https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4254

Wandera v Kinuthia (Environment and Land Appeal E013 of 2025) [2026] KEELC 4254 (KLR) (2 July 2026) (Judgment) Neutral citation: [2026] KEELC 4254 (KLR) Republic of Kenya In the Environment and Land Court at Busia Environment and Land Appeal E013 of 2025 L Waithaka, J July 2, 2026 Between Peter Okunjo Wandera Appellant and Christine Wanjiku Kinuthia Respondent (Being an Appeal from the Judgement of Hon. E A Nyaloti CM delivered on 17th June 2025 in Busia ELC NO. E098 of 2021) Judgment Lower Court suit 1.By a plaint dated 13th July 2021, the respondent herein instituted a suit in the lower court to wit Busia CMC ELC Case No. E098 of 2021 seeking judgment against the defendant named in that suit, now appellant, for an order of specific performance of a total of 0.05 ha of land comprised in the parcels of land known as Bukhayo/Mundika/9532 and 9530. In alternative to the prayer for specific performance, the plaintiff/respondent sought an order for refund/recovery of the purchase price paid, the expenses incurred/special damages, general damages and interest thereon. 2.As can be discerned from the averments/ contentions in the plaint, the plaintiff/respondent’s suit was premised on the ground that he purchased from the defendant/appellant a portion of land measuring 0.05ha comprised in the parcel of land known as Bukhayo/Mundika/9532 at the price of Kshs. 500,000/-; that she paid the agreed purchase price in instalments of Kshs. 400,000/- and Kshs. 100,000/-; that she hired the services of a surveyor to demarcate her portion for purposes of fencing and transfer of the portion she bought; that during survey of the land sold, the surveyor established that the parcel of land bought measured 0.034 ha and not 0.05ha as agreed in the sale agreement; that she approached the defendant/appellant and upon re-negotiation, the defendant agreed to make up the deficit from parcel number Bukhayo/Mundika/9530 belonging to him which is adjacent to parcel number Bukhayo/Mundika/9532. 3.It was the plaintiff’s pleaded case that pursuant to the re-negotiated agreement, she fenced off her parcel of land as she awaited amendments and/or transfer of the relevant documents. Lamenting that the defendant/appellant failed to effect the promised amendments and to execute transfer documents in her favour, the plaintiff/respondent filed the suit hereto seeking the reliefs listed herein above. 4.The defendant/appellant filed a statement of defence dated 4th November 2021, in which he admitted or acknowledged having entered into an agreement for sale of the parcel of land known as Bukhayo/Mundika/9532 to the plaintiff/respondent but denied the plaintiff’s /respondent’s contention that the portion sold was 0.05ha and having re-negotiated the agreement with the plaintiff/respondent with a view of making good the alleged deficit in the parcel of land sold. 5.Explaining that the parcel of land he sold the plaintiff/respondent was clearly demarcated on the ground, the defendant/appellant accused the plaintiff/respondent of having unlawfully/illegally entered onto Bukhayo/Mundika/9530 and fenced a portion thereof alongside L.R No. Bukhayo/Mundika/9532. The defendant/appellant further pleaded/contended that he had all along been willing to facilitate the transfer of L.R No. Bukhayo/Mundika/9532 to the plaintiff/respondent but was prevented from doing so by the plaintiff/respondent’s refusal to prepare documents in respect of the parcel of land sold and encroachment onto Bukhayo/Mundika/9530 which does not form part of the parcel of land sold. 6.Contending that the plaintiff/respondent did not deserve an order for specific performance, the defendant/appellant urged the court to dismiss the plaintiff/respondent’s suit with costs to him. 7.The plaintiff/respondent filed a reply to defence, dated 8th March 2022 in which she reiterated the averments in her plaint. 8.When the suit came up for hearing, the plaintiff relied on her witness statement after it was adopted as her evidence in chief. She also produced the documents in her list of documents as Pexbt 1 to 5. 9.In re-examination, the plaintiff stated as follows: -“I bought land from the defendant. I bought Bukhayo/Mundika/9532 and 9530. I fenced 0.05ha. My agreement indicates that I bought land from the defendant. I do not know how to read English. Peter sold me a portion of land. 10.The plaintiff further stated: -“I bought 0.05 land from Peter Okudo Wandera. I was not given O.05 portion of land. I bought one piece of land 0.05. I have not been given the portion of land that I bought.” 11.The defendant/appellant relied on his witness statement after it was adopted as his evidence in chief. 12.In cross examination, the defendant stated as follows: -“The plaintiff forced me to sell her land. The plaintiff paid me Kshs.400, 000/- to buy land...The first signature is mine. I know Peter Ishieri. I went with him to the advocate known as Peter Luchivya. I received money. The plaintiff brought money at 10 pm. Ishieri is the one who counted the money…The surveyor came to my land without my knowledge. The plaintiff paid Kshs. 400,000/-….The brokers did not know the land. The land. 9532 is the land. I agreed to sell the land to the plaintiff. The land is in the search. I have a copy of the title deed. I sold 0.05. The surveyor came to the ground. I have not given the plaintiff. I do not want to give the land to the plaintiff. I do not have the money that the plaintiff gave me. 13.In re-examination, the defendant stated that the land he was to sell to the plaintiff is Bukhayo/Mundika/9532 and that the plaintiff did not pay all the money. 