1. In a plaint dated 9 March 2018, the plaintiff took legal action against the defendant for breach of contract. The plaintiff explained that, as the purchaser, they entered into an agreement for sale on 25 March 2016 with the defendant, the vendor, covering 129 plots of land originally from Mavoko Town Block II/3705. Each plot was being sold for Kshs. 1, 375,000/-
2. Later, the parties reached an addendum agreement, extending the original completion date of 120 days to 15 January 2017. The number of plots to be purchased was also reduced to 121. However, on this new completion date, the defendant defaulted. This led to negotiations for a further extension of the completion period so the defendant could fulfil the terms of the agreements. Instead of finalising such an extension by an agreement, the defendant issued a 21-day notice to terminate the contract on 7 March 2017, the very same day it deposited Kshs. 137,275,000/- with her.
3. It alleged that this notice contravened the terms of the agreement, as a notice to terminate was issued, not a completion notice. Nonetheless, it subsequently made a further payment of Kshs. 87,000,000/- on 27 March 2017, before the notice could take effect, bringing the alleged total amount paid to the defendant to Kshs. 166, 375,000/-, equivalent to 121 plots.
4. It contends that all consents to transfer these 121 plots were obtained from the Land Control Board (LCB) on 7 December 2016. 61 of them have been transferred to it by the defendant, leaving a balance of 60 plots that the defendant has declined to transfer, to wit, Mavoko Town Blocks 2/4072, 4073, 4074, 4075, 4090, 4091, 4094, 4095, 4096, 4097, 4098, 4099, 4100, 4101, 4102, 4117, 4126, 4127, 4128, 4129, 4130, 4131, 4132, 4133, 4134, 4135, 4136, 4137, 4138, 4141, 4142, 4143, 4144, 4145, 4146, 4147, 4148, 4149, 4154, 4160, 4164, 4165, 4166, 4167, 4168, 4169, 4170, 4227, 4171, 4175, 4178, 4179, 4180, 4181, 4227, 4228, 4229, 4230, 4231, 4232, 4233, 4234, 4285, 4286 and 4287 (suit properties). Notably, these parcels number 64, not 60.
5. In particular, it pleaded breach of contract by the defendant for failing to deliver completion documents for the suit properties within the completion period, failing to deliver unencumbered land, issuing a defective termination notice, and attempting irregularly to rescind the agreement. In consequence, it sought the following reliefs: -
a. An order for specific performance compelling the defendant to hand over to the plaintiff all completion documents as are now or would be necessary to transfer the suit properties into the plaintiff’s name and/or into the names of the plaintiff’s nominee, and to execute all necessary documents for the transfer of the said 60 plots.
b. In the alternative, an order authorising and requiring the deputy registrar of the court to execute all necessary completion documents as are or would be necessary to transfer the suit properties into the plaintiff’s name and/or into the names of the plaintiff’s nominees, and to execute all necessary documents for the transfer of the suit properties.
c. An order directing the land control board at Athi River to issue consents for the transfer of the suit properties.
d. An order to give vacant and unencumbered title and possession in accordance with the terms of the agreement.
e. Spent.
f. Spent.
g. Spent.
h. Spent.
i. Damages for breach of contract and loss of gain.
j. All necessary consequential accounts, directions and injuries.
k. Costs of the suit.
l. Interest on costs and damages at court rates from the date of ascertainment until the date of payment in full.
6. On service, the defendant filed a defence and counterclaim dated 23 May 2018, in which she made several assertions. She also denied some of the plaintiff’s averments and put it to strict proof. She admitted the existence of the agreement for sale dated 25 March 2016 and of the addendum dated 5 October 2016. She also admitted that, in the latter, the number of plots sold to the plaintiff was reduced from 129 to 121, excluding others.
7. The completion period was extended to 15 January 2017, with the revised balance of the purchase price reduced. She contended that the plaintiff had repeatedly breached the contract by failing to pay the purchase price when it fell due and paid it out of time by a period of 5 to 142 days.
8. As at 15 January 2017, the plaintiff was in breach for not paying the revised purchase price for 61 plots, culminating in the issuance of a completion notice dated 7 March 2017 for 61 plots. Eventually, the plaintiff remitted Kshs. 82,500,000/- to her on 28 March 2017 without interest. She informed the court that the plaintiff took possession on 25 March 2016.
9. In the counterclaim, she particularised breach of contract against the plaintiff for failing to pay the purchase price or the revisal thereof as stipulated in the agreement for sale and addendum and the interest thereon. Reasons wherefore, she sought the following reliefs;
a. A declaration that the defendant was entitled to rescind the agreement for sale between the parties lawfully.
b. An order of mesne profits from 25 March 2016 until the date of judgment.
c. An order for payment of interest for delayed payments of the purchase price as provided for in the agreement for sale and the Law Society Conditions of Sale.
d. Interest on (b) and (c) above at court rates from the date of judgment until payment in full.
e. Such other or further consequential orders as the court may deem fit and just to grant.
f. Costs of the suit.
10. Significantly, as a preliminary issue, the defendant did not testify, and her pleadings remained mere statements of fact that were unsubstantiated. Therefore, having considered the pleadings, the plaintiff’s evidence presented during the hearing on the merits and the issues as outlined in the plaintiff’s list of issues dated 4 July 2019, the following issues for determination arise: -
a) Were the terms of the agreement and addendum breached by the defendant?
b) Whether the plaintiff is entitled to the reliefs sought.
