1. This suit was instituted through the Plaint dated 29th February 2016. The Plaintiff claims that by a sale agreement dated 14th December 2012, he sold to the Defendant ½ an acre out of his 1 ¼ acre plot number 38 allotted to him as a shareholder of Mwichwiri Farmers Company Limited. Following the sale, the Plaintiff gave the Defendant possession and use of the portion sold.
2. The Plaintiff claims that, without his consent, the Defendant, illegally and contrary to and, in breach of the sale agreement, took possession of the suit land in excess of the land sold to him to an extent of ¼ acre more, and appropriated the extra part to the sale agreement.
3. The Plaintiff avers that the Defendant’s acts amount to conversion and forcible detainer of land. He further claims that this breach caused him loss, as he was denied use of the excess part of the suit land, he suffered trespass to his land and commission of acts of waste.
4. The Plaintiff stated that he served the defendant with the requisite eviction notice under section 41 of the Land Act 2012, but the defendant has ignored, failed, and/or refused to comply.
5. The Plaintiff prays for judgment against the Defendant for the following orders:
a) An order for rescission of the sale agreement dated 14.12.2012 and vacant possession of the parcel of land PLOT NO.138, MWICHWIRI FARMERS COMPANY LIMITED.
b) Costs and interest.
The Defendant’s statement of defence and counterclaim
6. The Defendant admitted entering into a sale agreement dated 14th December 2012 with the Plaintiff for a portion measuring ½ an acre of the suit land and taking possession of the same.
7. The Defendant stated that he was shown his portion of the land by the Plaintiff, who pointed out the edges and the boundaries, and he took possession. Consequently, he avers that the Plaintiff has no right to rescind the agreement for sale. The Defendant filed a counterclaim, denying that he had encroached onto the Plaintiff's land and sought the following orders:
a) The suit herein is dismissed.
b) That a permanent injunction do issue restraining the Plaintiff, his heirs, assignees, agents, servants or anyone else in his authority from entering, evicting and or interfering in any way with the Defendant's ownership and possession of all that portion of land sold under the sale agreement dated 14th December 2012 between the parties herein.
c) Costs of the suit.
8. On 16th December 2024, Mr Karumubuga, Advocate for the Plaintiff, and Mr Macharia, Advocate for the Defendant, appeared before the Hon Justice Olola, and this suit was set down for hearing on 24th February 2025. On the hearing date, Counsel for the Defendant and his client were absent, and the matter proceeded for hearing notwithstanding their absence.
Hearing of the suit
9. PW 1, the Plaintiff, testified by adopting his witness statement dated 29th February 2010 and his bundle of documents as evidence. He stated that he is the owner of the land known as Plot No.138 Mwichwiri Farmers Company Ltd, measuring 1¼ acres or thereabout. He sold ½ an acre of the land to the Defendant herein and allowed him possession pending the issuance of the title deed and formal subdivision. However, the Defendant forcibly possessed an extra ¼ acre more than was agreed, which he has refused to vacate despite demands.
10. The Plaintiff stated that he wished to refund the money to the Defendant and get back his land since the Defendant has refused to act in accordance with the agreement and has destroyed his land.
11. Due to the absence of the Defendant and his Counsel during the hearing of the suit, the counterclaim filed by the Defendant is hereby dismissed with no order as to costs.
The Plaintiff’s written submissions
12. Counsel for the Plaintiff identified several issues for determination:
i) Whether the sale agreement dated 14th December 2012 was lawfully rescinded by the Plaintiff.
ii) Whether, upon rescission of the sale agreement, the defendant became a trespasser to the suit property.
iii) Whether the Plaintiff is entitled to damages from the defendant.
iv) Who shall bear the costs of the suit?
13. Counsel cited the authority of William Kazungu Karisa vs Cosmas Angore Cnzera (2006) eKLR, for the submission that the basic rule of the law of contract is that parties must perform their respective obligations.
14. Counsel relied on the definition of ‘rescission’ as provided under the Law Society Conditions of Sale Condition 6 and relied on the cases of Njamunyu vs Nyaga(1983) eKLR and Housing Company of East African Ltd vs. Board of Trustees, National Social Security Fund & 2 others(2018)eKLR, submitting that the Plaintiff, who is the innocent party is entitled to rescind the agreement, which rescission was done lawfully.
15. It was further submitted that upon breach of the agreement for sale of the land and rescission, the Defendant became a trespasser upon the suit land, which still continues.
