https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4134

Ndungu t/a Urutagwo Mwiruti Women Group v Kanyia (Environment and Land Case 1255 of 2013) [2026] KEELC 4134 (KLR) (6 July 2026) (Judgment) Neutral citation: [2026] KEELC 4134 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case 1255 of 2013 CA Ochieng, J July 6, 2026 Between Ann Warimu Ndungu T/A Urutagwo Mwiruti Women Group Plaintiff and Eve Mutio Kanyia Defendant Judgment 1.The Plaintiff commenced this suit vide a Plaint dated 17th October 2013 and amended on 28th April 2018. She claimed to be the lawful owner of land parcel LR 6845/183, Utawala. She contended that she subdivided the said parcel into several plots, including plot Nos. 66, 68, and 70 in the year 2000. Further, that the Defendant offered to purchase the said plots by paying a deposit but she failed to complete the transaction by paying survey fees, transfer fees and other requirements to enable transfer to be effected in her name. She averred that owing to lapse of their contract by effluxion of time, she sold the plots to other people whom the Defendant unlawfully kicked out in 2013 using hired gangsters. 2.She sought for orders and judgement for:a.Spent.b.A declaration that the Defendant’s contract for the purchase of the said plots No’s 66, 68 and 70 on LR No. 6845/183 is a nullity and not enforceable in law.c.A permanent injunction to restrain the Defendant, her agents or servants, or those claiming under her from taking forcible possession, constructing on, or in any way alienating, interfering with the suit premises No’s 66, 68 and 70 on LR No. 6845/183 pending the hearing and determination of this suit.d.General damages.e.Costs of this suit plus interest at court’s rates.f.Any other relief just and expedient in the circumstances. Response 3.In opposition, the Defendant filed a Defence and Counterclaim to the amended Plaint. She denied allegations levelled against her in the Plaint and averred that she paid kshs.185,000/= to the Plaintiff in full as purchase price and administrative fees and that the contract between them, has never been rescinded. 4.She insisted that she purchased plot Nos. 66, 68 and 70 and sought for the following Orders in the Counterclaim:a.Specific performance.b.That costs of this suit be awarded to the Plaintiff in the Counterclaim.c.Any other or further relief that this Honourable court may deem fit to grant in the circumstances. 5.In response to the Counterclaim, the Plaintiff filed a reply to Defence and Counterclaim in which she denied allegations levelled against her and averred that the Defendant frustrated the contract between them and that the Counterclaim is barred by the Limitation of Actions Act. 6.The suit was heard by way of viva voce evidence. 7.The record indicates that on 13th December 2024, the case for the Plaintiff in the main suit was dismissed for want of prosecution. It is hence the Defendant’s Counterclaim that proceeded. Evidence of the Plaintiff in the Counterclaim 8.The Plaintiff in the Counterclaim testified as PW1. It was her testimony that in the year 2000, the Defendant in the Counterclaim was marketing plots for sale on behalf of Urutagwo Mwiruti Women Group in Embakasi, and that she bought plot Nos. 66, 68 and 70 respectively for which she paid ksh.185,000/= as consideration. She claimed that in June 2001, she was given ownership certificates and became owner of three (3) shares in the said women group. She pointed out that each plot cost kshs.60,000/= and that she paid an additional kshs.5,000 for administration/transaction fees. 9.It was her testimony that since June 2001, she has been waiting to be issued with title deeds by the Defendant in the Counterclaim but none was availed. Subsequently, she decided to develop her parcels as she awaited the titles but when she went to her plots, she found a trespasser by the name Julius Maina Thuo who claimed that he had purchased the suit plots from the said Defendant at kshs.1.2 million, yet the Defendant had no capacity to sell the same plots as they had already been sold to her. 10.She confirmed that she has partially developed the suit plots with a building on Plot No. 70 and slab on plots 66 and 68. She averred that the Defendant in the Counterclaim never tried to reach her before unilaterally deciding to unlawfully ‘rescind’ her contract. She produced her List and bundle of documents dated the 2nd September, 2019 as P. Exhibits Nos. 1 – 14. 