https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5321

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MERU** **ELC LAND APPEAL CASE NO. E024 OF 2024** **SILAS MWIRIGI MUUNA.......................................... APPELLANT** **=VERSUS=** **FAITH KARWIRWA STANLEY................................RESPONDENT** ***(An Appeal against the Judgment of the Senior Principal Magistrate Court at Meru [Hon T. M. Mwangi - SPM] dated 29/2/2024 in Meru CMC E & L Case No. E051 of 2021)*** **JUDGMENT** **Introduction** 1. This appeal challenges the Judgment of the Senior Principal Magistrate Court at Meru [Hon T. M Mwangi – SPM] rendered on 29/2/2024 in **Meru CMC E & L Case No. E051 of 2021**. The key issues that arose for determination in the suit were: (i) Whether the appellant made out a case for an order of specific performance of the sale agreement dated 20/1/2020 in relation to land parcel number **Nkuene/Ukuu/1515**, a subdivision out of land parcel number **Nkuene/Ukuu/358**; and (ii) Whether the appellant made out a case for the alternative relief of the sum of Kshs 6,991,100 being the loss he alleged to have incurred as a result of non-completion of the said sale agreement. Taking into account the grounds of appeal and the fact that this is a first appeal, the court will, invariably, be expected to determine the two issues. Before I do that, I will outline the background to the appeal; the grounds of appeal; and the parties’ submissions in the appeal. **Background** 1. Parties to this appeal entered into a land sale agreement dated 20/1/2020 through which they agreed that the respondent would sale as a beneficial owner and the appellant would purchase a parcel of land measuring 1/7 acres to be parceled out of what was described in the agreement as ***land parcel number Nkuene/Ukuu/538 measuring 3 acres registered in the name of the respondent’s deceased grandfather, M’Ramare M’Kainyiru***. The agreed purchase price for the 1/7 acre portion was Kshs. 600,000. A sum of Kshs. 130,000 was to be paid at the time of signing the agreement. Indeed, the respondent acknowledged receiving the said sum of Kshs 130,000 at the time of appending her signature to the sale agreement. The parties further agreed that the appellant was to pay to the respondent a further sum of Kshs 270,000 in or before the end of May 2020. Lastly, it was agreed that the balance [Kshs 200,000] was to be paid upon transfer of the 1/7 acre portion into the name of the appellant. 2. In addition, the agreement provided that parties were to share expenses relating to obtention of consent of the Land Control Board; the appellant was to solely bear the costs relating to transfer of the sold parcel; parties were to share the fees payable to their common advocate who prepared the sale agreement and attested to it; and the appellant was to be granted the 1/7 acre portion immediately on execution of the sale agreement. Lastly, the agreement provided that in the event of breach by either party, the agreed liquidated damages [penalty] payable to the aggrieved party would be Kshs 1,200,000. 3. It emerged from the evidence tendered by the appellant during trial that at the time of entering into the above agreement, he was aware that his son, Kelvin Muthomi, occupied the 1/7 acre portion as a lessee of the respondent and had built a chicken house on the said 1/7 acre portion. 4. The appellant did not pay the second instalment of Kshs. 270,000 in or before the end of May 2020 as agreed. Vide a notice dated 17/9/2020, the respondent, through ***M/s Gichunge Muthuri & Company Advocates***, issued a 14 days notice demanding immediate remittance of Kshs 270,000 together with interest at 14% from 1/6/2020 [Kshs 12,600] and legal costs of Kshs. 10,000 relating to the demand notice. The respondent stated in the said notice that, in default of compliance, it would be construed that the appellant was unable to honour and complete the sale agreement and the respondent would *“call off the agreement and proceed to deal with the land as she wished”*. The appellant did not pay the sum of Kshs 270,000 within the 14 days. He did not pay the interest of Kshs 12,600 and the legal costs of Kshs 10,000 within the 14 days. 5. In her evidence during trial, the respondent testified that she subsequently refunded to the appellant the deposit of Kshs 130,000 on 5/1/2021. On his part, the appellant contended that he procured a banker’s cheque dated 28/10/2020 for Kshs 270,000 and gave it to the Area Chief to pass to the respondent but the respondent declined to accept it. 6. Against the above background, the