https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/521

REPUBLIC OF KENYA IN THE SENIOR PRINCIPAL MAGISTRATES’ COURT AT MUTOMO ELC NO. E005 OF 2022 SAMUEL NZOMO MUSUNA……………………PLAINTIFF VERSUS AHMED ABDULLAHI--------------------------------DEFENDANT **JUDGEMENT** 1. The Plaintiff, in his plaint dated **19/5/2022** and filed on **23/5/2022** seeks the following orders against the Defendant. 2. *A declaration that the undated written agreement of* ***2014*** *between the Plaintiff and the Defendant is null and void and hence unenforceable on account of failure of consideration and lack of capacity on the part of the defendant.* 3. *An order directing that the Plaintiff and the Defendant be restored to their original positions before signing of the agreement in* ***2014*** *and more particularly that any claim of right by the Defendant over the suit property known as* ***Mutomo/Kawelu/1665*** *(formerly* ***Plot 1203****) emanating from the agreement of 2014 be vacated.* 4. *An order directing that possession of motor vehicle registration number* ***KAG 040T*** *be restored to the Defendant.* 5. *A permanent injunction barring the Defendant whether by himself, his servants or his agents from entering, accessing, occupying, clearing vegetation, fencing, developing, selling, alienating, transferring, subdividing, or in any other way interfering with the current physical or ownership status of property known as* ***Mutomo/ Kawelu/1665.*** 6. *General damages for breach of contract.* 7. *Costs of the suit.* 8. *Any other relief that this Honorable Court may deem fit and just to grant* 9. The cause of action arises from an agreement entered between the Plaintiff and the Defendant sometimes in the year 2014. By the aforesaid agreement, the plaintiff was to give a portion measuring **30\*33** meters of **MUTOMO/KAWELU/1665** (formerly known as **Plot NO. 103**) hereinafter referred to as the -*suit land-* in exchange of motor vehicle number **KAG 040T** hereinafter referred to as subject motor vehicle. 10. The plaintiff avers that the aforesaid contract was tainted with fraud on the part of the Defendant. Further that the agreement is voidable -at his instance on account of: misrepresentation, lack of consideration as well as capacity to contract on the part of the Defendant 11. It is the plaintiff’s case that- the Defendant at the time of execution of the contract- misrepresented to him that he was the register owner of subject motor vehicle; only for him to discover that it was registered in the name of a third party (The German Development Service kenya). Thus, the Defendant had no capacity to transfer a good title to the Plaintiff. Further that demands to have the plaintiff honor his part bargain in the contract have not yielded any fruits. 12. The plaintiff claims innocence on his part and thus seeks equitable remedy of recission of the subject contract and to have the subject property restored to him as well as have the subject motor vehicle restored to the defendant. 13. In his Statement of Defence dated **5/7/2022** and filed on an even date, the defendant admitted at paragraph **3** of the Plaint-that the plaintiff owns the subject property. He however denied particulars of fraud and/or misrepresentation -at the time of the execution of the agreement. In addition, he pleaded the maxim *one who comes to equity must come in clean hands.* 14. In his counter-claim, the defendant avers that the plaintiff has not honoured his part of bargain of the contract- to have the suit property transferred and registered in his name. He therefore prays that the plaintiff be ordered to transfer the suit property to him and in default, order the Executive Officer (now called Court Administrator) of this court be ordered to execute the requisite transfer documents. Finally, is the prayer for costs and interests of the counter claim. 15. The plaintiff testified as **PW1** and called Michael Mwatu Kavuli (**PW2**) and Catherine Nzomo as (**PW3)** the Defendant was the sole witness in his case. Upon close of hearing, each party filed their submissions. Those of plaintiff are dated **17/3/2026** whereas those pf Defendant are dated **15/6/2026.