*** 25. In response to the Plaint, the Defendant filed a Statement of ***Defence and Counterclaim*** dated ***30th October 2023***, denying the Plaintiff’s allegations and contended that the Plaintiff, rather than the Defendant, was responsible for the failure of the sale transaction involving parcels ***CIS Mara/Ol Donyo Rasha/148, 357, 360, 361*** and ***365***. 26. The Defendant admitted that the parties entered into a Sale Agreement dated ***23rd June 2021,*** for the purchase of the suit properties at a purchase price of ***Kshs. 87,000,000.00/=.*** 27. The Defendant averred that the Plaintiff was contractually obligated to provide all completion documents necessary to facilitate transfer of the properties, including spousal consent or an affidavit of single status where applicable for each parcel of land; and that the said original documents were released to the Interested Party by the banks pursuant to the Agreement, the written authority by the Plaintiff and after the Defendant had duly paid the deposit and settled loan amounts owed to respective banks. 28. The Defendant denied the particulars of the breach set out in the Plaint and averred that the Plaintiff is the party that is in actual and continuing brief of the terms and conditions of the said agreement. 29. The Defendant averred that the Plaintiff demanded completion of the Agreement despite being aware of its decision to rescind the contract on account of the Plaintiff’s breach; and that the Plaintiff could have not properly issued a completion notice when he was already in breach of the Agreement by failing to furnish the requisite spousal consent. 30. The Defendant further averred that the Interested Party responded to the Plaintiff’s letter dated ***11th August 2023,*** which detailed circumstances around the failed transaction, that the Agreement had been terminated pursuant to ***Clause 9.8*** of the Agreement for breach of warranties, and the lack of the requisite spousal consent; the Defendant reiterated its demand for a full refund of all monies paid with interests and costs. 31. The Defendant further averred that the lack of spousal consent constituted a material breach of the Agreement, and justified termination of the Agreement by the Defendant under ***Clauses 9.1*** and **9.8** of the Sale Agreement; that the Plaintiff could not enter into another sale Agreement and perform the obligations under it. 32. The Defendant further averred that upon rescission of the agreement, the Plaintiff is obligated to refund the Deposit and the purchase price paid amounting to ***Kshs. 38,246,09/00*** together with accrued interests and costs in accordance with the Law Society of Kenya Conditions of Sale, ***2015.*** 33. The Defendant further averred that the Plaintiff could not enter into another agreement for sale of the suit properties without first releasing himself from the obligations arising from the first sale agreement. 34. The Defendant averred that the Plaintiff concealed material facts from the Court and misrepresented the circumstances surrounding the failed transaction; and that the Plaintiff and his spouse only raised the issue of lack of spousal consent after the Defendant had paid the deposit and redeemed the charged properties, thereby frustrating the transaction. 35. In its ***Counterclaim,*** the Defendant reiterated the matters pleaded in the Defence and asserted that it had paid a total of ***Kshs. 38,246,091/00*,** to and on behalf of the Plaintiff, comprising the deposit and settlement of outstanding bank loans secured against the suit properties. 36. The Defendant averred that upon payment of the outstanding loan amounts, the banks released the discharge documents and the Original Certificates of Title to the Interested Party pursuant to the sale agreement and the Plaintiff’s authority. 37. The Defendant further averred that despite payment of the sum of ***Kshs. 38,246,091/=****,* the Plaintiff sought to frustrate the agreement by claiming that the transaction lacked the requisite spousal consent; and that the lack of spousal consent was communicated upon payment of the deposit and settlement of the loan amounts by the Defendant to fraudulently stall the transaction. 38. The Defendant averred that the lack of spousal consent despite its fulfillment of all its obligations amounts to material breach of the agreement capable of terminating the same pursuant to ***clauses 9.1*** *and* ***9.8*** of the Agreement. 39. The Defendant further averred that the Plaintiff acted fraudulently by: 40. ***Failing to obtain his spouse’s consent before entering into the sale transaction despite it being a mandatory requirement;*** 41. ***Conniving with his spouse to frustrate or stall the completion of the transaction after the Defendant had settled the outstanding loans;*** 42. ***Deliberately waiting until the properties had been discharged before raising the issue of spousal consent;*** 43. ***Lodging a complaint with the Directorate of Criminal Investigations alleging that the Defendant and the Interested Party had unlawfully taken his title documents without disclosing the true circumstances surrounding the transaction;*** 44. ***Applying to the Land Registrar for re-issuance of title deeds on the false basis that the original titles had been lost or misplaced***; 45. ***Failing to disclose that the original title documents were in the custody of the Interested Party pursuant to the sale transaction; and*** 46. ***Failing to disclose that the titles were encumbered by charges and cautions, resulting in the issuance of fresh title documents free from the previous encumbrances***. 47. The Defendant further averred that the ***Land Registrar*** proceeded to ***re-issue new title deeds*** for the properties that were encumbered without any charges or cautions disclosed as a result of the Plaintiff’s fraudulent application for reissuance of title deeds for the suit properties. 48. It further averred that despite benefiting from those payments, the Plaintiff refused to refund the monies after termination of the Agreement and instead sought to retain both the redeemed properties and the monies paid by the Defendant. 49. The Defendant further averred that the Plaintiff had thereby been unjustly enriched and had enjoyed the benefit of the Defendant’s payments while attempting to sell the properties to a third party at a substantially higher price. 50. Consequently, the Defendant sought the following reliefs in the Counterclaim: 51. ***A declaration that the Plaintiff’s failure to obtain and provide the requisite spousal consent or affidavit of single status constituted a breach of the Sale Agreement.*** 52. ***A declaration that the Plaintiff’s conduct is oppressive, unconscionable and unjust.*** 53. ***A declaration that the Sale Agreement dated 23rd June 2021 stood lawfully rescinded.*** 54. ***An order compelling the Plaintiff to refund Kshs. 38,246,091.00 being the deposit and loan amounts paid by the Defendant on the Plaintiff’s behalf.*** 55. ***Interest on the said sum at Central Bank rates from the date of payment until settlement in full.*** 56. ***Legal and attendant costs amounting to Kshs. 5,000,000.00 together with interest thereon.*** 57. ***Costs of the suit and the counterclaim.*** 58. The Plaintiff consequently filed a Reply to the Defence and Counterclaim, dated ***3rd January 2024,*** reiterating the contents of the Plaint and additionally averred as follows: 59. The Plaintiff averred that the Defendant had fundamentally misconstrued the Sale Agreement by alleging that the Plaintiff was obligated to ***surrender completion documents*** before the Defendant fulfilled its contractual obligations. He maintained that the Agreement did not expressly or impliedly require him to release completion documents prior to payment of the purchase price, and settlement of the outstanding liabilities. 60. The Plaintiff further averred that a proper reading of ***Clauses 3,*** ***5 and 6*** of the Sale Agreement demonstrated that the sale was conditional upon payment of the purchase price in full together with any accrued interest. He contended that the Agreement required the Defendant to pay a deposit of ***Kshs. 5,000,000/=****,* settle the outstanding debts owed to the banks, and thereafter pay the balance due to him. He averred that the completion documents, including the original title documents and consents, were only to be released after full payment of the purchase price. 61. The Plaintiff averred that despite execution of the Sale Agreement, the Defendant had never paid the full purchase price and had failed to clear the outstanding loan owed to Equity Bank as required under the Agreement. He stated that the Defendant remained indebted to him in the sum of approximately ***Kshs. 48,753,909/=****.* 62. The Plaintiff further averred that any completion documents that may have been released before completion were handed over to the Interested Party purely as a gesture of good faith, and not because the Defendant had fulfilled its contractual obligations. 63. The Plaintiff denied the allegations that he was in breach of the Agreement and maintained that the Defendant had failed to settle the Equity Bank loan and remit the balance of the purchase price. 64. On the issue of spousal consent, the Plaintiff averred that the Defendant’s complaint was premature because the contractual stage for furnishing spousal consent had not arisen; that spousal consent formed part of the completion documents which were only to be provided upon the Defendant honoring its obligations; and that had the Defendant completed payment and he thereafter failed to provide spousal consent, the Defendant would have had a legitimate complaint. 