appellant filed Meru CMC E & L Case No E051 of 2021 vide a plaint dated 16/4/2021. The plaint was subsequently amended. He sought: (i) a declaration that he was the legal owner and proprietor of land parcel number Nkuene/Ukuu/1515 [*the 1/7 acre portion that was the subject matter of the sale agreement*]; and (ii) an order of specific performance relating to the sale agreement dated 20/1/2020. As an alternative relief, the appellant sought an order decreeing the respondent to pay him Kshs 6,991,100 being the “loss incurred”. Lastly, the appellant sought costs of the suit. 7. The appellant pleaded that upon signing the agreement, he took possession of the land, developed poultry houses on it and commenced chicken rearing business on the land. He added that when he obtained an official search subsequent to the signing of the agreement, it emerged that the 1/7 acre portion sold to him fell within parcel number **358** which belonged to the respondent’s late grandfather, yet the sale agreement which they executed bore the parcel number of the suit land as **538**. He pleaded fraud by the respondent on account of the above discrepancy. He added that the 1/7 acre portion which had been sold to him had subsequently been surveyed out of parcel number 358 and had been registered as parcel number **Nkuene/Ukuu/1515**. He contended that his efforts to continue making payment of purchase price had been frustrated by the respondent’s refusal to receive the sum of Kshs 270,000. 8. The appellant added that he had immensely developed the suit land and assessed his loss at Kshs 6,991,100. He pleaded with the court to grant him the above reliefs. 9. The respondent contested the claim through an amended defence dated 1/12/2022. She denied fraud. She averred that the capture of **parcel** **number 538** in the sale agreement instead of **parcel number 358** was purely an inadvertent typographical error on part of the advocate who typed the agreement, adding that, throughout the transaction, the parties knew that the subject matter of the sale agreement was the respondent’s 1/7 acre entitlement out of her late grandfather’s land, parcel number 358. She denied the allegation that the appellant had developed the suit land. 10. The respondent contended that she repudiated the sale agreement and subsequently refunded to the appellant the deposit of Kshs 130,000 after the appellant failed to honour the payment terms of the sale agreement. She urged the court to reject the appellant’s claim. 11. Upon conducting trial and receiving submissions from the parties, the trial court rendered the impugned Judgment in which it found that: (i) there was no fraud by the respondent; (ii) the sale agreement dated 20/1/2020 was repudiated or frustrated; and (iii) the agreement dated 20/1/2020 was void because it offended **Section 45(1)** of the **Law of Succession Act**. **Appeal** 1. Aggrieved by the Judgment and decree of the trial court, the appellant brought this appeal, advancing the following grounds: 2. ***That the Learned Trial Magistrate erred in both law and fact by holding that the agreement on 20th January 2020 was null and void on the ground of intermeddling yet:*** 1. ***the issue of intermeddling was not pleaded by any of the parties.*** 2. ***the agreement was properly executed.*** 3. ***there was no iota of evidence that there was intermeddling.*** 4. ***the parties were in agreement that they entered into a valid contract*** 5. ***there was no evidence on the position of the Succession matter.*** 3. ***That the Learned Trial Magistrate erred in both law and fact by:*** ***(a) finding that the letter dated 17/9/2020 that demanded for part-payment was notice for termination yet the said letter did not fall within the ambit of Section 4(7) of the Law Society Conditions of Sale (1989 Edition).*** ***(b) failing to appreciate that the absence of issuing a termination/rescission notice in the manner prescribed meant that the contract remained in force.*** ***(c) failing to consider that the said letter dated 17/9/2020 was a nullity and of no legal consequence to the agreement between the parties.*** 1. ***That the Learned Trial Magistrate erred in both law and fact by:*** ***(a) failing to consider that the material contract did not express time to be of essence and neither was there an agreement by the parties that failure to pay the Kshs. 270,000/- by May 2020 would terminate the contract.*** ***(b) finding that indeed there was no completion date in the said agreement but proceeded to find that the contract was repudiated by failure to pay part of the purchase price.