11.In cross-examination, PW1 explained that she was dealing with the Defendant in the Counterclaim as the chair of Urutagwo Mwiruti Women Group, which owned the suit plots, though she did not produce a registration certificate from the Registrar of Societies, indicating the registration status of the said women group. Further, when asked for minutes allocating her the suit plots, she did not have them but was emphatic that it is the group’s secretary, one Virginia Wamaitha, who was introduced to her by the Defendant. While she produced share certificates issued by the said Urutagwo Mwiruti Women Group, she confirmed that she was not its member and did not have sale agreements in Court nor were her receipts stamped. She stated that she paid the purchase price in cash and had witnesses to that effect. 12.She reiterated that she took possession of the suit plots in April 2000. She also confirmed that she had filed a suit before this Court before, concerning the said issue, but the suit was dismissed. 13.The Defendant in the Counterclaim did not call any witness in evidence. 14.Parties thereafter filed their respective written submissions. Submissions 15.The Plaintiff in the Counterclaim submitted that since the Defendant therein, did not challenge the authenticity of her documents or adduce evidence to rebut her case, her evidence remains uncontroverted and is weighty enough to settle the dispute. 16.She also submitted that while the issue of the capacity of the Defendant in the Counterclaim being sued arose during cross-examination, yet this suit was instituted by the said Defendant hence if she had capacity to sue then she could also be sued. 17.She pointed out that at paragraph 4 of the amended Plaint, the Plaintiff in the main suit had admitted that she paid the purchase price and what was remaining was survey fees, transfer fees and acquisition of the Land Control Board consent. Therefore, having fully paid the purchase price for the suit plots, and taken possession, she acquired an overriding interest thus the Plaintiff in the main suit is estopped under the doctrine of constructive trust and estoppel to honour her obligations under the contract between them. 18.To buttress her averments, she relied on the following decisions: Maina & 87 Others v Kagiri (Civil Appeal Nos. 6, 26 & 27 of 2011 (Consolidated) (2014) KECA 880 (KLR), FMNK v PDM; Initiative for Strategic Litigation in Africa (ISLA) (Amicus Curiae) (2023) KESC 2 (KLR) and Kanyvungu Njogu v Daniel Kimani Maingi (2006) eKLR. 19.The Defendant in the Counterclaim filed written submissions on 3rd July 2026. She insisted that the Plaintiff in the Counterclaim failed to establish that Anne Ndungu had capacity and authority to bind it. Further that plaintiff (Counterclaimant) did not provide documents to prove her claim. She insisted that the Counterclaimant failed to prove she paid the full purchase price. She reiterated that the Counterclaimant had not prove her claim on a balance of probability. To support the averments, she relied on the following decisions: Mwangi vs Wambugu (1984) KLR; and Scholastica Wangari Wanjiku vs. SDV Transami Kenya Limited & Another (1984) KLR. Analysis and Determination 20.Upon consideration of the Counterclaim, Reply to Defence and Defence to Counterclaim, witness testimony, exhibits and rivalling submissions, the only issue for determination is whether the Plaintiff in the Counterclaim is entitled to an order of specific performance. 21.The Plaintiff in the Counterclaim’s case is that she purchased Plot Nos. 66, 68 and 70 hived off LR No. 6845/183 in the year 2000 from the Defendant therein, acting on behalf of Urutagwo Mwiruti Women Group at a consideration of Kshs.185,000/=, inclusive of administrative charges. She contended that she paid the full purchase price, developed the plots and that she is in possession thereof. She urged the Court to compel the Plaintiff in the main suit to complete the transaction, and sought for an order of specific performance. The Plaintiff in the main suit who was the Defendant in the Counterclaim, did not tender any evidence to controvert the Plaintiff’s averments. The Plaintiff in the Counterclaim argued that since the Defendant therein failed to tender any evidence, hence her claim is uncontroverted. 