65. The Plaintiff further averred that he was surprised to learn that his wife had lodged cautions over the suit properties; that he intervened and explained to her that the suit properties did not constitute matrimonial property; and that she subsequently withdrew the cautions and accepted the transaction. 66. The Plaintiff averred that since ***2021,*** there had been no ***spousal encumbrances*** affecting the suit properties and that the only encumbrances subsisting were those lodged by the Defendant and the Interested Party. He further maintained that although he did not consider spousal consent to be legally necessary, he would nonetheless have facilitated its provision for purposes of formality and to reassure the Defendant. 67. The Plaintiff admitted that certain monies paid by the Defendant were refundable, but averred that the amount due was ***Kshs. 33,245,391/=*** after deduction of the ***Kshs. 5,000,000/=*** deposit which he was entitled to retain pursuant to ***Clause 7.2*** of the Sale Agreement; and that any refund could only be made after a successful resale of the suit properties. 68. In defense to the ***Counterclaim,*** the Plaintiff denied all allegations save those expressly admitted. He admitted the existence of the said Sale Agreement and acknowledged that original title documents had been released to the Interested Party. However, he averred that the documents were surrendered in good faith and on the understanding that the Interested Party was acting as a neutral stakeholder. 69. The Plaintiff further averred that the Interested Party had since abandoned its neutrality and had aligned itself with the Defendant; and that the Interested Party was no longer an impartial stakeholder and that the original title documents should be returned to him. 70. The Plaintiff denied allegations that **Equity Bank** **Ltd** had threatened foreclosure of the suit properties; and that the Bank released the original title documents despite the outstanding debt because of the long-standing relationship he enjoyed with the Bank. 71. The Plaintiff further averred that he was not aware that his wife had written to the Interested party to lodge cautions over the properties necessitating him to intervene and have her remove the caution and accept the sale transaction; that he explained to his wife that the properties were not matrimonial property. 72. He further averred that the completion documents including spousal consent were to be surrendered on the completion date after the Defendant had honored its contractual obligations; and that the completion documents given by the Plaintiff before the completion date were given in good faith. 73. The Plaintiff further averred that the Defendant had falsely alleged that the Agreement was rescinded by way of a termination notice. He contended that the Agreement contained specific termination provisions requiring the issuance of a valid ***21 days*** ***completion notice*** identifying the default and affording an opportunity to remedy the same, which procedure had not been followed. 74. Therefore, the Plaintiff maintained that the Defendant was the party in breach of the Sale Agreement; that he was entitled to retain the deposit of ***Kshs. 5,000,000/=*** under the Agreement; and that the Counterclaim ought to be dismissed with costs while judgment should be entered in his favour as prayed in the Plaint. 75. The Defendant filed a Reply to the ***Defence*** to **Counterclaim**, which Reply is dated ***9th April 2024,*** and averred that although it admitted paragraph ***24*** of the Defence to Counterclaim, it denied the allegations of breach and contended that on ***8th July 2021****,* Equity Bank released the discharge documents and original title documents relating to ***CIS Mara/Ol Donyo Rasha/357,*** directly to the Interested Party despite an outstanding loan balance of **Kshs. *5,000,000/=****;* and that the release of the documents forestalled the imminent exercise of the bank’s statutory power of sale as contemplated under the Sale Agreement. 76. The Defendant averred that it was misleading for the Plaintiff to claim that he had voluntarily surrendered the original title documents; that the documents were released directly by the banks to the Interested Party pursuant to the Sale Agreement, and upon the Plaintiff's written authority after the Defendant had paid the deposit and settled the outstanding loan obligations. 77. The Defendant further averred that the Plaintiff was guilty of material non-disclosure and had misled the Court by suggesting that he released the title documents and discharges to the Defendant when, in fact, the documents were never in his custody and were released by the banks upon payment of the deposit, and settlement of the outstanding loan amounts by the Defendant. 78. The Defendant further averred that the Interested Party’s retention of the title documents was necessary because the Plaintiff had engaged in illegal and fraudulent conduct intended to steal a march on the Defendant. 79. The Defendant averred that in or about ***September 2021,*** the Plaintiff lodged a complaint with the ***Directorate of Criminal Investigations at Narok*** alleging that the Defendant and the Interested Party had stolen his title documents; and that the Plaintiff failed to disclose the full circumstances of the aborted transaction and his role therein. 80. The Defendant further averred that after the Interested Party explained the circumstances surrounding the transaction and indicated an intention to lodge a complaint for obtaining money by false pretences, the police established that the Plaintiff had not been candid in his complaint. 81. The Defendant averred that the Plaintiff intended to use a newly issued unencumbered title deed to dispose of the suit properties to unsuspecting third parties without refunding the monies already paid by the Defendant under the Sale Agreement. 82. The Defendant further averred that under ***Clauses 9.2 and 9.8*** of the ***Sale Agreement***, the Plaintiff warranted that he possessed the requisite authority, capacity and ability to enter into and perform the Agreement, and that the Defendant was entitled to terminate the Agreement if any warranty proved to be untrue or misleading. 83. It was the Defendant’s contention that the Plaintiff lacked the requisite authority and capacity to enter into the Agreement because mandatory spousal consent had not been obtained; and that it was entitled to terminate the Sale Agreement without prejudice to any other available remedies. 84. The Defendant further averred that the absence of spousal consent had already occasioned prejudice and that subsequent provision of such consent would not have remedied the situation. 85. The Defendant also contended that ***Clause 3*** of the Sale Agreement related to the execution of transfers and not completion documents as alleged by the Plaintiff. Further, that ***Clause 6.3*** of the Sale Agreement required the vendor, on or before the completion date, to provide completion documents including spousal consent or an affidavit of single status and that provision of those documents was not contingent upon payment of the balance of the purchase price. 86. Finally, the Defendant averred that ***Clause 7*** of the Sale Agreement provided that the purchaser ***“may”*** issue ***21 days’*** completion notice and therefore the issuance of such notice was discretionary rather than mandatory. The Defendant consequently prayed for dismissal of the Defence to Counterclaim, entry of judgment in terms of the Counterclaim and an award of costs. 87. At the close of pleadings, and Pre trial conferences, the matter proceeded for hearing via viva voce evidence, wherein the plaintiff gave evidence and called one witness. The Defendant gave evidence through the witness. **PLAINTIFF’S CASE** 1. ***PW1:Moriaso Ole Kindi,*** adopted his witness statements dated ***29th September 2023,*** and ***13th May 2024,*** as his evidence in chief and also produced his list and bundle of documents as ***PExhibits 1-8*** and his supplementary list and bundle of documents dated ***13th Mays 2024,*** as ***PExhibits 9-10***. 2. PW1 testified that he entered into an Agreement for sale with the Defendant for the sale and purchase of his properties known as ***CIS MARA/OLDONYO RASHA/148, 357, 360, 361*** *and* ***365*** for the cumulative sum of ***Kshs. 87,000,000/=*** in which the Defendant was to pay a deposit of ***Kshs. 5 million***, and pay the balance by clearing all charges over the properties and thereafter remit the balance to him; and that he would deliver the completion documents after receiving the amount owed to him. with completion to occur within 90 days. 3. It was his further evidence that after receiving the deposit, he performed his obligations under the Sale agreement and released the original title documents and relevant discharge documents to the Defendant, and the interested party in good faith, despite the Defendant not having fulfilled his contractual obligations. 4. Further, that the Defendant breached the said agreement by failing to clear the outstanding loans as required under ***clause 5.1.2.1*** and by failing to remit the balance of the purchase price after settlement of the loan liabilities as required under clause ***5.1.2.2.