*** ***(c) failing to appreciate the concept and importance of time being of the essence and completion date being expressly written on the agreement.*** ***(d) holding that the refund of the part payment being Kshs 130,000 signified an implied repudiation of the agreement and failed to appreciate that there has to be an express agreement on time being of the essence.*** 1. ***That the Learned Trial Magistrate erred in law by:-*** ***(a) finding that the rejection of the part payment by the respondent amounted to repudiation and failed to appreciate that refusal to accept the balance of the purchase price did not amount to termination of the contract.*** ***(b) failing to consider that failure to pay the balance of the purchase price by the time indicated does not terminate an agreement.*** 1. ***That the Learned Trial Magistrate erred in law and fact by:-*** ***(a) failing to consider that the respondent has never executed the transfer and it was not open for her to terminate the contract on the ground that payment of the balance of the purchase price was not made.*** ***(b) failing to consider that the appellant demonstrated his willingness to perform the terms of contract.*** 1. ***That the Learned Trial Magistrate erred in law by failing to consider the principle of acquiescence and the principle of promissory estoppel that were clearly demonstrated and proved in evidence during trial.*** 2. ***That the Learned Trial Magistrate erred in law by failing to determine quantum despite dismissal, yet the appellant sought for compensation as an alternative in his claim.*** 3. ***That the Learned Trial Magistrate in both fact and law by disregarding the plaintiff’s evidence that the respondent was intentionally defrauding him by selling land parcel known as Nkuene/Ukuu/538 instead of Nkuene/Ukuu/358.*** 4. ***That the Learned Trial Magistrate erred in both the fact and law by disregarding the appellants’ pleadings, evidence and submissions.*** 5. The appellant urged this court to set aside the Judgement of the trial court and issue an order allowing the appellant’s suit with costs. In addition, the appellant prayed for costs of the appeal. **Appellant’s Submissions** 1. The appeal was canvassed through written submissions dated 10/4/2026, filed by ***M/s Thuranira Atheru & Co Advocates***. Counsel for the appellant identified the following as the two issues that fell for determination in the appeal: (i) Whether the appellant discharged the burden of proof; and (ii) Whether the rescission of the contract by the respondent was procedural and/or legal. 2. On whether the appellant discharged his burden of proof, counsel submitted that the appellant pleaded and proved fraud on part of the respondent. Counsel argued that the appellant purported to sell to the appellant parcel number 538 and proceed to receive payment while knowing very well that her beneficial interest was in parcel number 358. 3. On whether the rescission of the contract by the respondent was procedural and/or legal, counsel submitted that the sale agreement did not provide for termination in the event of default by either party, hence the parties were to be guided by **Clause 4 (7)** of the **Law Society of Kenya Conditions of Sale** (*sic*) which required the respondent to serve on the appellant a 21 days notice to complete the contract. Counsel argued that the 14 days notice contained in the letter dated 17/9/2020 did not meet the threshold of 21 days, adding that, in any event, there was no evidence of service of the said notice. Counsel urged the court to allow the appeal . **Respondent’s Submissions** 1. The respondent opposed the appeal through written submissions dated 5/5/2026, filed by ***M/s Basilio Gitonga, Murithi & Associates Advocates***. Notwithstanding the fact that the appellant did not submit on some of the grounds that had been itemized in the memorandum of appeal, counsel for the appellant elected to submit on all the grounds. 2. On the contention that the trial court erred by holding that the agreement dated 20/1/2020 was null and void on the ground of intermeddling, counsel submitted that the appellant stated in his evidence that he approached the respondent with a view to purchasing a piece of land which was part of the estate of the respondent’s grandfather, **M’Ramare M’Kainyiru**. Counsel argued that in making its finding, the trial court was guided by **Sections 45** and **82** of the **Law of Succession Act** which outlawed intermeddling. 