16. On the third issue, Counsel submitted that the suit property was fully developed with trees growing on the land, which the Plaintiff had to cut down and remove in order to put the Defendant in possession. The trees were a source of livelihood for the Plaintiff at the time the Sale Agreement was entered into. It is also highlighted that the Defendant remained in occupation of the suit property, without paying any rents and rates, even after a Notice of Rescission being issued on 14th January 2016. Thus, Counsel submitted that the Plaintiff was deprived of the legitimate right to utilise and extract income from the land and is entitled to compensation in the form of mesne profits. Counsel quoted Order 21 rule 13 of the Civil Procedure Rules and the case of Attorney General v. Halal Meat Products Ltd (2016) eKLR in support of this.
17. The Court was invited to find that the Defendant has been in illegal and unlawful occupation since the date of rescission of the sale agreement and that the Plaintiff is entitled to general damages as a result. Counsel submitted that costs follow the events as provided by Section 27 of the Civil Procedure Act and Party of Independent Candidate of Kenya & another v. Mutula Kilonzo & 2 others (2013) eKLR.
Analysis and Determination
18. The Court has considered the pleadings in this case, the evidence adduced, and the submissions filed by Counsel for the Plaintiff. The Court will consider the issues arising for determination as set out by the Counsel for the Plaintiff.
i) Whether the rescission of the sale agreement dated 14th December 2012 by the Plaintiff was lawful.
19. The Black’s Law Dictionary defines ‘rescission’ as:
"Rescission, or the act of rescinding, is where a contract is cancelled, annulled, or abrogated by the parties, or one of them…… Rescission is where an act, valid in appearance, nevertheless conceals a defect, which may make it null, if demanded by any of the parties; as, for example, mistake, force, fraud, deceit, want of sufficient age, etc.”
20. The Plaintiff relied on Condition 6 of the Law Society Conditions of Sale, which provides that:
“Where a Purchaser makes an objection or a requisition under this Condition 6 with which the Vendor is unable to comply or with which the Vendor is unwilling to comply on reasonable grounds of difficulty, delay or unreasonable expense:
(a) The Vendor may give to the Purchaser written notice referring to this Condition, specifying the Vendor's grounds and requesting withdrawal of the objection or requisition within a specified period, not less than seven (7) days;
(b) The Purchaser may, at the expiry of the period set in sub-condition 6.3.1 (as may be extended) and 6.4.1 (a), rescind the Agreement. If the Purchaser fails to withdraw the objection or requisition within the period specified by the notice, the Vendor may, by notice in writing to the Purchaser, rescind the Agreement. The Purchaser may also rescind the Agreement if the documents are not made available as requested, in which case the provisions of sub-condition 6.4.3 will apply.
21. In support of his claim, the Plaintiff relied on the sale agreement between himself and the Defendant dated 14th December 2012. The Plaintiff sold ½ an acre out of plot number 138, Mwichwiri Farmers Company Limited (NaroMoru), whose total measurement was 1 ¼ acres. The consideration for the sale was Kshs 250,000, which amount was acknowledged as having been paid by the Vendor and received by the Purchaser.
22. The agreement further states that the Purchaser was shown the site of the subdivision on the ground by the Vendor. The Purchaser was to take vacant possession on 28th February 2013, to allow the vendor time to remove all trees growing on the land, and the Purchaser eventually took possession as agreed. Condition number 8 of the sale agreement was that the Vendor was to allow the Purchaser quiet, peaceful and uninterrupted use and enjoyment of the plot without interference from the Vendor or anybody claiming under him.
23. The Plaintiff claims that, without his consent, the Defendant, illegally and contrary to and in breach of the sale agreement, took possession of the suit land in excess of the land sold to him to an extent of ¼ acre more, and appropriated the extra part to the sale agreement.
24. As a result of the above alleged acts of the Defendant, the Plaintiff issued the Defendant a notice of rescission of the sale agreement dated 14th January 2016, claiming that the Defendant's acts amounted to forcible detainer, a criminal offence under Section 91 of the Penal Code, hence a fundamental breach of the sale agreement.
25. It is trite law that parties to a contract are bound by the terms unless one can prove elements such as fraud, duress/coercion, undue influence, mistake or lack of capacity. In National Bank of Kenya Ltd vs. Pipe Plastic Samkolit (K) Ltd (2002) 2 E.A. 503, (2011) eKLR, the Court of Appeal stated as follows: -
“A court of law cannot rewrite a contract between the parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded and proved.”