*** 5. He further testified that owing to the Defendant’s failure to complete the transaction, he issued a completion notice dated ***14th August 2023,*** requiring the Defendant to honour its obligations within ***21 days***, failing which he would enforce his rights under the agreement; and that despite service of the notice and a notice of intention to sue, the Defendant failed to comply, and consequently the agreement stood rescinded in accordance with ***Clause 7*** thereof. 6. The Plaintiff also testified that in an effort to resolve the dispute amicably, his advocates wrote to the Defendant on ***11th August*** **2023,** proposing that all amounts paid by the Defendant towards clearing the loan liabilities be refunded upon confirmation of the amount and that he would retain the deposit in accordance with the agreement. 7. According to ***PW1,*** the Interested party, acting on behalf of the Defendant, responded through letters dated ***6th and 8th September*** ***2023,*** alleging that the transaction had stalled because his wife had declined to grant spousal consent, that he had failed to provide completion documents, that restrictions had been registered against the property, and that he had reported theft of title documents. 8. Further, that the plaintiff responded through his advocates by a letter dated ***13th September 2023,*** clarifying that the Defendant had not cleared the loan facilities as required under the agreement, that any caution placed by his wife had already been removed, and that his wife was willing to provide spousal consent upon payment of the sums due under the agreement. He maintained that the Defendant could not rely on the issue of spousal consent before fulfilling his own contractual obligations. 9. It was his further testimony that he subsequently made a more favourable proposal whereby he offered to refund all monies paid by the Defendant, including the deposit of ***Kshs. 5,000,000/=*** and the sums used to clear loans, amounting in total to ***Kshs.* *38,245,391/=***. That he had received another offer from a third-party purchaser for ***Kshs. 130,000,000/=*** and proposed to structure the transaction in a manner that would enable the Defendant to be refunded immediately upon execution of a fresh sale agreement with the new purchaser. 10. That despite these proposals, the Defendant failed to respond and continued to frustrate efforts to resolve the matter. To him, the Defendant’s conduct jeopardized the prospective sale to the new purchaser and caused him loss and injury. Consequently, he sought orders from the Court for the reliefs set out in the Plaint, while indicating that he was entitled under the agreement to retain the deposit of ***Kshs. 5,000,000/=,*** and would only refund ***Kshs.*** ***33,245,391/=*** to the Defendant. 11. The Plaintiff also testified that on ***2nd May 2024***, his advocates informed him that they had received charge documents and applications for ***Land Control Board consent*** prepared by the Defendant for purposes of securing loans using the suit properties. 12. Further, that upon being shown the documents by his advocates, he observed that they had been executed by the Defendant’s directors and bore the Defendant Company’s seal. He maintained that he had never transferred ownership of any of the suit properties to the Defendant. 13. It was his evidence that the Defendant’s actions demonstrated its true intention from the beginning of the transaction, namely to deprive him of his land by taking advantage of his illiteracy. He further testified that the charge documents revealed that the Defendant had falsely represented itself as the proprietor of the suit properties despite the properties remaining registered in his name. 14. PW1 maintained that the Defendant’s conduct amounted to an attempt to deal with and encumber the suit properties without lawful ownership and urged the Court to grant the reliefs sought in the Plaint. 15. Upon cross-examination, PW1 testified that there was a caution lodged over the title, which caution was lodged by his wife; that his wife was not aware that he was selling the land to the Defendant. 16. Further, that he was the one that gave the original title documents to the Defendant, and not the bank; that the Defendant is yet to pay the full purchase price; that the transaction was not finalized because he was waiting on the payment of the full purchase price. 17. He also testified that he did not say that he got another buyer for ***Kshs. 140 million***; that he received around ***ksh38 million*** from the Defendant; that he has not drawn another agreement for ***Kshs. 130 million***; and that he had charged the land to Family bank and Equity bank. 18. He further testified that he had never gone to ***Narok Lands*** ***Offices*** to apply for a new title deed; and that he had not been issued with any new titles. It was his further testimony that there was ***no notice*** to rescind the sale Agreement; that the loan owed to Equity bank was not paid. 19. ***PW2:******Rebecca Kindi*** adopted her witness statement dated ***23rd December 2023*** as her evidence in chief and testified that she is the Plaintiff’s wife; that she had not given consent for the sale of the land; that she had placed a caution which she later agreed with her husband to withdraw; and that the Plaintiff had bought the land before he married her. ***DEFENDANT’S CASE*** 1. ***DW1*:** ***Erico Sequeira*** adopted his witness statement dated ***21st December 2025,*** as his evidence in chief and produced his list and bundle of documents as ***D Exhibits 1 – 12,*** and further testified that he was the Chief Accountant of the Defendant Company and was duly authorized to testify on its behalf. Further, that the Plaintiff and the Defendant entered into a sale agreement dated ***23rd June 2021,*** for the purchase of the properties known as ***CIS Mara/Ol Donyo Rasha Nos. 148, 357, 360, 361*** and ***365***at a purchase price of ***Kshs. 87,000,000/=****.* 2. It was his testimony that the properties were at the time charged to ***Equity Bank, Co-operative Bank, Family Bank and KCB*** ***Bank,*** and that the parties agreed that part of the purchase price would be utilized to settle the outstanding loan facilities secured by the properties. 3. Further, that the agreement provided for payment of a deposit of ***Kshs. 5,000,000/=*** directly to the Plaintiff, payment of the outstanding bank debts, and thereafter payment of the balance of the purchase price to the Plaintiff. That the sale agreement incorporated the ***2015 Law Society Conditions of Sale,*** and required the Plaintiff to provide, among other documents, spousal consent before completion. 4. DW1 also testified that the Defendant was at all material times ready, willing and able to complete the transaction and that it was the Plaintiff who defaulted. Further, that pursuant to the sale agreement, the Plaintiff authorized the respective banks to furnish the Interested Party with details of the outstanding loans, and undertakings to release the discharge documents and original title documents upon settlement of the loans. 5. It was his evidence that the Defendant paid ***Kshs. 5,000,000/=*** to the Plaintiff as deposit, ***Kshs. 17,722,658/=*** to settle the outstanding loan with ***Co-operative Bank*** ***and Kshs. 15,523,433/=*** to settle the outstanding loan with ***Family Bank***. Further, that following payment, the respective banks released discharge documents and original title documents to the Interested Party in accordance with ***Clause 5.4*** of the sale agreement. That Equity Bank similarly released title documents relating to one of the properties notwithstanding that a loan balance of ***Kshs. 5,000,000/=*** remained outstanding, owing to its relationship with the Plaintiff. 6. DW1 further testified that it was misleading for the Plaintiff to claim that he voluntarily handed over the title documents in good faith, since the documents had in fact been released directly by the banks to the Interested Party after the Defendant had settled the outstanding loan obligations. He maintained that the title documents remained lawfully in the custody of the Interested Party for the benefit of the parties. 7. He further testified that despite the Defendant paying a total of ***Kshs. 38,246,091/=*** towards the purchase price and being ready to complete the transaction, the Plaintiff breached the warranties contained in the agreement; and that the Plaintiff failed to obtain the ***mandatory spousal consent*** required by law and under the agreement and thereby lacked the requisite capacity and authority to complete the transaction. 8. DW1 stated that after the Defendant had settled the Plaintiff’s debts and prevented the banks from exercising their statutory power of sale, the Plaintiff and his spouse sought to frustrate the transaction by claiming that spousal consent had not been obtained. That the Plaintiff’s spouse, through her advocates, wrote a letter dated ***26th August 2021,*** seeking to stop the sale. In response, the Interested Party wrote to the Plaintiff demanding either completion of the transaction or a full refund of all monies paid within seven days. 9. It was his evidence that the Plaintiff neither completed the transaction nor refunded the monies paid. He asserted that the issue of ***spousal consent*** was only raised after the Defendant had paid the deposit and settled the outstanding loans and after the properties had been discharged, demonstrating an intention to frustrate the transaction and subsequently sell the properties to third parties at a higher price. 