** **Analysis and determination** 1. I have considered the pleadings, evidence and submissions of the parties. There no is dispute as to the existence of the subject agreement between the Plaintiff and the defendant. What I gather to be the bone of contention is whether or not each of the parties honored their part of the bargain. Tied to this is what should be recourse for breach of terms and conditions. In other words which of the parties is innocent herein and which remedies are available to him. 2. I am therefore called upon to consider the subject contract, evaluate the evidence of the parties with a view to establishing whether any of parties is in breach of the terms and conditions of the agreement. In doing so, I am acutely aware that I have no role in re-writing what parties have put down. In deed I am well guided by findings of the court of Appeal case of **National Bank of Kenya ltd –vs- Pipeplastic Samkolit (k) ltd & Another [2001] KECA 362 (KLR)** where it was stated; “**A court of law cannot re-write a contract between the parties. The parties are bound by their term of contract, unless coercion, fraud, undue influence is pleaded and proved. It is not the function of this court to allow a party to escape from a bad bargain”** 1. **PW1** produced the subject contract as **PEX-2**. The contract does not give the exact date when it was executed. It is however labelled “**2014”** at the top. The contract was executed between the Plaintiff and defendant and was witnessed by three individuals: - Catherine Nzomo (**PW3**), Michael mwatu Kavuli (**PW2),** Samuel Mutuku mbali and John Mwandikwa Mutisya. 2. Since each party place blame on the other with regard to non-performance of their respective obligations under the contract, I proceed to examine what where the terms in the contract in the event of breach. The contract stipulated as follows; “*Mr Musuna assumes total responsibility of the vehicle from the date of signing this agreement and at no given time will liability be transferred to Ahmed.* *Mr Ahmed has argued Mr Musuna has assured Mr. Masuma that the car is clean of any documentation problem. If any documentation problem arise; Mr Ahmed will be responsible and Mr Musuna will also be responsible if document problem (sic) face Mr. Ahmed in future”* 1. From the evidence of both the plaintiff and defendant, it is clear that upon execution of agreement there was exchange of subject motor vehicle from the defendant to plaintiff and the suit property from Plaintiff to Defendant. 2. Later, on **21/8/2019**, the plaintiff had title to the suit property issued in his name. There is no evidence as to whether the Plaintiff has ever caused the portion of the suit property be transferred to the defendant. On the other hand, the records from the NTSA show that the subject motor vehicle is registered in the name of German Development Service (Kenya). There is no evidence to indicate any effort or step made to have it transferred to the Plaintiff. These point out clearly that the contract was not completed and that both parties did not fulfill their respective obligations under the agreement. ***What remedies are available to the parties?*** 1. The Plaintiff submitted that he is entitled to equitable remedy of recession. He argues that the defendant fraudulently misrepresented, at the time of execution, that he owned and further that the motor vehicle was registered in his name. He takes the view that the contract was thus void *ab intio* and as he had no good legal title capable of being transferred to the plantiff. 2. The principle of *nemo dat quod non habet* was invoked and the English case of **Bishopgate Motor Finance Corporation ltd –vs- Transport Brakes ltd (1949) 1KB 322** cited in support of this supposition as well of Kenyan case **Diamond trust Bank Kenya ltd –vs- Said Hamad Shamisi & 2 Others (2015) eKLR** 3. The Plaintiff further argues that the Defendant is not entitled to an order of **Specific performance** sought. He takes the view that this remedy is not granted as a matter of right and that being an equitable remedy, the party seeking it must demonstrate that he is approaching the court with clean hands, good faith and is willing to honour his obligations. 4. In this respect he urges the court not to exercise its discretion in favour of Defendant because he did not disclose that the motor vehicle was not registered in his name. The case of **Reliable Electrical Engineers (k) ltd –vs- Mantrac kenya Limited (2006**) **eKLR** was relied upon to buttress the plaintiff’s argument. 5. The Defendant argues that the plaintiff did not reveal that at the time of execution of the contract that the suit property was not registered in his name. Thus, he equally has come with unclean hands and not entitled to remedy of recession. He takes the view that if the court were to rescind the contract herein, the same will amount to double benefit and an unjust enrichment on part of plaintiff. His argument is premised on the depreciating nature of motor vehicle that as opposed to appreciating nature of land. He relied on **Mukana –vs- Mutani [2023] KEELC 16868 (KLR)** 6. The remedy of rescission aims at restoring the parties to original position. In the effect the contract is created as void from inception. It is available where a contract is proved to have been executed through: misrepresentation, duress, fraud- see the House of Lords case of **Johnson –vs- Andrew [1980] AC 367.