22.In Kenya Power & Lighting Company Limited v Nathan Karanja Gachoka & Another [2016] eKLR, it was held that:“I am of the opinion that uncontroverted evidence must bring out the fault and negligence of a Defendant, and that a court should not take it truthful without interrogation for the reason only that it is uncontroverted. A plaintiff must prove its case too upon a balance of probability whether the evidence is unchallenged or not.” 23.In the foregoing, I find that it was incumbent upon the Plaintiff in the Counterclaim, to prove her case. 24.The Plaintiff in the Counterclaim has sought for an Order of specific performance. Specific performance is an equitable remedy issued to compel a party to perform contractual obligations where damages would not constitute adequate compensation. The principles for this remedy were discussed in the case of Reliable Electrical Engineers Ltd V Mantrac Kenya Limited (2006) eKLR, where the Court stated thus:“The Jurisdiction of specific performance is based on the existence of a valid enforceable contract. It will not be ordered if the contract suffers from some defect, such as failure to comply with the formal requirements or mistake or illegality, which makes the contract invalid or enforceable. Even when a contract is valid and enforceable, specific performance will however not be ordered where there is an adequate alternative remedy. In this respect damages are considered to be an adequate alternative remedy where the claimant can readily get the equivalent of what he contracted for from another source. Even when damages are an adequate remedy, specific performance may still be refused on the ground of undue influence or where it will cause severe hardship to the defendant.” 25.In William Muthee Muthami v Bank of Baroda [2014] eKLR the Court of Appeal stated that:“In the law of contract, the aggrieved party to an agreement must, in addition, prove that there was offer, acceptance and consideration. It is only when those three elements are available that an innocent party can bring a claim against the party in breach.’’ 26.From perusal of the pleadings and exhibits, I note the Plaintiff in the main suit admitted that they indeed entered into a Sale Agreement which was duly executed by the Defendant in the Counterclaim. The Plaintiff in the main suit admitted that the Plaintiff in the Counterclaim had paid the full purchase price but delayed in paying the transaction costs hence she sold the land to a third party. However, the Plaintiff in the Counterclaim disputed this and insisted that she paid the transaction costs as she paid a total of Kshs.185,000 which had included Kshs.5000 as transaction fees since each plot had costed Kshs.60,000. 27.I note the Plaintiff in the Counterclaim is the one in possession of the suit plots and developed them partially. I note the Defendant in the Counterclaim failed to present any evidence to confirm that the Plaintiff therein failed to pay the transaction costs. 28.Based on the facts as presented while associating myself with the decisions quoted, I find that the Plaintiff in the Counterclaim has indeed made a case for specific performance as there is a duly executed contract. Further, I find that she fulfilled her obligations under the said contract by paying the full purchase price to the Defendant for the purchase of the aforementioned plots including the transaction costs but it is the Defendant in the Counterclaim who failed to comply with her obligation. 29.In the foregoing, I find that the Plaintiff in the Counterclaim has proved her case on a balance of probability and will proceed to enter judgement in her favour in the following terms:a.An Order of Specific performance be and is hereby issued compelling the Defendant in the Counterclaim to effect transfer of Plot Nos. 66, 68 and 70 hived off LR No. 6845/183 to the Plaintiff in the Counterclaim within ninety (90) days from the date hereof.b.That costs of this suit be and is hereby awarded to the Plaintiff in the Counterclaim. DATED SIGNED AND DELIVERED AT NAIROBI THIS 6TH DAY OF JULY, 2026CHRISTINE OCHIENGJUDGEIn the presence of:Were for Defendant in the Main Suit and Plaintiff in CounterclaimMs Onyonyi for Outa for Plaintiff in Main suit and Defendant in Counterclaim.Court Assistant: Vena