10. DW1 testified that the Defendant therefore terminated the agreement pursuant to ***Clauses 9.1 and 9.8*** on account of the Plaintiff’s breach of warranty. He stated that under the said sale agreement and the Law Society Conditions of Sale, the Plaintiff was obligated to refund the deposit, the sums paid towards the purchase price, accrued interest and costs before the Defendant could return the title documents. 11. He further testified that the Defendant’s belief that the Plaintiff acted in bad faith was vindicated when the Plaintiff later disclosed that he had received an offer of ***Kshs. 130,000,000/=,*** for the same properties. According to DW1, the Defendant consequently lodged cautions against the properties to protect its purchaser’s interest and contractual rights. 12. DW1 stated that the Defendant consistently demanded a refund of ***Kshs. 38,246,091/=,*** together with interest but the Plaintiff failed and/or refused to refund the monies. He denied that the Defendant or the Interested Party ignored the Plaintiff’s correspondence and maintained that they remained willing to return the original title documents upon full reimbursement of the deposit, purchase price payments, accrued interest and costs. 13. Further, that the Plaintiff had not approached the Court with clean hands and had engaged in fraudulent conduct. In particular, he alleged that the Plaintiff lodged a complaint with the ***Directorate*** ***of Criminal Investigations*** claiming that the Defendant and the Interested Party had stolen the title documents, despite knowing that the documents had been lawfully released by the banks and were held by the Interested Party pursuant to the transaction. 14. DW1 also testified that in ***February 2023,*** the Plaintiff applied for replacement title deeds on the basis that the original titles had been lost, while failing to disclose that the original titles were in the custody of the Interested Party and that the properties remained encumbered. He stated that new titles were subsequently issued without reflecting the existing encumbrances. According to DW1, the Plaintiff intended to use the ***re-issued titles*** to dispose of the properties to third parties without first refunding the Defendant the monies already paid. 15. He maintained that the Defendant fully performed all its obligations under the Sale agreement, that the agreement was lawfully terminated following the Plaintiff’s breach, and that the Plaintiff was obliged to refund all monies paid together with interest and costs before the Defendant and Interested Party could release the original documents in their possession. 16. During cross examination, DW1 admitted that the Defendant did not clear the loan owed to Equity Bank; that the Defendant paid the sum of ***Kshs. 38,245,491/=***; that the outstanding balance was ***Kshs. 48,754,609/=***; and that the Defendant was willing to complete the sale. He admitted that he did not issue a Completion Notice to the Plaintiff. 17. After the viva voce evidence, parties filed and exchanged written submissions. The Plaintiff filed its written submissions dated ***10th March 2026,*** through ***Solonka & Co Advocates.*** Wherein he raised the following issues for determination: 18. ***Whether the sale agreement dated 23rd June 2021 stands rescinded by dint of the Defendant’s failure to comply with the completion notice dated 14th August 2023.*** 19. ***Whether the Plaintiff was contractually obligated to provide spousal consent before the Defendant had paid the full purchase price.*** 20. ***Whether a termination notice was ever validly issued by the Defendant to rescind the sale agreement dated 23rd June 2021.*** 21. ***Whose conduct in this contractual relationship manifested fraudulent intent.*** 22. ***Whether the plaintiff has suffered loss.*** 23. On ***whether the sale agreement dated 23rd June 2021 stands rescinded by dint of the Defendant’s failure to comply with the completion notice dated 14th August 2023***, the Plaintiff submitted as follows: 24. That the parties herein executed the Sale Agreement dated ***23rd June 2021,*** for the sale of the suit properties at a consideration of ***Kshs. 87,000,000/=****.* The Plaintiff, was obligated under clauses ***3, 5 and 6*** of the Sale Agreement to discharge the encumbrances registered against the suit properties, settle the outstanding loan owed to ***Equity Bank Limited*** and remit the balance of the purchase price before completion could occur. That the Defendant failed to perform these obligations, and consequently remained in fundamental breach of the Agreement. 25. Further, that the evidence adduced in court established that the Defendant neither cleared the outstanding loan facility nor remitted the balance of the purchase price despite receiving the original title documents; that the Defendant remained indebted to the Plaintiff in the sum of ***Kshs. 48,754,609/=*** and therefore could not lawfully insist on completion while itself being in breach of the Agreement. 26. Reliance was sought in ***National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another [2001] eKLR***, where the Court of Appeal held that a court of law cannot rewrite a contract between parties, and that parties are bound by the terms of their agreement unless coercion, fraud or undue influence is established. The Plaintiff argued that the Defendant could not evade its express contractual obligations by introducing conditions not contemplated by the Agreement. 27. Further, that owing to the Defendant’s persistent default, the plaintiff duly issued a Completion Notice dated ***14th August 2023,*** pursuant to ***Clause 7*** of the Sale Agreement requiring the Defendant to complete the transaction within ***twenty-one days***. The notice was validly served through the Interested Party, and it expressly identified the Defendant’s defaults, being failure to discharge the outstanding loan and pay the balance of the purchase price. 28. That despite service of the Completion Notice, the Defendant failed to remedy the breach within the stipulated period. He maintained that he ***remained ready, willing and able to complete*** the transaction and had communicated that willingness even before issuance of the ***Completion Notice*** through advocates’ correspondence. Consequently, the Defendant’s failure to comply with the Completion Notice entitled the Plaintiff to treat the Agreement as terminated and seek appropriate reliefs. 29. Further reliance was sought in ***Vipingo Properties Limited v Rudolph Thinda; Registrar of Titles (Interested Party) [2022] eKLR****,* wherein the Court observed that completion documents are not ordinarily released before proof of payment of the purchase price, and that payment and release of completion documents are contemporaneous obligations. Therefore, the Defendant could not demand completion documents or rely on alleged deficiencies in completion when it had failed to demonstrate readiness and ability to pay the balance of the purchase price. 30. The Plaintiff urged the Court to find that the Defendant’s failure to discharge the encumbrances and pay the balance of the purchase price constituted a fundamental breach of the Sale Agreement, and that the Defendant’s continued non-compliance with the Completion Notice dated ***14th August 2023,*** justified rescission of the Agreement and the reliefs sought in the Plaint. 31. On ***whether the Plaintiff was contractually obligated to provide spousal consent before the Defendant had paid the full purchase price***, he submitted that the Defendant’s reliance on the issue of spousal consent as justification for its failure to complete the transaction was both legally and factually untenable. He argued that under the Sale Agreement dated ***23rd June 2021,*** the obligation to provide spousal consent had not crystallized because completion had not occurred and the Defendant had not fulfilled its primary obligations under the Agreement. 32. Further, that ***Clause 6*** of the Sale Agreement expressly provided that completion documents, including spousal consent where applicable, were to be exchanged upon completion. Thus, completion was contingent upon the Defendant first discharging all encumbrances over the suit properties, and remitting the balance of the purchase price. Since the Defendant admittedly failed to clear the outstanding loan owed to ***Equity Bank Limited*** and failed to pay the balance of the purchase price, the stage at which spousal consent could be demanded never arose. 33. The Plaintiff further submitted that the evidence of ***PW2*** demonstrated that any concerns regarding spousal consent had long been resolved. PW2 had initially lodged cautions against the suit properties due to lack of information regarding the transaction, but voluntarily withdrew the same after being appraised of the circumstances of the sale. Further, the properties had been acquired by the Plaintiff long before the marriage, and did not constitute matrimonial property. Pw2 had expressed her willingness to execute any spousal consent if the same became necessary. 34. The Plaintiff relied on ***Francis Kiarie Kamau & Another v Sammy Kimemia Njuguna & Another [2021] eKLR***, wherein the Court held that spousal consent was not required in respect of property that did not constitute matrimonial property and which had been acquired before the enactment of the ***Land Act, 2012.*** Further, that the facts of the present case were analogous, as the evidence established that the suit properties were acquired before marriage, and were therefore not matrimonial property capable of attracting the requirement for spousal consent. 