26. In the Court's opinion, the Plaintiff did not plead or prove coercion, fraud, undue influence, mistake or lack of capacity in order to nullify the contract between himself and the Defendant. There was consensus between the parties on all the terms of the agreement herein, and the Defendant took possession as agreed. The consideration for the portion sold was also paid. In the Court's view, the contract became binding on the parties, and the Plaintiff was not entitled to take back the land by way of rescission.
27. As per the sale agreement, the Plaintiff showed the Defendant the boundary for the portion sold to him. The Plaintiff did not show through evidence how the boundaries shown to the Defendant were interfered with or removed. The Defendant is said to have remained in possession since February 2013 until the notice dated 14th January 2016 was sent to him. Save for the Plaintiff’s word, no evidence was tendered to show that indeed there was any possession of land beyond what was purchased, when possession of the extra land started and the form of the said possession, either in terms of farming, construction or any other form of possession. Indeed, one would have expected proof of interference in the form of a surveyor’s report that would clearly show the measurements of the ½ acre purchased and the extent of the encroachment by the Defendant, if at all.
28. From the foregoing, the Court finds that the Plaintiff failed to prove allegations made in the pleadings, in accordance with the standard of proof in civil cases, which is on a balance of probabilities. The Court of Appeal in Mumbi M'Nabea v David M.Wachira [2016] eKLR found as follows on the burden of proof in the Kenyan context:
“In our jurisdiction, the standard of proof in civil liability claims is that of the balance of probabilities. This means that the Court will assess the oral, documentary and real evidence advanced by each party and decide which case is more probable. To put it another way, based on the evidence, which occurrence of the event was more likely to happen than not Section 107(1) of the Evidence Act, Cap 80 Laws of Kenya provides as follows:-
“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”
The above provision provides for the legal burden of proof. However, Section 109 of the same Act provides for the evidentiary burden of proof and states as follows:-
“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”
The position was reaffirmed by the Court of Appeal in Maria Ciabaitaru M’mairanyi & Others v. Blue Shield Insurance Company Limited -Civil Appeal No. 101 of 2000 [2005] 1 EA 280, where it was held that:-
“Whereas under section 107 of the Evidence Act, (which deals with the evidentiary burden of proof), the burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue, section 109 of the same Act recognizes that the burden of proof as to any particular fact may be cast on the person who wishes the Court to believe in its existence.”
29. In the case of Eldo City Ltd vs Corn Products Kenya Ltd & Another (2013) eKLR, the court held as follows:
"In my view, to uphold the position where a party can pull out of a transaction when the parties are already at consensus ad idem, will not be prudent in the world of economics. To my mind, that freedom should be limited up to the point where the parties are still negotiating. Once all terms have been agreed and settled, that freedom should dissipate. Otherwise, mischievous parties with no intention of selling their merchandise may engage serious purchasers in a wild goose chase, knowing very well that they can pull out at any stage. I think this is not to be encouraged."
30. In the present case, the Plaintiff fits the category of the mischievous party who wants to have his cake and eat it and who, having received the purchase price, now wants to have the entire land back on the unproven claim that the Defendant extended possession of the land to the unsold portion. The Court is of the view that the Plaintiffs' claim is not made in good faith, and the same cannot be allowed
31. In the end, the court finds that the sale agreement dated 14th December 2012 was not lawfully rescinded by the Plaintiff.
Issues ii) and iii): Whether, upon rescission of the sale agreement, the defendant became a trespasser to the suit property and whether the Plaintiff is entitled to damages from the defendant
32. Having found that there was no lawful rescission of the sale agreement, and that there was no proof that the Defendant took possession of land beyond what he purchased, the questions of whether, upon rescission of the sale agreement, the defendant became a trespasser to the suit property, and whether the Plaintiff is entitled to damages from the defendant, become moot. The Plaintiff has not proved in the circumstances of this case that by virtue of the alleged rescission of the sale agreement, the Defendant became a trespasser either on the portion of land that he purchased or the stated extra ¼ acre portion. The Plaintiff has also not proved that he is entitled to damages.
Who shall bear the costs of the suit?
33. In the circumstances of this case and taking into account that the Defendant did not attend court for the hearing of the suit, the court makes no order as to costs.
34. The final order of the court is that the Plaintiff’s suit lacks merit and it is hereby dismissed with no order as to costs. The Defendant’s counterclaim is also dismissed with no order as to costs.