3. Counsel turned to ground numbers 2 and 3 and submitted that the issues raised in the two grounds were repetitive. Counsel observed that the sale agreement had timelines within which the purchase price was to be paid, adding that when the appellant failed to honour the timelines, the respondent issued and served a notice. Counsel argued that the decision to rescind the contract was made 7 months after the appellant failed to pay the agreed purchase price, adding that there was no evidence proving that a sum of Kshs 270,000 was offered on or after 28/10/2020. Counsel submitted that even if the sum of Kshs 270,000 had been offered on or after 28/10/2020, the offer came after expiry of the 14 days rescission notice had taken effect. 4. On the contention that the trial court erred in finding that the respondent’s rejection of the part-payment amounted to repudiation and in failing to consider that failure to pay the balance of the purchase price within the time stipulated in the sale agreement did not terminate the agreement, counsel argued that the respondent testified that the purpose for which she wanted to sell the suit land was to purchase another parcel of land and because she lost the property she wanted to purchase due to the appellant’s breach, she rescinded the agreement dated 20/1/2020 and refunded the appellant his deposit of Kshs 130,000. 5. On the argument that the trial court erred in failing to consider the fact that the respondent never executed a transfer and that the appellant had demonstrated his willingness to perform the terms of the contract, counsel for the respondent submitted that a transfer could not be executed in the absence of the second instalment (Kshs 270,000). Counsel added that the cheque dated 28/10/2020 was never presented to the appellant and even if it had been present, it would have been long after the rescission had taken effect. 6. On the contention that the trial court erred in failing to consider the principle of acquiescence and the principle of promissory estoppel, counsel submitted that parties lacked the capacity to contract because the suit land belonged to a deceased person and the respondent was not the personal representative of the deceased. Counsel added that the above doctrines could not be invoked to circumvent the express provisions of the law or to validate illegal/unlawful actions. 7. On the contention that the trial court erred in failing to determine quantum upon rejecting the appellant’s claim, counsel submitted that the trial court pronounced itself on the appellant’s liquidated claim of Kshs 6,991,100. 8. On the contention that the trial court erred in disregarding the appellant’s evidence that the respondent was intentionally defrauding him, counsel submitted that the issue of fraud was addressed by the trial court. 9. Lastly, on the contention that the trial court disregarded the appellant’s pleadings, evidence and submissions, counsel termed the allegation as untruthful and submitted that the Judgment of the trial court contained an analysis and evaluation of the pleadings and the evidence of the appellant. Counsel urged the court to dismiss the appeal with costs. **Analysis and Determination** 1. The court has read and considered the entire original record of the trial court; the record filed in this appeal; the grounds of appeal; and the parties’ submissions. The appellant itemized nine grounds of appeal. Some of the grounds of appeal were repetitive. In his submissions dated 10/4/2026, the appellant identified the following as the two issues that fell for determination in the appeal: (i) Whether the appellant discharged the burden of proof; and (ii) Whether the rescission of the contract by the respondent was procedural and/or legal. The above two issues will be analyzed and disposed within the broader questions as to: (i) Whether the appellant made out a case for the order of specific performance which he sought in the suit; and (ii) Whether the appellant made out a case for the alternative relief of an award of Kshs 6,991,100 which he alleged to be the loss he incurred as a result of the non-completion of the agreement. The two issues are intertwined and will therefore be analyzed and disposed contemporaneously. Before I analyze and dispose the issues, I will briefly outline the principle that guides this court when exercising appellate jurisdiction. 1. The task of a first appellate court was summarized by the Court of Appeal in the case of ***Susan Munyi v Keshar Shiani (2013) eKLR*** as follows: ***“As a first appellate court our duty of course is to approach the whole of the evidence on record from a fresh perspective and with an open mind. We are to analyze, evaluate, assess, weigh, interrogate and scrutinize all of the evidence and arrive at our own independent conclusions.”