35. The Plaintiff further argued that even assuming, without conceding, that spousal consent was necessary, the Defendant could not rely on the absence thereof because it had never reached the completion stage contemplated under the sale Agreement. Further, that a party who is itself in breach cannot rely on an unfulfilled reciprocal obligation whose performance was dependent upon its own prior compliance with the contract. 36. Reliance was sought in ***Vipingo Properties Limited v Rudolph Thinda; Registrar of Titles (Interested Party) [2022] eKLR****,* and the Plaintiff urged the Court to find that the issue of spousal consent was raised by the Defendant to divert attention from its own default. That the obligation to provide spousal consent had neither arisen under the terms of the Sale Agreement nor constituted a lawful basis for the Defendant’s failure to complete the transaction. Consequently, the Defendant could not rely on the alleged absence of spousal consent to excuse its breach of the Sale Agreement. 37. On ***whether a termination notice was ever validly issued by the Defendant to rescind the sale agreement dated 23rd June 2021***, the Plaintiff submitted that the Defendant never lawfully rescinded the Sale Agreement in issue because no valid termination notice was ever issued or served in accordance with the terms of the Agreement. He argued that the Defendant’s assertion that the Sale Agreement had been terminated was unsupported by both the evidence on record and the Defendant's own admissions during trial. 38. Further, the Plaintiff argued that ***Clause 9*** of the Sale Agreement expressly prescribed the procedure for termination and required that any party seeking to terminate the Sale Agreement was to issue and serve a formal notice upon the other party. Therefore, compliance with this contractual procedure was mandatory, and any purported termination outside the agreed framework would be invalid and incapable of bringing the Agreement to an end. 39. Further, that the only document relied upon by the Defendant being letter dated 27th August 2021 authored by ***Lelei Associates*** Advocates, neither constituted a termination notice nor originated from him. He maintained that ***Lelei Associates Advocates*** acted on instructions of ***PW2,*** and not on his behalf and that he neither retained nor authorized the said ***Advocates*** to represent him in the transaction. Therefore, the contents of the said letter could not be attributed to him. 40. That the Defendant’s conduct after the alleged termination was inconsistent with its position that the Sale Agreement had been rescinded. He argued that if the Sale Agreement had indeed been terminated in ***August 2021***, there would have been no need for continued negotiations between the parties, correspondence regarding completion, or the Defendant’s continued attempts to secure completion of the transaction. That the Defendant only raised the issue of termination after he issued the Completion Notice dated ***14th August 2023***, thereby demonstrating that the allegation was merely an afterthought designed to justify its own breach. 41. The Plaintiff relied on ***National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another [2001] eKLR***, and submitted that since the parties had expressly agreed on the manner in which the Agreement could be terminated, the Defendant could not circumvent those provisions by alleging termination without issuing the requisite notice. 42. Further reliance was sought in ***Pius Kimaiyo Langat v Co-operative Bank of Kenya Ltd [2017] eKLR***, where the Court of Appeal reiterated that courts must enforce contracts as executed by the parties and that ***contractual obligations voluntarily*** undertaken ***must be honoured*** unless vitiating factors such as ***fraud, coercion or undue influence*** are established. He argued that the Defendant could not escape liability by disregarding the contractual procedure for termination and subsequently claiming that the Agreement had come to an end. 43. Accordingly, the Plaintiff submitted that no valid termination notice was ever issued or served upon him, and that the Sale Agreement remained in force until the Defendant’s failure to comply with the Completion Notice dated ***14th August 2023***. He urged the Court to find that the Defendant's purported rescission of the Sale Agreement was contractually invalid, legally ineffective and incapable of defeating the Plaintiff’s claim. 44. On ***whose conduct in this contractual relationship manifested fraudulent intent***, the Plaintiff submitted that the evidence on record overwhelmingly demonstrated that the collapse of the transaction was solely attributable to the Defendant’s failure to comply with its obligations under the Sale Agreement in issue. Further, that throughout the transaction he remained ready, willing and able to complete the sale, while the Defendant consistently failed to perform the obligations expressly imposed upon it under the Agreement. 45. The Plaintiff argued that the Defendant was obligated to discharge the encumbrances registered against the suit properties, settle the outstanding loan facility with Equity Bank Limited, and remit the balance of the purchase price. Since the Defendant failed to fulfil any of these obligations despite being afforded ample opportunity to do so, he argued that the Defendant remained indebted to him in the sum of ***Kshs. 48,754,609/=.*** 46. The Plaintiff further submitted that the his evidence and that of ***PW2*** established that the concerns relating to spousal consent and cautions lodged against the suit properties were resolved. That PW2 had testified that she voluntarily withdrew the cautions after learning the circumstances of the transaction and confirmed that the suit properties were acquired before marriage. Therefore, the Defendant could not legitimately rely on these issues to justify its failure to complete the transaction. 47. Further, that ***DW1*** made several material admissions during cross-examination which effectively established the Defendant’s breach. That the Defendant had not discharged the Equity Bank loan, had not paid the balance of the purchase price; had not issued a completion notice to the Plaintiff, and had not served a termination notice in accordance with the Sale Agreement. He argued that these admissions conclusively demonstrated that the Defendant, and not the Plaintiff, was responsible for the failure of the transaction. 48. Further, that despite the Defendant’s persistent default, he continued to demonstrate willingness to complete the transaction. That the correspondence exchanged between the parties and the issuance of the Completion Notice dated ***14th August 2023, was*** evidence of his efforts to facilitate completion. 49. Reliance was further sought in **National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another( Supra),** and argued that the Defendant's failure to comply with the express terms of the Sale Agreement constituted a breach for which it must bear responsibility. He also submitted that the Defendant was attempting to avoid the consequences of its own breach by introducing obligations not contemplated under the Agreement. 50. The Plaintiff also relied on the ***equitable principle*** that a party in default cannot benefit from its own wrongdoing, and argued that having failed to discharge the encumbrances and pay the balance of the purchase price, the Defendant could not rely on its own breach to escape liability or to blame the Plaintiff for the collapse of the transaction. 51. Accordingly, the Plaintiff urged the Court to find that the failure of the transaction was occasioned solely by the Defendant’s breach of the Sale Agreement, particularly its failure to discharge the outstanding loan, remit the balance of the purchase price, and comply with the Completion Notice dated ***14th August 2023***. That the Defendant should bear full responsibility for the collapse of the transaction and the losses occasioned thereby 52. On ***whether the plaintiff has suffered loss***, the Plaintiff submitted that as a direct consequence of the Defendant’s breach of the Sale Agreement in issue , he suffered substantial financial loss and damage. He argued that despite transferring possession of the completion documents and facilitating the transaction, the Defendant failed to discharge the encumbrances over the suit properties, failed to pay the balance of the purchase price, and unlawfully continued to retain benefits arising from the transaction to the Plaintiff's detriment. 53. He argued that the Defendant’s breach deprived him of the benefit of the bargain contemplated under the Sale Agreement, and that he was entitled to recover the outstanding sum of ***Kshs.*** ***48,754,609/=*** being monies due and owing from the Defendant together with interest thereon. That the evidence adduced at trial demonstrated that the Defendant acknowledged the existence of the debt, and never disputed that the balance remained unpaid. 54. Further, that the Defendant’s conduct occasioned additional loss by preventing him from freely dealing with the suit properties. He argued that the continued existence of restrictions and encumbrances over the properties, coupled with the Defendant’s failure to complete the transaction, deprived him of the opportunity to utilize, develop, charge or dispose of the properties for his own benefit. 55. He relied on the principle stated in **Hadley v Baxendale (1854) 9 Exch 341**, that a party injured by a breach of contract is entitled to recover losses that arise naturally from the breach or such losses as were within the contemplation of the parties at the time the contract was made. That the losses suffered were a natural and foreseeable consequence of the Defendant's failure to honour its contractual obligations. 