Dated, Signed and Delivered at Nyeri, this 11th day of December 2025
Delivered in the Presence of:-
Ms Kendi -Court Assistant
Kamurubanga for Plaintiff
No appearance for Defendant
2. The Plaintiff claims that, without his consent, the Defendant, illegally and contrary to and, in breach of the sale agreement, took possession of the suit land in excess of the land sold to him to an extent of ¼ acre more, and appropriated the extra part to the sale agreement.
3. The Plaintiff avers that the Defendant’s acts amount to conversion and forcible detainer of land. He further claims that this breach caused him loss, as he was denied use of the excess part of the suit land, he suffered trespass to his land and commission of acts of waste.
4. The Plaintiff stated that he served the defendant with the requisite eviction notice under section 41 of the Land Act 2012, but the defendant has ignored, failed, and/or refused to comply.
5. The Plaintiff prays for judgment against the Defendant for the following orders:
a) An order for rescission of the sale agreement dated 14.12.2012 and vacant possession of the parcel of land PLOT NO.138, MWICHWIRI FARMERS COMPANY LIMITED.
b) Costs and interest.
The Defendant’s statement of defence and counterclaim
6. The Defendant admitted entering into a sale agreement dated 14th December 2012 with the Plaintiff for a portion measuring ½ an acre of the suit land and taking possession of the same.
7. The Defendant stated that he was shown his portion of the land by the Plaintiff, who pointed out the edges and the boundaries, and he took possession. Consequently, he avers that the Plaintiff has no right to rescind the agreement for sale. The Defendant filed a counterclaim, denying that he had encroached onto the Plaintiff's land and sought the following orders:
a) The suit herein is dismissed.
b) That a permanent injunction do issue restraining the Plaintiff, his heirs, assignees, agents, servants or anyone else in his authority from entering, evicting and or interfering in any way with the Defendant's ownership and possession of all that portion of land sold under the sale agreement dated 14th December 2012 between the parties herein.
c) Costs of the suit.
8. On 16th December 2024, Mr Karumubuga, Advocate for the Plaintiff, and Mr Macharia, Advocate for the Defendant, appeared before the Hon Justice Olola, and this suit was set down for hearing on 24th February 2025. On the hearing date, Counsel for the Defendant and his client were absent, and the matter proceeded for hearing notwithstanding their absence.
Hearing of the suit
9. PW 1, the Plaintiff, testified by adopting his witness statement dated 29th February 2010 and his bundle of documents as evidence. He stated that he is the owner of the land known as Plot No.138 Mwichwiri Farmers Company Ltd, measuring 1¼ acres or thereabout. He sold ½ an acre of the land to the Defendant herein and allowed him possession pending the issuance of the title deed and formal subdivision. However, the Defendant forcibly possessed an extra ¼ acre more than was agreed, which he has refused to vacate despite demands.
10. The Plaintiff stated that he wished to refund the money to the Defendant and get back his land since the Defendant has refused to act in accordance with the agreement and has destroyed his land.
11. Due to the absence of the Defendant and his Counsel during the hearing of the suit, the counterclaim filed by the Defendant is hereby dismissed with no order as to costs.
The Plaintiff’s written submissions
12. Counsel for the Plaintiff identified several issues for determination:
i) Whether the sale agreement dated 14th December 2012 was lawfully rescinded by the Plaintiff.
ii) Whether, upon rescission of the sale agreement, the defendant became a trespasser to the suit property.
iii) Whether the Plaintiff is entitled to damages from the defendant.
iv) Who shall bear the costs of the suit?
13. Counsel cited the authority of William Kazungu Karisa vs Cosmas Angore Cnzera (2006) eKLR, for the submission that the basic rule of the law of contract is that parties must perform their respective obligations.
14. Counsel relied on the definition of ‘rescission’ as provided under the Law Society Conditions of Sale Condition 6 and relied on the cases of Njamunyu vs Nyaga(1983) eKLR and Housing Company of East African Ltd vs. Board of Trustees, National Social Security Fund & 2 others(2018)eKLR, submitting that the Plaintiff, who is the innocent party is entitled to rescind the agreement, which rescission was done lawfully.
15. It was further submitted that upon breach of the agreement for sale of the land and rescission, the Defendant became a trespasser upon the suit land, which still continues.