11. Having identified the issues to be decided, this court will now summarise the plaintiff’s evidence related to these issues as framed.
12. Hearing in this matter commenced on 24 February 2026, when only Thomas Dales Gitumbi, a director of the plaintiff, testified as PW1. He relied on his witness statements and oral testimony and produced documents marked Pex. 1-24. He largely reiterated the statements in the plaint, and this court will not dwell on reiterating them, as they were summarised earlier in the judgment.
13. He produced an undated agreement for sale as Pex. 1, which was executed by both parties. The agreement did not disclose when the plaintiff executed it, but the defendant executed it on 25 March 2016. The agreement pertained to the sale of 129 plots, including the suit properties, at the price of Kshs. 1,375,000/- per plot, all totalling Kshs. 177, 375,000/-
14. He also presented an addendum agreement dated 25 March 2016 (Pex. 6), under which the parties agreed to extend the completion period to 15 January 2017. The number of plots under the contract was reduced to 121, with a total purchase price of Kshs. 166,375,000/-. The agreement confirmed that a deposit of Kshs. 45,475,000/- had been paid, leaving a balance of Kshs. 120,900,000/- due by 15 January 2017.
15. He also produced correspondence between the law firms representing the parties to the transaction, some of which was on a “without prejudice” basis. Of interest is a letter dated 20 April 2016 (Pex. 3) forwarding the title deeds of 25 plots, including 10 plots that form part of the suit properties. These title deeds were returned to the defendant’s advocates by a letter dated 5 July 2016 (Pex. 5) for the purpose of registering a power of attorney in the name of Monica Muoki.
16. Consent to transfer Mavoko Town Blocks 2/4228 and 120 others, as per a certain list (Pex.8), was obtained from the Athi River Land Control Board (LCB) on 7 December 2016. In a letter dated 10 February 2017 (Pex.9), the plaintiff demanded title deeds and completion documents for 55 plots, which it stated were fully paid for. On 15 February 2017, the defendant informed him that two title deeds were misplaced and were the subject of a gazettement, but remitted title deeds for 53 parcels (Pex.10). Further, in a letter dated 28 February 2017, the defendant acknowledged receipt of a total of Kshs 86, 475,000/-, equivalent to 62.89 plots, as there was a balance of Kshs 151,250/- on one of the plots (Pex. 11).
17. In a letter dated 7 March 2017 (Pex. 13), the defendant issued a 21-day notice to terminate the contract in respect of 60 plots for failure to pay the balance of the purchase price as at 28 February 2017. The plaintiff responded in a letter dated (Pex. 12), claiming, amongst other things, instances of the defendant's breach, that termination of the contract could not precede a completion notice, and that the amounts already paid towards the purchase price were Kshs. 141, 775,000/-.
18. In a letter dated 10 March 2017 (Pex. 17), the defendant stated that it had issued refunds for payments in excess of 61 plots and instructed the plaintiff to prepare the transfer forms for those 61 plots. It appears that a refund of Kshs. 57 900,000/- was made to the plaintiff, as shown in a letter dated 14 March 2017 (Pex. 16). In Pex. 16, the plaintiff inquired whether it could make a further payment of Kshs. 62,000,000/-, leaving a balance of Kshs. 21,500,000/-, which would be paid upon the defendant fulfilling the terms of the contract and addendum.
19. As evidenced by a letter dated 28 March 2017 (Pex. 18) and its annexures, the plaintiff paid the defendant via RTGS on 27 March 2017, Kshs. 82,500,000/-, claiming this was the balance of the purchase price for the 121 plots. Further correspondence, which was on a without prejudice basis between the parties, reveals that the documents not released to the plaintiff relate as seen in Pex. 20, 21, and 22.
20. Upon conclusion of the hearing, the parties informed the court that they would file their written submissions within the stipulated timelines, which they subsequently failed to do. The court granted an extension of time for compliance; however, as of the date of penning this judgment, none have complied. Should they attempt to do so, the submissions will be deemed filed out of time and shall be automatically expunged without further reference to the court. We now proceed to address the issues for determination together.
21. Notwithstanding that the defendant did not testify, the evidential burden rested with the plaintiff, as the person alleging, to prove its claim, as provided by Sections 107 and 109 of the Evidence Act.
22. Now, having considered the evidence, in compliance with Section 3 (3) of the Law of Contract Act, the parties in an undated initial contract agreed to the disposal of 129 plots of land, with certain clauses being revised by an addendum agreement dated 25 March 2016. The parties were represented by counsel throughout the transaction.
23. Respecting prevailing jurisprudence, the parole evidence rule forbids the introduction of extrinsic evidence to modify the terms of a written contract between parties. This court aligns itself with the decision of Fidelity Commercial Bank Limited v Kenya Grange Vehicle Industries Limited [2017] eKLRCivil Appeal 61 of 2013, which stated: -
“So that where the intention of parties has in fact been reduced to writing, under the so called parol evidence rule, it is generally not permissible to adduce extrinsic evidence, whether oral or written, either to show the intention, or to contradict, vary or add to the terms of the document, including implied terms. Courts adopt the objective theory of contract interpretation, and profess to have the overriding aim of giving effect to the expressed intentions of the parties when construing a contract. This is what sometimes is called the principle of four corners of an instrument, which insists that a document's document meaning should be derived from the document itself, without reference to anything outside of the party (extrinsic evidence), such as the circumstances surrounding its writing or the history of the party or parties signing it.”