56. He also relied on ***Kenya Tourism Development Corporation v Sundowner Lodge Limited [2018] eKLR***, where the Court of Appeal reiterated that damages for breach of contract are intended to place the innocent party, as far as money can do so, in the position he would have occupied had the contract been performed. He argued that had the Defendant complied with its obligations, the transaction would have been completed and he would have received the full purchase price. 57. It was the plaintiff’s further submissions that he was entitled to an order directing the Interested Party to release and return all original completion documents and title documents deposited pursuant to the Sale Agreement. That since the transaction failed due to the Defendant’s breach, there was no legal basis for the Defendant or the Interested Party to continue retaining documents belonging to him. 58. The Plaintiff urged the court to allow the prayer for the removal of any restrictions, cautions or encumbrances placed over the suit properties arising from the failed transaction, as such orders were necessary to restore him to the position he occupied before entering into the sale Agreement, and to enable him to freely enjoy his proprietary rights over the suit properties. 59. Finally, the Plaintiff submitted that having successfully established breach of contract on the part of the Defendant, he was entitled to the reliefs sought in the Plaint together with interest and costs of the suit, as contemplated under ***Section 27*** of the ***Civil Procedure Act*** that costs follow the event, unless the court, for good reason, orders otherwise. 60. On his part, the Defendant filed its written submissions dated ***1st April 2026,*** through ***Kiunga Kingirwa & Co Advocates*,** and raised the following issues for determination: 61. ***Whether spousal consent is a completion document.*** 62. ***Whether the Plaintiff’s conduct was fraudulent.*** 63. ***Whether it was the plaintiff or the defendant who breached the Agreement.*** 64. ***Whether the Defendant is entitled to the reliefs sought***. 65. On ***whether the spousal consent is a completion document***, the Defendant submitted that spousal consent was an express and mandatory completion document under ***Clause 6.3.8*** of the Sale Agreement dated ***23rd June 2021***, which required the Plaintiff, on or before the completion date, to furnish either spousal consent or an Affidavit of single status. The Defendant argued that the use of the word “shall” in the ***clause imposed*** ***a mandatory obligation*** on the Plaintiff and left no room for discretion. 66. Reliance was placed on ***Republic v Council of Legal Education & another Ex Parte Sabiha Kassamia & another [2018] eKLR***, where the Court held that the term “shall” denotes a mandatory obligation. 67. Further, that the requirement for spousal consent was not merely contractual but was also grounded in statute. Reliance was placed on ***Section 12(1)*** of the ***Matrimonial Property Act, 2013***, which prohibits the alienation of matrimonial property during the subsistence of a marriage without the consent of both spouses. The Defendant also cited **Sections 93(2) and 28(a)** of the ***Land Registration Act, 2012,*** and argued that spousal rights constitute overriding interests in land, and are protected irrespective of whether they are noted in the register. Further, the Defendant contended that failure to obtain spousal consent rendered completion of the transaction legally defective and potentially voidable. 68. Further, that the Plaintiff’s contention that the suit properties were not matrimonial property was unsupported by evidence. That the Plaintiff failed to respond to the letter authored by ***Lelei & Company Advocates*** on behalf of his wife objecting to the transaction, and that the successful lodging of cautions over the suit properties by the Plaintiff’s wife demonstrated that her interest in the properties was real and legally recognized. He maintained that these actions confirmed that spousal consent was not a mere formality, but an essential prerequisite to a valid transfer. 69. The Defendant further submitted that after investing ***Kshs. 38,246,091/=*** towards the transaction, it would have been unreasonable to expect it to proceed with completion after receiving the objection from the Plaintiff’s spouse. Further, that despite claiming the properties were not matrimonial property, the Plaintiff neither provided an ***Affidavit of single status*** nor procured any Affidavit from his wife confirming that she had no interest in the properties. 70. 3Further, that failure by the Plaintiff to procure and furnish spousal consent, coupled with the cautions lodged by his wife, placed the Defendant in an impossible position and prevented lawful completion of the transaction. He contended that the impediment to completion arose from the Plaintiff’s own domestic and proprietary circumstances rather than any act or omission on the part of the Defendant. 71. The Defendant further submitted that the Plaintiff could not rely on the Sale Agreement while simultaneously frustrating compliance with one of its fundamental completion conditions through his spouse. Invoking the equitable principle that a party seeking relief must come to court with clean hands, the Defendant argued that the Plaintiff could not benefit from an impediment of his own making. 72. The Defendant further submitted that spousal consent was a mandatory completion document grounded in both contract and statute. It argued that the Plaintiff’s failure to obtain and furnish the requisite consent, as acknowledged through the correspondence from ***Lelei & Company Advocates*** and the conduct of the Plaintiff’s spouse, amounted to a fundamental failure to satisfy the conditions for completion of the sale transaction. 73. On ***whether the Plaintiff’s conduct was fraudulent***, the Defendant submitted that the Plaintiff’s conduct amounted to ***fraud, bad faith, and deliberate misrepresentation***. Relying on the definition in Black’s Law Dictionary (11th Edition), the Defendant argued that fraud entails a knowing misrepresentation or concealment of a material fact intended to induce another person to act to his detriment. The Defendant contended that the Plaintiff deliberately induced it to part with substantial sums of money under false pretences, and thereafter frustrated completion of the transaction. 74. The Defendant acknowledged that allegations of fraud must be specifically pleaded and strictly proved and relied on ***Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2000] eKLR****,* ***Central Bank of Kenya Ltd v Trust Bank Ltd & 4 Others [1996] eKLR****, and* ***Kinyanjui Kamau v George Kamau [2015] eKLR*** for the proposition that the standard of proof for fraud is higher than a balance of probabilities though not beyond reasonable doubt. That the evidence on record met this threshold and demonstrated a deliberate and consistent course of conduct by the Plaintiff. 75. Further, that the Plaintiff entered into the Sale Agreement and represented that he had the requisite authority and capacity to sell the suit properties. Acting on those representations, the Defendant paid a total of ***Kshs. 33,246,091/=,*** towards the Plaintiff’s outstanding loan obligations, thereby securing the release of the charged titles and preventing the imminent exercise of the chargees’ statutory power of sale. The Defendant argued that the Plaintiff received substantial financial benefits from these payments. 76. That it was only after the Defendant had discharged the Plaintiff’s debts and the properties had been released from the banks that ***the issue of spousal consent*** was raised through a letter from ***Lelei & Company Advocates*** acting on behalf of the Plaintiff’s wife. The Defendant submitted that despite receiving the letter, the Plaintiff neither repudiated its contents nor took any steps to procure spousal consent or provide an affidavit of single status. Instead, he acquiesced in actions that ultimately frustrated completion of the transaction. 77. Further, that the Plaintiff’s conduct included permitting the lodging of cautions over the suit properties by his spouse, reporting to the ***Directorate of Criminal Investigations*** that the Defendant and the Interested Party had unlawfully retained the title documents, and applying for reissuance of the titles on the false representation that the original titles had been lost. It was argued that the Plaintiff knew that the original titles were lawfully held by the Interested Party pursuant to the Sale Agreement, and that the properties had only recently been discharged using funds provided by the Defendant. 78. The Defendant contended that the Plaintiff’s failure to disclose these material facts to the ***Land Registrar*** amounted to deliberate concealment and misrepresentation, resulting in the issuance of ***unencumbered titles*** in his favour. Reliance was placed on ***Sections 26(1)(b) and 80(1)*** of the ***Land Registration Act***, with the Defendant arguing that titles obtained through fraud or misrepresentation are liable to challenge and rectification. 79. Further, that the Plaintiff knowingly warranted that he possessed the requisite capacity to enter into the Sale Agreement while being aware that mandatory spousal consent had not been obtained and was unlikely to be forthcoming. The Defendant argued that the Plaintiff allowed it to settle his financial obligations and thereafter permitted his spouse to withhold consent, thereby derailing the transaction while retaining the benefits derived from the Defendant’s payments. The subsequent application for reissuance of the titles, despite knowledge that the originals were lawfully held under the Sale Agreement, was said to constitute a calculated act of fraud. 