16. On the third issue, Counsel submitted that the suit property was fully developed with trees growing on the land, which the Plaintiff had to cut down and remove in order to put the Defendant in possession. The trees were a source of livelihood for the Plaintiff at the time the Sale Agreement was entered into. It is also highlighted that the Defendant remained in occupation of the suit property, without paying any rents and rates, even after a Notice of Rescission being issued on 14th January 2016. Thus, Counsel submitted that the Plaintiff was deprived of the legitimate right to utilise and extract income from the land and is entitled to compensation in the form of mesne profits. Counsel quoted Order 21 rule 13 of the Civil Procedure Rules and the case of Attorney General v. Halal Meat Products Ltd (2016) eKLR in support of this.
17. The Court was invited to find that the Defendant has been in illegal and unlawful occupation since the date of rescission of the sale agreement and that the Plaintiff is entitled to general damages as a result. Counsel submitted that costs follow the events as provided by Section 27 of the Civil Procedure Act and Party of Independent Candidate of Kenya & another v. Mutula Kilonzo & 2 others (2013) eKLR.
Analysis and Determination
18. The Court has considered the pleadings in this case, the evidence adduced, and the submissions filed by Counsel for the Plaintiff. The Court will consider the issues arising for determination as set out by the Counsel for the Plaintiff.
i) Whether the rescission of the sale agreement dated 14th December 2012 by the Plaintiff was lawful.
19. The Black’s Law Dictionary defines ‘rescission’ as:
"Rescission, or the act of rescinding, is where a contract is cancelled, annulled, or abrogated by the parties, or one of them…… Rescission is where an act, valid in appearance, nevertheless conceals a defect, which may make it null, if demanded by any of the parties; as, for example, mistake, force, fraud, deceit, want of sufficient age, etc.”
20. The Plaintiff relied on Condition 6 of the Law Society Conditions of Sale, which provides that:
“Where a Purchaser makes an objection or a requisition under this Condition 6 with which the Vendor is unable to comply or with which the Vendor is unwilling to comply on reasonable grounds of difficulty, delay or unreasonable expense:
(a) The Vendor may give to the Purchaser written notice referring to this Condition, specifying the Vendor's grounds and requesting withdrawal of the objection or requisition within a specified period, not less than seven (7) days;
(b) The Purchaser may, at the expiry of the period set in sub-condition 6.3.1 (as may be extended) and 6.4.1 (a), rescind the Agreement. If the Purchaser fails to withdraw the objection or requisition within the period specified by the notice, the Vendor may, by notice in writing to the Purchaser, rescind the Agreement. The Purchaser may also rescind the Agreement if the documents are not made available as requested, in which case the provisions of sub-condition 6.4.3 will apply.
21. In support of his claim, the Plaintiff relied on the sale agreement between himself and the Defendant dated 14th December 2012. The Plaintiff sold ½ an acre out of plot number 138, Mwichwiri Farmers Company Limited (NaroMoru), whose total measurement was 1 ¼ acres. The consideration for the sale was Kshs 250,000, which amount was acknowledged as having been paid by the Vendor and received by the Purchaser.
22. The agreement further states that the Purchaser was shown the site of the subdivision on the ground by the Vendor. The Purchaser was to take vacant possession on 28th February 2013, to allow the vendor time to remove all trees growing on the land, and the Purchaser eventually took possession as agreed. Condition number 8 of the sale agreement was that the Vendor was to allow the Purchaser quiet, peaceful and uninterrupted use and enjoyment of the plot without interference from the Vendor or anybody claiming under him.
23. The Plaintiff claims that, without his consent, the Defendant, illegally and contrary to and in breach of the sale agreement, took possession of the suit land in excess of the land sold to him to an extent of ¼ acre more, and appropriated the extra part to the sale agreement.
24. As a result of the above alleged acts of the Defendant, the Plaintiff issued the Defendant a notice of rescission of the sale agreement dated 14th January 2016, claiming that the Defendant's acts amounted to forcible detainer, a criminal offence under Section 91 of the Penal Code, hence a fundamental breach of the sale agreement.
25. It is trite law that parties to a contract are bound by the terms unless one can prove elements such as fraud, duress/coercion, undue influence, mistake or lack of capacity. In National Bank of Kenya Ltd vs. Pipe Plastic Samkolit (K) Ltd (2002) 2 E.A. 503, (2011) eKLR, the Court of Appeal stated as follows: -
“A court of law cannot rewrite a contract between the parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded and proved.”