** 7. In the present matter, the plaintiff argues that the Defendant misrepresented to him that he was the owner of subject motor vehicle. Thus, he is entitled to rescind the contract. It is indeed true that the contract stated that: - **Mr Ahmed is the legal and sole owner of Motor vehicle KAG 040T** 8. In order to succeed for grant of order of rescission the applicant must demonstrate that he is the innocent party. In other words, demonstrate that he performed his part of the bargain. And that the other party has not performed his/ her obligations under the contract. 9. The Plaintiff herein is not an innocent party, the evidence on record shows that he had not taken steps to transfer the subject property to the Defendant. He is thus not entitled to rescission since he is equally in breach. 10. In **Erlanger –vs- New Sombrero Phosphate Co. Ltd (1878) 3 App CAS 1218,** It was held that rescission is not available where substantial restitution cannot be achieved. 11. In the present matter the contract was entered into in year **2014** and we are now in year **2026**- over a decade later. I further note that the motor vehicle year of manufacture, per NTSA records, is the year **1995**. 12. I appreciate, as submitted by the defendant that the subject motor vehicle must have undergone substantial tear and wear by passage of time. It will thus be impossible to restitute the defendant to his original position- more particularly noting that land on other hand is an appreciating asset. Thus, to me, an order for restitution would in effect amount to unjust enrichment to the plaintiff. 13. I now turn to consider whether an order of specific performance is available herein. This is an equitable discretionary remedy. it can be declined on the ground where it is established that it will cause severe hardship or where the act of performance is wholly out of proportion to the benefit to the parties; see**- Amina Abulkadir Itawa –vs- Rabinder Nath Anand & another (2012) eKLR** 14. In the present matter the plaintiff when cross-examined by **Mr.** **Kariuki** was categorical that: *“I seek for log book for KAG 040T. I have possession of motor vehicle since time of agreement the 7/7/2014. I exchanged land for motor vehicle. The defendant is in use of land from 7/7/2014. I gave possession of the land…”* 1. In re-examination he maintained; - “*The title deed is in my name. the log book is in the name of German Department Service Kenya. It is not in the name of the Defendant. I am ready to transfer the land to the Defendant and get my motor vehicle in my name*” 1. The Defendant in cross-examination stated: - *“I can cause the motor vehicle to be transferred in the Plaintiffs name. I could not do so unless the court directs so. But I will cause the transfer into Plaintiff’s name. I will look for the person who sold the motor vehicle to me and effect the transfer to the Plaintiff.* 1. From the above excerpts of evidence, it is clear to me that neither of the parties has ever treated this contract as incapable of being performed. I see willingness of both parties to finalize the contractual journey. They had started. I am thus persuaded to grant an order of specific performance herein as it the most efficacious and equitable in the circumstances herein. **Disposition** 1. Flowing from the above analysis, I find and hold that the Plaintiff has not succeeded in proving that the undated agreement between between himself and the Defendant is null and void. 2. Since all the other prayers in the Plaint were consequent upon nullification of the said agreement, which I have declined, then all the other prayers cannot issue. The Plaintiff’s claim therefore fails. 3. The defendant has succeeded in demonstrating that he is entitled to an order of specific performance. The counter- claim is thus successful. 4. The court makes the following final orders; - 5. *A declaration be and is hereby issued that the undated agreement of year 2014 between the Plaintiff and the Defendant is valid and binding between the parties.* 6. *An Order of specific performance be and is hereby issued and directed as follows: -* 7. *That the Plaintiff to transfer a portion measuring* ***30\*33*** *metres from land parcel* ***NO. MUTOMO/KAWELU/1665*** *to the Defendant with the Plaintiff meeting the costs of the transfer*. 8. *That the Defendant to effect/cause transfer of motor vehicle Reg.* ***NO.KAG 040T*** *and have the same registered in the name of the Plaintiff, -the costs of transfer and any other attendant costs to be borne by the Defendant.* 9. *The Defendant shall have costs and interests of the suit as well as the Counter claim.* Judgement delivered virtually on **12/08/2026;** in the presence of; 1. **Mr. Kariuki** for the Defendant 2. N/a for the Plaintiff 3. **Daniel**- Court Assistant. **Hon. L. K. Mwendwa** **Senior Principal Magistrate**