80. Therefore, the Plaintiff’s conduct was ***not the result of mistake***, ***inadvertence, or oversight***, but formed ***part of a*** ***deliberate scheme designed*** to obtain financial benefits from the Defendant while frustrating completion of the transaction. It urged the Court to find that the Plaintiff had acted fraudulently and in bad faith and was consequently disentitled from obtaining any equitable relief. The Defendant urged the Court to allow its ***Counterclaim,*** including rescission of the Sale Agreement, and restitution of all sums paid. 81. On ***whether it was the Plaintiff or the Defendant who breached the Sale Agreement***, the Defendant submitted that it was the Plaintiff, and not the Defendant, who fundamentally breached the Sale Agreement dated ***23rd June 2021***. 82. The Defendant argued that the Plaintiff’s fraudulent conduct and failure to fulfil his contractual obligations vitiated the transaction and ultimately caused its collapse. That the available evidence demonstrated that it fully performed its obligations under the Sale Agreement, whereas the Plaintiff failed to comply with the essential conditions precedent to completion. 83. Relying on the definition of breach of contract in ***Black’s Law Dictionary (9th Edition),*** the Defendant submitted that a breach occurs where a party fails to perform a contractual obligation, repudiates it, or interferes with another party’s performance. It argued that the Plaintiff’s conduct fell squarely within this definition because he failed to provide the mandatory completion documents and actively obstructed completion of the transaction. 84. The Defendant further submitted that under the Sale Agreement, the parties were required to complete the transaction within ***ninety days***, and that it fully discharged its obligations by paying the agreed deposit of ***Kshs. 5,000,000/=,*** and a further ***Kshs. 33,246,091/=*** towards settlement of the Plaintiff’s outstanding loan obligations with ***Co-operative Bank*** and ***Family Bank Limited.*** These payments secured the release of the charged titles, and averted the imminent exercise of the chargees’ statutory power of sale. 85. Further, that shortly after it had redeemed the Plaintiff’s loans, the Plaintiff’s spouse, through ***Lelei & Co Advocates***, instructed the lodging of cautions against the suit properties. Despite being copied in the correspondence, the Plaintiff neither challenged the contents of the letter, nor took any steps to procure the requisite spousal consent or secure withdrawal of the cautions. 86. The Defendant also submitted that the Plaintiff aggravated the breach by falsely claiming that the original title documents had been lost and applying for their reissuance despite knowing that the titles were lawfully held pursuant to the Sale Agreement. That these actions constituted fraudulent misrepresentations intended to frustrate completion while allowing the Plaintiff to retain the benefits already received from the Defendant. 87. Further, that the Plaintiff could not cure his earlier misconduct by subsequently expressing a willingness to complete the transaction. That the Plaintiff’s conduct had already destroyed the trust necessary for completion, crystallized the breach, and justified the Defendant’s decision to rescind the Agreement. 88. In conclusion, the Defendant submitted that the Plaintiff’s failure to provide the requisite spousal consent, his alleged misrepresentations, and his acquiescence in actions that obstructed completion constituted a material and fundamental breach of the Sale Agreement. Conversely, the Defendant maintained that it had fully performed all its contractual obligations and could not be said to have breached the Agreement. The Defendant urged the Court to find that the Plaintiff was solely responsible for the failure of the transaction and the consequent collapse of the sale. 89. On ***whether the Defendant is entitled to the reliefs sought in the Counterclaim***, it submitted that having established that the Plaintiff materially breached the Sale Agreement, it was entitled to all the reliefs sought in its Counterclaim, including rescission of the Sale Agreement, restitution of all monies paid, interest, costs, and other consequential reliefs. 90. The Defendant argued that the Plaintiff’s failure to provide the mandatory completion documents, coupled with his deliberate actions aimed at frustrating completion, rendered the Agreement incapable of lawful performance and justified its termination. 91. On the remedy of rescission, the Defendant submitted that rescission is the natural and well-established consequence of a fundamental breach of contract. Reliance was placed on ***Karanja Mbugua & Another v Marybin Holding Co. Ltd [2014] eKLR****,* where the Court affirmed the right of an innocent party to rescind a sale agreement where performance becomes impossible due to the default or obstruction of the other party. 92. That the Plaintiff’s failure to furnish spousal consent or, alternatively, an affidavit of single status, together with his obstructive conduct, rendered completion impossible and entitled the Defendant to treat the Sale Agreement as rescinded. The Defendant further relied on ***Section 62*** of the ***Law of Contract Act,*** and asserted that a party is entitled to rescind a contract where an essential condition remains unfulfilled due to the default of the other party. 93. Further, that the Defendant was entitled to restitution of the sum of ***Kshs. 38,246,091/=,*** paid for the benefit of the Plaintiff; that these funds were used to discharge the Plaintiff’s indebtedness to ***Co-operative*** ***and Family Banks*** , preserve the suit properties from imminent foreclosure, and substantially improve the Plaintiff’s financial position. Therefore, allowing the Plaintiff to retain these benefits while avoiding his obligations under the Sale Agreement would amount to unjust enrichment and would be contrary to the principles of equity and fairness. 94. The Defendant urged the Court to allow the prayers sought in the ***Counterclaim***, find that the Plaintiff had fundamentally breached the Sale Agreement, declare the Agreement rescinded, order the refund of all monies paid together with interest, award costs of the suit and Counterclaim, and grant any other relief that the Court deemed just and expedient in the circumstances. 95. The above are the pleadings, the evidence adduced by the parties together with the exhibits, and the rival written submissions, which this court has carefully considered together with the applicable law, and finds the following are the issues arising for determination: 96. ***Whether the Plaintiff or the Defendant was in breach of the Sale Agreement dated 23rd June 2021.*** 97. ***Whether the Sale Agreement dated 23rd June 2021 was lawfully rescinded.*** 98. ***Who is entitled to the reliefs sought? The plaintiff in the main suit or the Defendant in its Counter-claim.*** 99. On the first issue, there is no dispute that the parties entered into the Sale Agreement dated ***23rd June 2021,*** for the sale of the suit properties for a consideration of ***Kshs. 87,000,000/=***. There is equally no dispute that pursuant to the said sale Agreement, the Defendant paid a deposit of ***Kshs. 5,000,000/=,*** and further paid substantial sums towards the discharge of the Plaintiff's indebtedness to various financial institutions. The evidence on record demonstrates that the Defendant paid a total sum ***of Kshs.*** ***38,246,091/=,*** towards the transaction. The dispute concerns which party was responsible for the failure of the transaction. 100. The Plaintiff contended and submitted that the Defendant breached the sale Agreement by failing to clear the outstanding Equity Bank facility and by failing to remit the balance of the purchase price. The Defendant, on the other hand, maintained that ***it was willing and able to complete the transaction,*** but was prevented from doing so by the Plaintiff's failure to furnish the ***requisite spousal consent*** and other completion documents necessary to facilitate transfer of the suit properties. 101. The Court has carefully considered the terms of the Sale Agreement. In the said sale agreement, ***Clause 6.3*** expressly provided for the ***completion documents*** that the Plaintiff was required to furnish before completion. Among those documents was ***spousal consent*** or an ***Affidavit of single status***. The requirement was not optional. It was a contractual obligation voluntarily assumed by the Plaintiff, and formed part of the framework upon which the Defendant agreed to purchase the suit properties. 102. This Court will be guided by the decision in ***National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another [2001] eKLR*** ,where the Court of Appeal held that courts cannot rewrite contracts for parties, and that parties are bound by the terms they freely enter into. 103. The evidence tendered before this Court demonstrates and shows that the Plaintiff's spouse objected to the transaction. ***PW2,*** the wife of the Plaintiff,testified that she had not consented to the sale and that she caused cautions to be lodged against the suit properties. Although she subsequently withdrew the cautions, the fact remains that at a critical stage of the transaction, the Plaintiff was unable to provide an unencumbered title as his spouse had openly challenged the transaction. The Court finds that this was not a minor procedural issue, but it went to the very heart of the Plaintiff’s capacity to complete the transaction and transfer a marketable title to the Defendant. 