14.Upon considering the case presented before her, the learned trial magistrate determined that the plaintiff/respondent had proved her case on a balance of probabilities and entered judgment in her favour in the following terms: -“The court declines to grant an order for specific performance but hereby orders that the defendant do refund the purchase price of Kshs. 500,000/-, the surveyor’s costs of Kshs.102, 000/-, Kshs. 25,000/- as fencing costs and agreement fees of Kshs. 74, 510 to the plaintiff. Interest on (i) above at court rates from the date of filing the suit until payment in full. The defendant shall bear the costs of the suit”. The Appeal 15.Dissatisfied with the decision of the learned trial magistrate, the defendant/appellant appealed to this court on the grounds that the learned trial magistrate erred in law and fact by: -i.Finding that he (appellant) should pay Kshs. 500,000/- to the respondent, full purchase price, which was not paid in full hence a wrong decision;ii.Ordering payment of surveyors costs, fencing costs and agreement fees to the respondent yet the same had not been substantiated;iii.Failing to evaluate and analyze his (the appellant’s) submissions and evidence hence arriving at a wrong decision;iv.Misdirecting herself on the law and fact in regard to breach of contract and its remedies thereto hence wrong decision;v.Ignoring the evidence of undue influence during construction of the contract. 16.The defendant/appellant prays that the appeal be allowed, the judgment of the lower court be set aside and this Honourable Court to give further directions on the matter. 17.The appeal was disposed of by way of written submissions. Appellant’s submissions 18.In his submissions dated 27th April 2026, the appellant makes reference to the sale agreement executed between the appellant and the respondent, P exbt 1, which indicates that he was paid kshs. 400,000/- leaving a balance of Kshs. 100,000/- unpaid and submits that the learned trial magistrate without any reason determined that the appellant should refund Kshs. 500,000/- which was not substantiated at all. 19.Concerning the award of Kshs. 102,000/-, 25,000/- and 74, 510/- being the surveyors’ fees, fencing costs and agreement fees, the appellant faults the learned trial magistrate for making those awards yet no receipts were tendered in evidence to show that the expenses were indeed incurred. The appellant also faults the learned trial magistrate for making awards in the nature of special damages when they were not specifically pleaded and strictly proved as by law required. 20.Concerning the claim or contention that the learned trial magistrate failed to evaluate and analyze his submissions and evidence thereby arriving at a wrong decision, the appellant submits that the learned trial magistrate failed to evaluate his pleaded case which is that the plaintiff/respondent illegally and unlawfully encroached on his parcel of land Bukhayo/Mundika/9530 claiming that what he sold to her was less than what she bought. 21.The appellant takes issue with the plaintiff/appellant’s pleaded case to the effect that she bought two parcels of land from him when in actual fact she only bought one. In view of the foregoing, the appellant urges this court to find the appeal to be merited and allow it with costs. Respondent’s submissions 22.On her part, the respondent, has submitted/addressed the court as follows: -“…The agreed purchase price was Kshs. 500,000/- . The plaintiff tendered evidence that she paid the Kshs. 500,000/- in fact more.It is clear from the defendant’s statement, which was adopted as evidence in chief and the letters from Bogonko Otanga & Company Advocates under instruction from the appellant that Kshs. 500,000/- was paid. The dispute was about the acreage. The appellant on cross examination stated he was paid Kshs. 400,000/-. The Kshs. 400,000/- was paid at the time of signing the agreement while Kshs. 100,000/- was paid on 6.4.2021.Both in the defence dated 4-11-2021 and in the appellant’s witness statement and in the letters dated 27-5-21 and 3-5-21, the issue of balance was not raised. It was equally not raised during the hearing. Therefore, the appellant cannot raise it on appeal.The respondent hired the services of a Surveyor, fenced off the land, all these costed Kshs. 48,000/- as stated in evidence in chief.The appellant admitted the Surveyors were on the land and the respondent fenced the land.The agreement, the last clause as quoted herein before provided for damages and expenses/costs incurred. Thus an award of Kshs. 74, 500/- and 25,000/- being damages, the surveyor’s fees, fencing and other costs is reasonable. In any event, this court being the first appeal, it has the duty to evaluate the evidence and reach and make an