*** 1. The principle was similarly outlined in ***Abok James Odera t/a A J Odera & Associates v John Patrick Machira t/a Machira & Co Advocates [2013] eKLR*** as follows: ***“This being a first appeal, we are reminded of our primary role as a first appellate court, namely, to re-evaluate, re-assess and re-analyze the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reason either way.”*** 1. Did the appellant make a case for the order of specific performance? Did he make a case for the alternative relief? An order of specific performance is an equitable relief. The principles upon which the relief is granted are well-settled. In ***Reliable Electrical Engineers (K) Ltd v Mantrac Limited [2006] eKLR Maraga J (as he was then)*** summed up the relevant principles as follows: ***“Specific performance like any other equitable remedy is discretionary and the court will only grant it on well laid principles. 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 and enforceable. Even when a contract is valid and enforceable, specific performance will however not be ordered where there is an adequate alternative remedy."*** 1. In their book ***THE LAW OF REAL PROPERTY, Seventh Edition, The Rt Hon Sir Roberty Megarry and Sir William Wade*** set out the following principles that govern the exercise of jurisdiction to grant the equitable remedy of specific performance in land disputes: ***"This remedy is purely equitable, and in principle is confined to cases where the common law remedy of damages is inadequate. But land is always treated as being of unique value, so that the remedy of specific performance is available to the purchaser as a matter of course; and even though the vendor is merely concerned to obtain the purchase-money, so that he could be adequately compensated in damages for the purchaser's refusal to complete, the remedy of specific performance is equally available to him"*** 1. The two authors add as follows: ***"Like other equitable remedies, specific performance is discretionary. However, the court's discretion is governed by settled principles. Examples of where the remedy may be refused include the following: in proper cases where there is mistake or great hardship, even though these do not invalidate the contract at law. (ii) where there has been delay causing injustice to the other party (iii) whether the vendor would be required to embark upon difficult or uncertain litigation in order to secure any requisite consent or obtain vacant possession (iv) where the property is being used for illegal purposes, which would make the purchaser liable to prosecution, even though on this ground he has no right to terminate the contract, or (v) where the vendor's title is doubtful but he has failed to disclose the known cause of that doubt and the purchaser has agreed to accept any defects that there may be in these cases the contract will remain binding at law, so that the party in default will be liable in damages, but equity will not assist with a decree of specific performance. On the other hand, specific performance may be decreed before the legal time for performance has arrived if there has been an anticipatory breach, e.g. by repudiation"*** 1. The contract in respect of which the appellant sought an order of specific performance required the appellant to pay purchase price in three instalments of Kshs 130,000; Kshs 270,000; and Kshs 200,000. The timelines within which the payments were to be made were set out in Clause 3 of the agreement. The first instalment was to be paid on signing the sale agreement. The second instalment was to be paid “on or before the end of May 2020”. 2. Come end of May 2020, the appellant had not paid the sum of Kshs 270,000. Indeed, the appellant admitted the above breach during his testimony in cross-examination. After waiting for more than 4½ months, the respondent issued a notice dated 17/9/2020, requiring the appellant to remit the sum of Kshs 270,000 together with interest [Kshs 12,600] and the attendant legal costs [Kshs 10,000] within 14 days. The respondent made it clear that in the event of default, it would be construed that the appellant was incapable of honouring and completing the agreement and the respond would call the agreement off and proceed to deal with the land as she wished. The appellant did not pay the sum of Kshs 270,000. He did not pay the interest and the costs. At the time of filing the suit in the trial court, the appellant filed an application seeking an interlocutory order and exhibited the notice dated 17/9/2020 as exhibit No “***SMM2***”. This confirmed that he received and had the said notice in his possession. 