26. In the Court's opinion, the Plaintiff did not plead or prove coercion, fraud, undue influence, mistake or lack of capacity in order to nullify the contract between himself and the Defendant. There was consensus between the parties on all the terms of the agreement herein, and the Defendant took possession as agreed. The consideration for the portion sold was also paid. In the Court's view, the contract became binding on the parties, and the Plaintiff was not entitled to take back the land by way of rescission.
27. As per the sale agreement, the Plaintiff showed the Defendant the boundary for the portion sold to him. The Plaintiff did not show through evidence how the boundaries shown to the Defendant were interfered with or removed. The Defendant is said to have remained in possession since February 2013 until the notice dated 14th January 2016 was sent to him. Save for the Plaintiff’s word, no evidence was tendered to show that indeed there was any possession of land beyond what was purchased, when possession of the extra land started and the form of the said possession, either in terms of farming, construction or any other form of possession. Indeed, one would have expected proof of interference in the form of a surveyor’s report that would clearly show the measurements of the ½ acre purchased and the extent of the encroachment by the Defendant, if at all.
28. From the foregoing, the Court finds that the Plaintiff failed to prove allegations made in the pleadings, in accordance with the standard of proof in civil cases, which is on a balance of probabilities. The Court of Appeal in Mumbi M'Nabea v David M.Wachira [2016] eKLR found as follows on the burden of proof in the Kenyan context:
“In our jurisdiction, the standard of proof in civil liability claims is that of the balance of probabilities. This means that the Court will assess the oral, documentary and real evidence advanced by each party and decide which case is more probable. To put it another way, based on the evidence, which occurrence of the event was more likely to happen than not Section 107(1) of the Evidence Act, Cap 80 Laws of Kenya provides as follows:-
“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”
The above provision provides for the legal burden of proof. However, Section 109 of the same Act provides for the evidentiary burden of proof and states as follows:-
“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”
The position was reaffirmed by the Court of Appeal in Maria Ciabaitaru M’mairanyi & Others v. Blue Shield Insurance Company Limited -Civil Appeal No. 101 of 2000 [2005] 1 EA 280, where it was held that:-
“Whereas under section 107 of the Evidence Act, (which deals with the evidentiary burden of proof), the burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue, section 109 of the same Act recognizes that the burden of proof as to any particular fact may be cast on the person who wishes the Court to believe in its existence.”
29. In the case of Eldo City Ltd vs Corn Products Kenya Ltd & Another (2013) eKLR, the court held as follows:
"In my view, to uphold the position where a party can pull out of a transaction when the parties are already at consensus ad idem, will not be prudent in the world of economics. To my mind, that freedom should be limited up to the point where the parties are still negotiating. Once all terms have been agreed and settled, that freedom should dissipate. Otherwise, mischievous parties with no intention of selling their merchandise may engage serious purchasers in a wild goose chase, knowing very well that they can pull out at any stage. I think this is not to be encouraged."
30. In the present case, the Plaintiff fits the category of the mischievous party who wants to have his cake and eat it and who, having received the purchase price, now wants to have the entire land back on the unproven claim that the Defendant extended possession of the land to the unsold portion. The Court is of the view that the Plaintiffs' claim is not made in good faith, and the same cannot be allowed
31. In the end, the court finds that the sale agreement dated 14th December 2012 was not lawfully rescinded by the Plaintiff.
Issues ii) and iii): Whether, upon rescission of the sale agreement, the defendant became a trespasser to the suit property and whether the Plaintiff is entitled to damages from the defendant
32. Having found that there was no lawful rescission of the sale agreement, and that there was no proof that the Defendant took possession of land beyond what he purchased, the questions of whether, upon rescission of the sale agreement, the defendant became a trespasser to the suit property, and whether the Plaintiff is entitled to damages from the defendant, become moot. The Plaintiff has not proved in the circumstances of this case that by virtue of the alleged rescission of the sale agreement, the Defendant became a trespasser either on the portion of land that he purchased or the stated extra ¼ acre portion. The Plaintiff has also not proved that he is entitled to damages.
Who shall bear the costs of the suit?
33. In the circumstances of this case and taking into account that the Defendant did not attend court for the hearing of the suit, the court makes no order as to costs.
34. The final order of the court is that the Plaintiff’s suit lacks merit and it is hereby dismissed with no order as to costs. The Defendant’s counterclaim is also dismissed with no order as to costs.
Dated, Signed and Delivered at Nyeri, this 11th day of December 2025
Delivered in the Presence of:-
Ms Kendi -Court Assistant
Kamurubanga for Plaintiff
No appearance for Defendant