independent award.The appellant breached the sale of land agreement. The respondent paid the agreed purchase price. The appellant has not refunded the consideration paid, he cannot have both the land and the money. They agreed that;“any party in breach of this agreement shall be liable to the innocent party in damages and any costs that may arise.”The appellant was silent on the damages. He left it to court to court to assess. The award of Kshs. 74, 500/- as damages for breach of agreement is reasonable.The appellant received the purchase price and put the respondent in possession of the purchased land, brought surveyors to demarcate the land, in effect created a constructive trust in favour of the respondent herein in respect of the subject matter.In applying the principles of equity, natural justice given the circumstances of this case the respondent was entitled to specific performance not withstanding that the relevant consent of the Land Control Board was never obtained.The appellant has not refunded the purchase price he received from the respondent to date, he has not transferred the land to the Respondent. This is unjust….” Analysis and determination 23.In exercise of the duty vested in this court as a first appellate court, I have re-evaluated the evidence adduced before the lower court with a view of reaching my own conclusion on it. I have reminded myself that a first appellate court will not ordinarily interfere with findings of fact by the trial court unless they were based on no evidence at all, or were based on misapprehension of the evidence or unless it is demonstrated that the trial court acted upon wrong principles in reaching the finding. In that regard, see Selle & Another vs. Associated Motor Boat Co. Ltd (1968) E.A 123 and Mwanasokoni vs. Kenya Bus Service Ltd (1982-88)1 KAR and Kiruga vs. Kiruga & Another (1988) KLR 348. 24.From the pleadings filed, the evidence and the submissions filed by the parties, it is the considered view of this court that the learned trial magistrate properly directed herself by ordering the appellant to refund Kshs. 500,000/- with interest thereof from the time of filing the suit to the time of payment in full. So was the award of costs. Despite having stated in his statement of defence and evidence in chief, the appellant in his oral testimony before the court did clearly indicate that he was not willing to transfer the land to the plaintiff/respondent. If he was not willing to transfer the land on account of the misunderstanding that arose after the plaintiff discovered what was sold to her was less than what is in the sale agreement, the defendant/appellant ought at least to have offered to refund the purchase price. Keeping the land as well as the purchase price is clearly inequitable and unjust. 25.Whilst in the agreement parties provided that the party in breach of its terms will pay the innocent party damages and costs which may arise, a party seeking to rely on that clause is supposed to specifically plead the damages and costs incurred and by way of evidence strictly prove them as by law required. 26.Whereas the plaintiff had in her plaint indicated that she had a prayer for payment of expenses incurred, I note that she had not specifically pleaded them (that is to say she had not provided particulars of the expenses she incurred). She also failed to strictly prove them by way of production of receipts or any other document capable of proving that she indeed paid for the expenses. By awarding the said expenses when they were not specifically pleaded and strictly proved as by law required, the learned trial magistrate committed an error of law warranting interference with that award. 27.I also note that the learned trial magistrate misapprehended the respondent’s claim as regards the total expenses incurred. According to the respondent’s witness statement, she incurred expenses amounting to Kshs. 102,010/- and not the amount the learned trial magistrate awarded her. In that regard, see the respondent’s witness statement, which at the relevant part is as follows: -“…the defendant has failed to give land measuring 0.05 ha or refund the amount of Kshs. 500,000/-, the expenses amounting to 102,010/- being survey fees of Kshs. 25,000/-, fencing/gate 74,510 and agreement fees 2,500/-….” 28.Concerning the claim/contention by the appellant that he was paid Kshs. 400,000/- and not the whole of the purchase price, I find that claim to be an afterthought considering that he neither raised that issue in his statement of defence, witness statement and the letters he wrote concerning the dispute between him and the respondent over the transaction he entered into with the respondent. 29.The upshot of the foregoing is that the appeal partially succeeds in that I set aside the award of Kshs.102,000/-, being the surveyor’s fees; Kshs. 25,000/- being fencing costs and Kshs. 74, 510 being agreement fees. 30.On costs, each party shall bear their own costs of the appeal. 31.Orders accordingly. JUDGEMENT DATED, SIGNED AND DELIVERED AT NYAHURURU THIS 2ND DAY OF JULY, 2026 THROUGH MICROSOFT TEAMS.L. N. WAITHAKAJUDGEIn the presence of:-N/A for the AppellantMr. Otieno h/b for Mr Fwaya for the RespondentCourt Assistant: Ajwang