24. Concerning the conduct of parties to an agreement, this court adopts the dicta in Eldo City Limited v Corn Products Kenya Ltd & another [2013] KEHC 5916 (KLR) where the court stated:-
“It is trite law that in deciding disputes, it is the court’s duty to give effect to the intention of the parties. The parties’ intention is discernible from the documents and conduct of the parties. However, onerous a document or contract may be, the court’s duty is to give effect to it. In the case of Smith –vs- Cook (1891) AC 297 at 303 the court held: -
“The duty of the court is to give the natural meaning to the language of the deed unless it involves some manifest absurdity or would be inconsistent with some other provision of the deed and would therefore be contrary to the intention of the parties as appearing upon the face of the deed.”
In the case of Rose and Frank Co. –vs- J.R Crompton and Brothers Ltd (1923) 2 KB 261, the court held that there was nothing wrong in having clauses in an agreement where parties agree not to be bound in law but subject to a contract being drawn up.”
25. Respecting damages for breach of contract and losses, the Court of Appeal in Kenya Tourist Development Corporation v Sundowner Lodge Limited [2018] KECA 312 (KLR) held as follows: -
“Beyond the non-recoverability of general damages for breach of contract, a proper consideration of the nature of the respondent’s claim ought to have led to the same conclusion that only such proven loss could be compensated by way of damages.”
26. About loss of profit, the decision in Hydro Water Well (K) Limited v Sechere & 2 others (sued in their representative capacity as the officers of Chae Kenya Society & 2 others) (sued in their representative capacity as the officers of Chae Kenya Society) [2021] KEHC 22 (KLR) held that a plaintiff must demonstrate three elements: that the plaintiff’s alleged loss was the proximate result of the breach, that the parties reasonably foresaw such damages, and that the damages are certain and not speculative.
27. Reverting to the two contracts, in the addendum, the parties reduced the number of plots subject to the contract to 121 plots without disclosing the particulars of which plots had been excluded from the initial contract. At the time of the addendum, the plaintiff had already paid Kshs. 45,475,000/- towards the purchase price, leaving a balance of Kshs. 120,900,000/-. This final balance was due by 15 January 2017.
28. It was a term of the initial contract that payment of the purchase price would be in instalments commensurate with a certain number of title deeds, as follows: upon execution of the initial sale agreement, the purchaser was to pay Kshs. 35, 475,000/-, and in exchange, the defendant was to deliver completion documents for these 25 plots. The other three subsequent instalments towards the balance were to be paid, respectively, 60, 90, and 120 days after signing the agreement.
29. The initial contract did not disclose whether these dates were to be counted from the date the plaintiff executed the agreement or otherwise. This confusion is evident from Pex. 4, a letter dated 13 April 2016 from the plaintiff to the defendant, which states as follows about paragraph 3.1 of the initial contract, as follows:
“We confirm receipt of your acknowledgement of payment of the deposit of Kshs. 35, 475,000/= as per paragraph 3.1 of the said sale agreement.
Kindly let us know how soon we expect to receive the completion documents for the first 25 plots as per the Sale Agreement, at which point we believe the sale agreement should be dated and time starts to run as per the said paragraph.”
30. It is uncertain when the plaintiff made these payments towards the first deposit, as the date on which it executed this agreement is not disclosed, and there is no record of a bank deposit or receipt. Nonetheless, the addendum reveals that the first deposit of Kshs. 35,475,000/- was paid, and a further payment of Kshs. 10,000,000/- was made on 17 October 2016. This means that, as at the time of the addendum, the plaintiff had made total payments of 45, 475,000/-.
31. Regarding payment of the balance of Kshs. 120,900,000/-, this court has only found RTGS payments totalling Kshs. 82,500,000/-. It is uncertain when the difference of Kshs. 38,400,000/- was paid. However, correspondence shows that this was paid prior to the last instalment of Kshs. 82,500,000/-. This is evident from a letter dated 7 March 2017 from the defendant (Pex. 13) demanding payment of the balance of the purchase price in the amount of Kshs. 82,500,000/-, which equates to 60 plots. This letter states:
“We have instructions from our client Bibiana Mbatha Ngotho the vendor herein, to formally give you Twenty One (21) days Notice for termination of sale of the remaining Sixty (60) plots due to your failure to pay for the same by 28th February as agreed by the parties to the Agreement.”
32. This notice clearly conflicted with the provisions of the initial contract, as clause 7.1 stipulated a requirement for a 21-day notice prior to rescission. Evidence from the conduct of both parties demonstrates that they were both in breach throughout the duration of the contract and continued to accommodate each other, as demonstrated by correspondence (those that were not “on without prejudice”) and the addendum.
33. Based on uncontroverted evidence, the plaintiff duly complied with the defective termination notice and remitted the final payment of Kshs. 82,500,000/- before expiry. However, it is apparent from the plaintiff’s letter dated 23 March 2017 that the defendant failed to deliver the completion documents for the final batch of 60 plots, despite the plaintiff's requests for completion following the plaintiff's performance of the notice.