104. The Plaintiff in his evidence and submissions argued that the suit properties were acquired before marriage and therefore did not constitute matrimonial property. However, that argument does not assist him. First, the Agreement expressly required either ***spousal consent*** or an ***Affidavit of single status***. Second, the Plaintiff’s spouse had in fact asserted an interest in the properties and had taken concrete steps to stop the transaction. In those circumstances, the Defendant cannot be faulted for declining to proceed with further payments while the Plaintiff’s ability to complete the transaction remained uncertain. 105. The Court further notes that by the time the issue of spousal consent arose, the Defendant had already paid over ***Kshs. 38*** ***million*** towards the transaction and had substantially redeemed the Plaintiff’s liabilities. It would be unreasonable to expect the Defendant to continue paying the balance of the purchase price when faced with an ***unresolved challenge*** from the Plaintiff’s spouse and the existence of cautions over the suit properties. The Defendant’s position was therefore commercially and legally justifiable. 106. The Court is also not persuaded by the Plaintiff’s argument that the Defendant’s failure to clear the ***Equity Bank facility*** constituted the primary breach. Contractual obligations must be performed ***reciprocally*** and in ***good faith***. Once the Plaintiff’s inability to provide the requisite completion documents became apparent, the Defendant was entitled to suspend further performance until the Plaintiff fulfilled his obligations. The law does not require a purchaser to complete payment under a transaction whose completion has been rendered doubtful by the conduct of the vendor. 107. Upon considering the totality of the evidence, the Court finds that it was the Plaintiff’s failure to furnish the ***requisite spousal*** ***consent*** and his inability to place himself in a position to lawfully complete the transaction that precipitated the collapse of the sale. Accordingly, the Court finds that the Plaintiff, and not the Defendant was in breach of the Sale Agreement dated ***23rd June 2021.*** 108. On ***whether the Sale Agreement dated 23rd June 2021 was lawfully rescinded***, having found that the Plaintiff was in breach of the said sale Agreement, the next issue is whether the sale Agreement in issue was lawfully rescinded. 109. The Defendant’s position is that it rescinded the Agreement pursuant to ***Clauses 9.1 and 9.8*** after it became evident that the Plaintiff could not fulfil the warranties and obligations he had undertaken under the Agreement. The Plaintiff contends that no valid termination notice was issued and that the said sale Agreement remained in force until he issued the completion notice dated ***14th August 2023***. 110. The Court has considered these competing arguments. While the Defendant may not have issued a formal completion notice in the manner advocated by the Plaintiff, the evidence demonstrates that the Defendant consistently communicated its position, that the transaction could not proceed in the absence of spousal consent, and demanded refund of the monies already paid. The correspondence exchanged between the parties clearly shows that the Defendant treated the transaction as incapable of completion due to the Plaintiff’s breach. 111. More importantly, rescission is available where a party is guilty of a fundamental breach going to the root of the contract. In the instant case, the Plaintiff’s inability to provide a clear and marketable title free from objections by his spouse struck at the foundation of the transaction. The Defendant could not be compelled to continue performing its obligations where the Plaintiff had demonstrated an inability to fulfill essential completion requirements. 112. Therefore, this Court finds and holds that the Plaintiff’s breach entitled the Defendant to treat the Sale Agreement as terminated and rescinded. Accordingly, the Sale Agreement dated ***23rd June*** ***2021,*** was lawfully rescinded. 113. On ***who is entitled to the reliefs sought***, in his Plaint, the Plaintiff seeks declarations that the Defendant breached the Agreement, a declaration limiting his refund obligations, an order compelling return of title documents, removal of restrictions, special damages, general damages, interest and costs. 114. However, having found that the Plaintiff was the party in breach of the Sale Agreement, the foundation upon which the Plaintiff’s claim rests collapses. The Court cannot issue orders in favour of a party whose own conduct occasioned the failure of the transaction. Neither can the Court award damages for breach of contract to the party responsible for that breach. 115. The Plaintiff’s claim for special damages in the sum of ***Kshs.*** ***130,000,000/=,*** based on an alleged prospective sale is particularly untenable. Not only was such loss not strictly proven, but the alleged loss was too remote and speculative to be recoverable in the circumstances of this case. The Plaintiff cannot attribute his inability to conclude a subsequent transaction to the Defendant when the original transaction had not been properly brought to an end, and when the Defendant’s interest in the properties remained unresolved. 116. In fact, this court further finds and holds that the plaintiff attempt to sale the suit properties to a third party at a high amount after frustrating the Defendant’s effort to complete the transaction was not done in ***good faith***, was fraudulent and is against the laid down rules of conveyancing. If such a conduct is encouraged, then the sale transactions would ordinarily collapse, upon the vendor obtaining another purchaser offering a higher purchase price than the initial purchaser. 117. The Court therefore finds that the Plaintiff is not entitled to any of the reliefs sought in the Plaint and the same are declined. 118. In the ***Counterclaim***, the Defendant seeks declarations that the Plaintiff breached the Sale Agreement, that the said Sale Agreement was ***lawfully rescinded***, refund of ***Kshs.* *38,246,091/=*,** together with interest and costs. 119. The evidence on record establishes and proves that the Defendant paid a total of ***Kshs. 38,246,091*/=,** for the benefit of the Plaintiff. The Plaintiff admitted receiving the benefit of those payments. Having found that the transaction failed due to the Plaintiff’s breach, the Defendant is entitled to ***restitution o***f the monies paid. To hold otherwise would permit the Plaintiff to retain the benefit of ***redeemed properties*** and ***discharged liabilities*** while escaping his contractual obligations. Such a result would offend the equitable doctrine against unjust enrichment. 120. Therefore, this Court is satisfied that the Defendant has proved his allegations as contained in its ***Counterclaim dated 30th October 2023,*** on the required standard of balance of probabilities and it is entitled to the reliefs sought thereunder. 121. Having carefully analyzed the available evidence, and relying on the relevant provisions of law, and decided cases, this court in the end result, enters judgment for the Defendant as against the Plaintiff as prayed in the ***Counter-claim*** in the following terms: 122. ***The Plaintiff’s suit as contained in the plaint dated 30th October 2023, is hereby dismissed in its entirety with costs to the Defendant.*** 123. ***A declaration is hereby issued that the Plaintiff’s failure to obtain and provide the requisite spousal consent and/or affidavit of single status constituted a breach of the Sale Agreement dated 23rd June 2021.*** 124. ***A declaration is hereby issued that the Sale Agreement dated 23rd June 2021 was lawfully rescinded.*** 125. ***Judgment is hereby entered for the Defendant against the Plaintiff in the sum of Kshs. 38,246,091/=.*** 126. ***Interest on (D) above at court rates from the date of payment until settlement in full. However, since the said amount was used to redeem the Plaintiff’s liability in the banks, the same to be paid within a period of 90days from the date hereof.*** 127. ***Upon payment of the amount in (d) above, the Defendant and/or the Interested Party shall release to the Plaintiff all*** ***original title documents and completion documents relating to parcels CIS MARA/OLDONYO RASHA/148, 357, 360, 361 and 365.*** 128. ***The Defendant is entitled to costs of the suit and the Counterclaim.*** 129. ***On any other relief, failure and/or default by the Plaintiff to refund the Amount stated in (D) above, AND IN THE ALTERNATIVE, the Plaintiff is directed to transfer a portion of land equal to the value of the amount in (D) above. In default, the Deputy Registrar of this court to sign all the requisite transfer documents, given that the Defendant paid monies to the Banks to redeem the Plaintiff’s properties.*** ***It is so ordered.*** ***Dated, Signed and Delivered Virtually at Narok this 29th day of JUNE 2026*.** **L. GACHERU** **JUDGE.** **Delivered online in the presence of:** **Elijah Meyoki – Court Assistant** **Ms Njeri holding brief for Mr Solonka for the plaintiff** **No appearance for the Defendant** **No appearance for the Interested Party** **L. GACHERU** **JUDGE.**