3. The appellant having breached the sale agreement by failing to honour the agreed schedule of paying the purchase price and by ignoring the respondent’s notice, the agreement stood rescinded on expiry of the 14 days. Indeed, the respondent proceeded to refund the appellant his deposit of Kshs 130,000 on 5/1/2021 through *Mpesa*. The appellant received the refunded sum and kept quiet. More than four (4) months later, the appellant went to the trial court seeking an order of specific performance. Clearly, the appellant having breached the sale agreement which required him to pay the second instalment of the purchase price at the end of May 2020; and him having received back and pocketed the only money he paid as purchase price, he had no legitimate basis for purporting to be the legitimate owner of the suit land. He had no legitimate basis for seeking the equitable remedy of specific performance. He was a defaulter who had been refunded and had received his deposit back. The remedy of specific performance was not available to him. 4. In his submissions before this court, the appellant relied on **Clause 4(7)** of an unspecified edition of the **Law Society of Kenya Conditions of Sale**. The court has examined the material sale agreement. The agreement did not incorporate any edition of the Law Society of Kenya Conditions of Sale. The appellant has no basis for relying on terms of an unspecified edition of the Law Society of Kenya Conditions of Sale because no such terms were incorporated in the two parties’ contract. 5. The court has also considered the contention that the appellant proved fraud on part of the respondent. The respondent was candid from the word go and explained that the capture of the mother parcel number as **538** instead of **358** was purely an inadvertent typographical error on the part of the parties’ common lawyer who drew the sale agreement. On the face of the agreement, the parties shared a common attesting lawyer. The two parties bore the shared responsibility of proof-reading the sale agreement in draft. The appellant bore the additional responsibility of carrying out due diligence. 6. On the basis of the evidence on record, there is nothing to suggest that the respondent intended to defraud the appellant. She pointed to the appellant the correct portion which she was entitled to as a beneficial owner. She disclosed the capacity in which she was selling to the appellant her beneficial interest. When the appellant failed to honour the agreed schedule on payment of purchase price, she made a refund of the sum of Kshs 130,000 which the appellant had paid to her. She did so voluntarily. That is not the conduct of a fraudulent vendor. If the appellant was serious about the allegation of fraud, one of the key witnesses whom he would have called was the parties’ common lawyer; the lawyer who drew the sale agreement. He did not call the lawyer. 7. For the above reasons, the court comes to the finding that the appellant did not satisfy the criteria for granting the equitable remedy of specific performance. 8. Did the appellant prove a case for an award of Kshs 6,991,100 being loss that he had allegedly incurred as a result of the respondent’s rescission of the sale agreement? The rescission was occasioned by the appellant’s breach of the sale agreement. For this reason, the appellant was not entitled to any damages from the respondent. Had the appellant proved breach, the only relief available to him would have been the sum of Kshs 1,200,000/=. This is what the parties mutually agreed under Clause 8 as the liquidated damages [relief] payable by the party in breach. This limb of the claim was not proved. ­­ **Findings and Disposal Orders** 1. For the above reasons, the finding of the court on the first issue is that the appellant did not prove his claim for an order of specific performance. The finding of the court on the second issue is that the appellant did not prove the claim for the alternative relief of an award of Kshs 6,991,100 being the alleged loss incurred by him. Consequently, this appeal fails and is dismissed for lack of merit. 2. On costs, the general principle in **Section 27** of the **Civil Procedure Act** is that costs follow the event. There are no proper grounds to warrant a departure from the general principle. Consequently, the appellant shall bear costs of the appeal. **DATED, SIGNED AND DELIVERED AT MERU THIS 17TH DAY** **OF AUGUST, 2026** **B M EBOSO [MR]** **ELC JUDGE**