34. Significantly, the court draws an adverse inference against the defendant, who, despite submitting a witness statement and a list of documents, failed to testify. Accordingly, this court finds that the defendant is in breach of contract for failing to furnish the completion documents for the 60 plots. It finds it unjust for the defendant to retain possession of both the land and the purchase price for the 60 plots. Finally, given that the land was sold with vacant possession, that preservatory orders were issued by this court on 27 March 2017, that the plaintiff has fulfilled the contractual obligations, that the contract is enforceable, that there is part performance by the plaintiff, who has remitted completion documents for over 61 plots, and that there is no equitable bar to its performance, this court determines that the appropriate remedy is that of specific performance, as pleaded by the plaintiff. In arriving at this, this court is guided by the Court of Appeal decision of Kitilit v Kibet [2018] KECA 573 (KLR), which held: -
“Upon the application of the equitable doctrines, the court in its discretion may award damages and where damages are an inadequate remedy grant the equitable remedy of specific performance.”
35. Regarding the disputed plots, there exists a discrepancy as the particulars listed under paragraph 15 of the plaint indicate a total of 64 plots, contrary to the claimed 60. The prayers in the plaint, particularly paragraphs (a) and (b), demonstrate that the plaintiff's interest pertains solely to the 60 plots in question. Consequently, the court will issue appropriate orders concerning these 60 plots.
36. Respecting the other reliefs for various damages, guided by Kenya Tourist Development Corporation (Supra) and Hydro Water Well (K) Limited, this court finds that the plaintiff is not entitled to these orders for reasons that it is trite law that general damages are not recoverable in cases of alleged breach of contract unless the exceptions to the general rule apply, and additionally, the plaintiff never led evidence or proved its claim of loss of opportunity and gain. As for the prayer for the obtaining of LCB consent, this court finds it to be a spent issue, as is clear from Pex.8. It also finds that the plaintiff is undeserving of other reliefs save for costs.
37. Ultimately, for the reasons and findings articulated hereinabove, this court determines that the plaintiff proved its case on the required standard of a balance of probabilities. Since it did not defend the counterclaim, it shall be entitled only to the costs of its suit. Consequently, this court grants the following dispositive orders: -
a) That within 60 days hereof, an order is hereby issued compelling the defendant to hand over to the plaintiff all completion documents that are now or would be necessary to transfer 60 out of the 64 plots of Mavoko Town Blocks 2/4072, 4073, 4074, 4075, 4090, 4091, 4094, 4095, 4096, 4097, 4098, 4099, 4100, 4101, 4102, 4117, 4126, 4127, 4128, 4129, 4130, 4131, 4132, 4133, 4134, 4135, 4136, 4137, 4138, 4141, 4142, 4143, 4144, 4145, 4146, 4147, 4148, 4149, 4154, 4160, 4164, 4165, 4166, 4167, 4168, 4169, 4170, 4227, 4171, 4175, 4178, 4179, 4180, 4181, 4227, 4228, 4229, 4230, 4231, 4232, 4233, 4234, 4285, 4286 and 4287, and to execute all necessary documents for the transfer of the said 60 plots to the plaintiff.
b. That in default of compliance with order (a) above by the defendant, the Deputy Registrar of the court is hereby directed to execute all necessary completion documents as are or would be necessary to transfer 60 out of the 64 plots of Mavoko Town Blocks 2/4072, 4073, 4074, 4075, 4090, 4091, 4094, 4095, 4096, 4097, 4098, 4099, 4100, 4101, 4102, 4117, 4126, 4127, 4128, 4129, 4130, 4131, 4132, 4133, 4134, 4135, 4136, 4137, 4138, 4141, 4142, 4143, 4144, 4145, 4146, 4147, 4148, 4149, 4154, 4160, 4164, 4165, 4166, 4167, 4168, 4169, 4170, 4227, 4171, 4175, 4178, 4179, 4180, 4181, 4227, 4228, 4229, 4230, 4231, 4232, 4233, 4234, 4285, 4286 and 4287, into the plaintiff’s name and to execute all necessary documents for the transfer the said 60 plots to the plaintiff.
c) That within 60 days hereof, the defendant is directed to deliver vacant and unencumbered title and possession of 60 out of the 64 plots of Mavoko Town Blocks 2/4072, 4073, 4074, 4075, 4090, 4091, 4094, 4095, 4096, 4097, 4098, 4099, 4100, 4101, 4102, 4117, 4126, 4127, 4128, 4129, 4130, 4131, 4132, 4133, 4134, 4135, 4136, 4137, 4138, 4141, 4142, 4143, 4144, 4145, 4146, 4147, 4148, 4149, 4154, 4160, 4164, 4165, 4166, 4167, 4168, 4169, 4170, 4227, 4171, 4175, 4178, 4179, 4180, 4181, 4227, 4228, 4229, 4230, 4231, 4232, 4233, 4234, 4285, 4286 and 4287 to the plaintiff.
d) That the defendant shall bear the plaintiff’s costs of the suit.
e) That the counterclaim is dismissed with no orders as to costs.
Judgment accordingly.
Delivered and Dated at Machakos this 22nd day of September, 2026.
HON. A. Y. KOROSS
JUDGE
22.09.2026
Judgment delivered virtually through Microsoft Teams Video Conferencing Platform;
In the presence of;
Ms. Kanja Court Assistant.
Miss Mbugua holding brief for Mr. Kago for the defendants.
No appearance for other parties.
2. Later, the parties reached an addendum agreement, extending the original completion date of 120 days to 15 January 2017. The number of plots to be purchased was also reduced to 121. However, on this new completion date, the defendant defaulted. This led to negotiations for a further extension of the completion period so the defendant could fulfil the terms of the agreements. Instead of finalising such an extension by an agreement, the defendant issued a 21-day notice to terminate the contract on 7 March 2017, the very same day it deposited Kshs. 137,275,000/- with her.
3. It alleged that this notice contravened the terms of the agreement, as a notice to terminate was issued, not a completion notice. Nonetheless, it subsequently made a further payment of Kshs. 87,000,000/- on 27 March 2017, before the notice could take effect, bringing the alleged total amount paid to the defendant to Kshs. 166, 375,000/-, equivalent to 121 plots.
4. It contends that all consents to transfer these 121 plots were obtained from the Land Control Board (LCB) on 7 December 2016. 61 of them have been transferred to it by the defendant, leaving a balance of 60 plots that the defendant has declined to transfer, to wit, Mavoko Town Blocks 2/4072, 4073, 4074, 4075, 4090, 4091, 4094, 4095, 4096, 4097, 4098, 4099, 4100, 4101, 4102, 4117, 4126, 4127, 4128, 4129, 4130, 4131, 4132, 4133, 4134, 4135, 4136, 4137, 4138, 4141, 4142, 4143, 4144, 4145, 4146, 4147, 4148, 4149, 4154, 4160, 4164, 4165, 4166, 4167, 4168, 4169, 4170, 4227, 4171, 4175, 4178, 4179, 4180, 4181, 4227, 4228, 4229, 4230, 4231, 4232, 4233, 4234, 4285, 4286 and 4287 (suit properties). Notably, these parcels number 64, not 60.
5. In particular, it pleaded breach of contract by the defendant for failing to deliver completion documents for the suit properties within the completion period, failing to deliver unencumbered land, issuing a defective termination notice, and attempting irregularly to rescind the agreement. In consequence, it sought the following reliefs: -
a. An order for specific performance compelling the defendant to hand over to the plaintiff all completion documents as are now or would be necessary to transfer the suit properties into the plaintiff’s name and/or into the names of the plaintiff’s nominee, and to execute all necessary documents for the transfer of the said 60 plots.
b. In the alternative, an order authorising and requiring the deputy registrar of the court to execute all necessary completion documents as are or would be necessary to transfer the suit properties into the plaintiff’s name and/or into the names of the plaintiff’s nominees, and to execute all necessary documents for the transfer of the suit properties.
c. An order directing the land control board at Athi River to issue consents for the transfer of the suit properties.
d. An order to give vacant and unencumbered title and possession in accordance with the terms of the agreement.
e. Spent.
f. Spent.
g. Spent.
h. Spent.
i. Damages for breach of contract and loss of gain.
j. All necessary consequential accounts, directions and injuries.
k. Costs of the suit.
l. Interest on costs and damages at court rates from the date of ascertainment until the date of payment in full.
6. On service, the defendant filed a defence and counterclaim dated 23 May 2018, in which she made several assertions. She also denied some of the plaintiff’s averments and put it to strict proof. She admitted the existence of the agreement for sale dated 25 March 2016 and of the addendum dated 5 October 2016. She also admitted that, in the latter, the number of plots sold to the plaintiff was reduced from 129 to 121, excluding others.
7. The completion period was extended to 15 January 2017, with the revised balance of the purchase price reduced. She contended that the plaintiff had repeatedly breached the contract by failing to pay the purchase price when it fell due and paid it out of time by a period of 5 to 142 days.
8. As at 15 January 2017, the plaintiff was in breach for not paying the revised purchase price for 61 plots, culminating in the issuance of a completion notice dated 7 March 2017 for 61 plots. Eventually, the plaintiff remitted Kshs. 82,500,000/- to her on 28 March 2017 without interest. She informed the court that the plaintiff took possession on 25 March 2016.
9. In the counterclaim, she particularised breach of contract against the plaintiff for failing to pay the purchase price or the revisal thereof as stipulated in the agreement for sale and addendum and the interest thereon. Reasons wherefore, she sought the following reliefs;
a. A declaration that the defendant was entitled to rescind the agreement for sale between the parties lawfully.
b. An order of mesne profits from 25 March 2016 until the date of judgment.
c. An order for payment of interest for delayed payments of the purchase price as provided for in the agreement for sale and the Law Society Conditions of Sale.
d. Interest on (b) and (c) above at court rates from the date of judgment until payment in full.
e. Such other or further consequential orders as the court may deem fit and just to grant.
f. Costs of the suit.
10. Significantly, as a preliminary issue, the defendant did not testify, and her pleadings remained mere statements of fact that were unsubstantiated. Therefore, having considered the pleadings, the plaintiff’s evidence presented during the hearing on the merits and the issues as outlined in the plaintiff’s list of issues dated 4 July 2019, the following issues for determination arise: -
a) Were the terms of the agreement and addendum breached by the defendant?
b) Whether the plaintiff is entitled to the reliefs sought.
11. Having identified the issues to be decided, this court will now summarise the plaintiff’s evidence related to these issues as framed.
12. Hearing in this matter commenced on 24 February 2026, when only Thomas Dales Gitumbi, a director of the plaintiff, testified as PW1. He relied on his witness statements and oral testimony and produced documents marked Pex. 1-24. He largely reiterated the statements in the plaint, and this court will not dwell on reiterating them, as they were summarised earlier in the judgment.
13. He produced an undated agreement for sale as Pex. 1, which was executed by both parties. The agreement did not disclose when the plaintiff executed it, but the defendant executed it on 25 March 2016. The agreement pertained to the sale of 129 plots, including the suit properties, at the price of Kshs. 1,375,000/- per plot, all totalling Kshs. 177, 375,000/-
14. He also presented an addendum agreement dated 25 March 2016 (Pex. 6), under which the parties agreed to extend the completion period to 15 January 2017. The number of plots under the contract was reduced to 121, with a total purchase price of Kshs. 166,375,000/-. The agreement confirmed that a deposit of Kshs. 45,475,000/- had been paid, leaving a balance of Kshs. 120,900,000/- due by 15 January 2017.
15. He also produced correspondence between the law firms representing the parties to the transaction, some of which was on a “without prejudice” basis. Of interest is a letter dated 20 April 2016 (Pex. 3) forwarding the title deeds of 25 plots, including 10 plots that form part of the suit properties. These title deeds were returned to the defendant’s advocates by a letter dated 5 July 2016 (Pex. 5) for the purpose of registering a power of attorney in the name of Monica Muoki.
16. Consent to transfer Mavoko Town Blocks 2/4228 and 120 others, as per a certain list (Pex.8), was obtained from the Athi River Land Control Board (LCB) on 7 December 2016. In a letter dated 10 February 2017 (Pex.9), the plaintiff demanded title deeds and completion documents for 55 plots, which it stated were fully paid for. On 15 February 2017, the defendant informed him that two title deeds were misplaced and were the subject of a gazettement, but remitted title deeds for 53 parcels (Pex.10). Further, in a letter dated 28 February 2017, the defendant acknowledged receipt of a total of Kshs 86, 475,000/-, equivalent to 62.89 plots, as there was a balance of Kshs 151,250/- on one of the plots (Pex. 11).
17. In a letter dated 7 March 2017 (Pex. 13), the defendant issued a 21-day notice to terminate the contract in respect of 60 plots for failure to pay the balance of the purchase price as at 28 February 2017. The plaintiff responded in a letter dated (Pex. 12), claiming, amongst other things, instances of the defendant's breach, that termination of the contract could not precede a completion notice, and that the amounts already paid towards the purchase price were Kshs. 141, 775,000/-.
18. In a letter dated 10 March 2017 (Pex. 17), the defendant stated that it had issued refunds for payments in excess of 61 plots and instructed the plaintiff to prepare the transfer forms for those 61 plots. It appears that a refund of Kshs. 57 900,000/- was made to the plaintiff, as shown in a letter dated 14 March 2017 (Pex. 16). In Pex. 16, the plaintiff inquired whether it could make a further payment of Kshs. 62,000,000/-, leaving a balance of Kshs. 21,500,000/-, which would be paid upon the defendant fulfilling the terms of the contract and addendum.
19. As evidenced by a letter dated 28 March 2017 (Pex. 18) and its annexures, the plaintiff paid the defendant via RTGS on 27 March 2017, Kshs. 82,500,000/-, claiming this was the balance of the purchase price for the 121 plots. Further correspondence, which was on a without prejudice basis between the parties, reveals that the documents not released to the plaintiff relate as seen in Pex. 20, 21, and 22.
20. Upon conclusion of the hearing, the parties informed the court that they would file their written submissions within the stipulated timelines, which they subsequently failed to do. The court granted an extension of time for compliance; however, as of the date of penning this judgment, none have complied. Should they attempt to do so, the submissions will be deemed filed out of time and shall be automatically expunged without further reference to the court. We now proceed to address the issues for determination together.
21. Notwithstanding that the defendant did not testify, the evidential burden rested with the plaintiff, as the person alleging, to prove its claim, as provided by Sections 107 and 109 of the Evidence Act.
22. Now, having considered the evidence, in compliance with Section 3 (3) of the Law of Contract Act, the parties in an undated initial contract agreed to the disposal of 129 plots of land, with certain clauses being revised by an addendum agreement dated 25 March 2016. The parties were represented by counsel throughout the transaction.
23. Respecting prevailing jurisprudence, the parole evidence rule forbids the introduction of extrinsic evidence to modify the terms of a written contract between parties. This court aligns itself with the decision of Fidelity Commercial Bank Limited v Kenya Grange Vehicle Industries Limited [2017] eKLRCivil Appeal 61 of 2013, which stated: -
“So that where the intention of parties has in fact been reduced to writing, under the so called parol evidence rule, it is generally not permissible to adduce extrinsic evidence, whether oral or written, either to show the intention, or to contradict, vary or add to the terms of the document, including implied terms. Courts adopt the objective theory of contract interpretation, and profess to have the overriding aim of giving effect to the expressed intentions of the parties when construing a contract. This is what sometimes is called the principle of four corners of an instrument, which insists that a document's document meaning should be derived from the document itself, without reference to anything outside of the party (extrinsic evidence), such as the circumstances surrounding its writing or the history of the party or parties signing it.”
24. Concerning the conduct of parties to an agreement, this court adopts the dicta in Eldo City Limited v Corn Products Kenya Ltd & another [2013] KEHC 5916 (KLR) where the court stated:-
“It is trite law that in deciding disputes, it is the court’s duty to give effect to the intention of the parties. The parties’ intention is discernible from the documents and conduct of the parties. However, onerous a document or contract may be, the court’s duty is to give effect to it. In the case of Smith –vs- Cook (1891) AC 297 at 303 the court held: -
“The duty of the court is to give the natural meaning to the language of the deed unless it involves some manifest absurdity or would be inconsistent with some other provision of the deed and would therefore be contrary to the intention of the parties as appearing upon the face of the deed.”
In the case of Rose and Frank Co. –vs- J.R Crompton and Brothers Ltd (1923) 2 KB 261, the court held that there was nothing wrong in having clauses in an agreement where parties agree not to be bound in law but subject to a contract being drawn up.”
25. Respecting damages for breach of contract and losses, the Court of Appeal in Kenya Tourist Development Corporation v Sundowner Lodge Limited [2018] KECA 312 (KLR) held as follows: -
“Beyond the non-recoverability of general damages for breach of contract, a proper consideration of the nature of the respondent’s claim ought to have led to the same conclusion that only such proven loss could be compensated by way of damages.”
26. About loss of profit, the decision in Hydro Water Well (K) Limited v Sechere & 2 others (sued in their representative capacity as the officers of Chae Kenya Society & 2 others) (sued in their representative capacity as the officers of Chae Kenya Society) [2021] KEHC 22 (KLR) held that a plaintiff must demonstrate three elements: that the plaintiff’s alleged loss was the proximate result of the breach, that the parties reasonably foresaw such damages, and that the damages are certain and not speculative.
27. Reverting to the two contracts, in the addendum, the parties reduced the number of plots subject to the contract to 121 plots without disclosing the particulars of which plots had been excluded from the initial contract. At the time of the addendum, the plaintiff had already paid Kshs. 45,475,000/- towards the purchase price, leaving a balance of Kshs. 120,900,000/-. This final balance was due by 15 January 2017.
28. It was a term of the initial contract that payment of the purchase price would be in instalments commensurate with a certain number of title deeds, as follows: upon execution of the initial sale agreement, the purchaser was to pay Kshs. 35, 475,000/-, and in exchange, the defendant was to deliver completion documents for these 25 plots. The other three subsequent instalments towards the balance were to be paid, respectively, 60, 90, and 120 days after signing the agreement.
29. The initial contract did not disclose whether these dates were to be counted from the date the plaintiff executed the agreement or otherwise. This confusion is evident from Pex. 4, a letter dated 13 April 2016 from the plaintiff to the defendant, which states as follows about paragraph 3.1 of the initial contract, as follows:
“We confirm receipt of your acknowledgement of payment of the deposit of Kshs. 35, 475,000/= as per paragraph 3.1 of the said sale agreement.
Kindly let us know how soon we expect to receive the completion documents for the first 25 plots as per the Sale Agreement, at which point we believe the sale agreement should be dated and time starts to run as per the said paragraph.”
30. It is uncertain when the plaintiff made these payments towards the first deposit, as the date on which it executed this agreement is not disclosed, and there is no record of a bank deposit or receipt. Nonetheless, the addendum reveals that the first deposit of Kshs. 35,475,000/- was paid, and a further payment of Kshs. 10,000,000/- was made on 17 October 2016. This means that, as at the time of the addendum, the plaintiff had made total payments of 45, 475,000/-.
31. Regarding payment of the balance of Kshs. 120,900,000/-, this court has only found RTGS payments totalling Kshs. 82,500,000/-. It is uncertain when the difference of Kshs. 38,400,000/- was paid. However, correspondence shows that this was paid prior to the last instalment of Kshs. 82,500,000/-. This is evident from a letter dated 7 March 2017 from the defendant (Pex. 13) demanding payment of the balance of the purchase price in the amount of Kshs. 82,500,000/-, which equates to 60 plots. This letter states:
“We have instructions from our client Bibiana Mbatha Ngotho the vendor herein, to formally give you Twenty One (21) days Notice for termination of sale of the remaining Sixty (60) plots due to your failure to pay for the same by 28th February as agreed by the parties to the Agreement.”
32. This notice clearly conflicted with the provisions of the initial contract, as clause 7.1 stipulated a requirement for a 21-day notice prior to rescission. Evidence from the conduct of both parties demonstrates that they were both in breach throughout the duration of the contract and continued to accommodate each other, as demonstrated by correspondence (those that were not “on without prejudice”) and the addendum.
33. Based on uncontroverted evidence, the plaintiff duly complied with the defective termination notice and remitted the final payment of Kshs. 82,500,000/- before expiry. However, it is apparent from the plaintiff’s letter dated 23 March 2017 that the defendant failed to deliver the completion documents for the final batch of 60 plots, despite the plaintiff's requests for completion following the plaintiff's performance of the notice.
34. Significantly, the court draws an adverse inference against the defendant, who, despite submitting a witness statement and a list of documents, failed to testify. Accordingly, this court finds that the defendant is in breach of contract for failing to furnish the completion documents for the 60 plots. It finds it unjust for the defendant to retain possession of both the land and the purchase price for the 60 plots. Finally, given that the land was sold with vacant possession, that preservatory orders were issued by this court on 27 March 2017, that the plaintiff has fulfilled the contractual obligations, that the contract is enforceable, that there is part performance by the plaintiff, who has remitted completion documents for over 61 plots, and that there is no equitable bar to its performance, this court determines that the appropriate remedy is that of specific performance, as pleaded by the plaintiff. In arriving at this, this court is guided by the Court of Appeal decision of Kitilit v Kibet [2018] KECA 573 (KLR), which held: -
“Upon the application of the equitable doctrines, the court in its discretion may award damages and where damages are an inadequate remedy grant the equitable remedy of specific performance.”
35. Regarding the disputed plots, there exists a discrepancy as the particulars listed under paragraph 15 of the plaint indicate a total of 64 plots, contrary to the claimed 60. The prayers in the plaint, particularly paragraphs (a) and (b), demonstrate that the plaintiff's interest pertains solely to the 60 plots in question. Consequently, the court will issue appropriate orders concerning these 60 plots.
36. Respecting the other reliefs for various damages, guided by Kenya Tourist Development Corporation (Supra) and Hydro Water Well (K) Limited, this court finds that the plaintiff is not entitled to these orders for reasons that it is trite law that general damages are not recoverable in cases of alleged breach of contract unless the exceptions to the general rule apply, and additionally, the plaintiff never led evidence or proved its claim of loss of opportunity and gain. As for the prayer for the obtaining of LCB consent, this court finds it to be a spent issue, as is clear from Pex.8. It also finds that the plaintiff is undeserving of other reliefs save for costs.
37. Ultimately, for the reasons and findings articulated hereinabove, this court determines that the plaintiff proved its case on the required standard of a balance of probabilities. Since it did not defend the counterclaim, it shall be entitled only to the costs of its suit. Consequently, this court grants the following dispositive orders: -
a) That within 60 days hereof, an order is hereby issued compelling the defendant to hand over to the plaintiff all completion documents that are now or would be necessary to transfer 60 out of the 64 plots of Mavoko Town Blocks 2/4072, 4073, 4074, 4075, 4090, 4091, 4094, 4095, 4096, 4097, 4098, 4099, 4100, 4101, 4102, 4117, 4126, 4127, 4128, 4129, 4130, 4131, 4132, 4133, 4134, 4135, 4136, 4137, 4138, 4141, 4142, 4143, 4144, 4145, 4146, 4147, 4148, 4149, 4154, 4160, 4164, 4165, 4166, 4167, 4168, 4169, 4170, 4227, 4171, 4175, 4178, 4179, 4180, 4181, 4227, 4228, 4229, 4230, 4231, 4232, 4233, 4234, 4285, 4286 and 4287, and to execute all necessary documents for the transfer of the said 60 plots to the plaintiff.
b. That in default of compliance with order (a) above by the defendant, the Deputy Registrar of the court is hereby directed to execute all necessary completion documents as are or would be necessary to transfer 60 out of the 64 plots of Mavoko Town Blocks 2/4072, 4073, 4074, 4075, 4090, 4091, 4094, 4095, 4096, 4097, 4098, 4099, 4100, 4101, 4102, 4117, 4126, 4127, 4128, 4129, 4130, 4131, 4132, 4133, 4134, 4135, 4136, 4137, 4138, 4141, 4142, 4143, 4144, 4145, 4146, 4147, 4148, 4149, 4154, 4160, 4164, 4165, 4166, 4167, 4168, 4169, 4170, 4227, 4171, 4175, 4178, 4179, 4180, 4181, 4227, 4228, 4229, 4230, 4231, 4232, 4233, 4234, 4285, 4286 and 4287, into the plaintiff’s name and to execute all necessary documents for the transfer the said 60 plots to the plaintiff.
c) That within 60 days hereof, the defendant is directed to deliver vacant and unencumbered title and possession of 60 out of the 64 plots of Mavoko Town Blocks 2/4072, 4073, 4074, 4075, 4090, 4091, 4094, 4095, 4096, 4097, 4098, 4099, 4100, 4101, 4102, 4117, 4126, 4127, 4128, 4129, 4130, 4131, 4132, 4133, 4134, 4135, 4136, 4137, 4138, 4141, 4142, 4143, 4144, 4145, 4146, 4147, 4148, 4149, 4154, 4160, 4164, 4165, 4166, 4167, 4168, 4169, 4170, 4227, 4171, 4175, 4178, 4179, 4180, 4181, 4227, 4228, 4229, 4230, 4231, 4232, 4233, 4234, 4285, 4286 and 4287 to the plaintiff.
d) That the defendant shall bear the plaintiff’s costs of the suit.
e) That the counterclaim is dismissed with no orders as to costs.
Judgment accordingly.
Delivered and Dated at Machakos this 22nd day of September, 2026.
HON. A. Y. KOROSS
JUDGE
22.09.2026
Judgment delivered virtually through Microsoft Teams Video Conferencing Platform;
In the presence of;
Ms. Kanja Court Assistant.
Miss Mbugua holding brief for Mr. Kago for the defendants.
No appearance for other parties.