(Being an appeal from the Judgment of Hon. Robert G. Mundia (PM) in
Embu CM-ELC No. 31 of 2019 delivered on 15th July 2025)
A. INTRODUCTION
1. This is a first appeal arising from the Judgment of the Learned Principal Magistrate, Hon. Robert G. Mundia, in Embu CM-ELC No. 31 of 2019, delivered on 15th July 2025. The Appellant, Purity Wawira Muthee, was the plaintiff in the lower court while the Respondents, Gicovi Dishon Njagi and Moses Kariuki Gicovi, were the 1st and 2nd defendants respectively.
2. In the lower court, the Appellant had instituted the suit vide a plaint dated 26th April 2019, seeking specific performance of a land sale agreement dated 15th April 2002 alternatively damages for breach thereof, costs and interest.
3. The trial Magistrate found that both parties had breached the agreement, ordered the 1st Respondent to pay the Appellant Kshs. 22,850/= representing 25% of the sum refunded, directed interest to run from the date of judgment, and ordered each party to bear its own costs.
4. Aggrieved, the Appellant prefers this appeal on six grounds, principally that the trial Magistrate erred in finding mutual breach, in treating the unilateral refund as an acceptance of rescission, in limiting the remedy to a fraction of the purchase price, in directing interest from the date of judgment only, and in exonerating the 2nd Respondent.
5. This Court sits as a first appellate court from the Subordinate Court (Magistrate's Court). The duty of a first appellate court is settled. In Selle & Another v Associated Motor Boat Company Ltd & Others [1968] EA 123, it was held that a first appellate court is enjoined to reconsider and re-evaluate the evidence on record and to draw its own independent conclusions thereon, while giving due allowance for the fact that the trial court had the advantage of seeing and hearing the witnesses. This Court is accordingly guided.
6. The following facts are either common ground or sufficiently established on the evidence:
(i) On 15th April 2002, the 1st Respondent, Gicovi Dishon Njagi, entered into a land sale agreement with the Appellant for the sale of 1/2 an acre to be excised from land parcel No. NGANDORI/KIRIGI/895, which formed part of the estate of the late Dishon Nthiga Nderi.
(ii) The agreed purchase price was Kshs. 125,000/=. The Appellant paid a total of Kshs. 91,400/= leaving a balance of Kshs. 33,600/=. The agreement provided that the balance was payable upon execution of the transfer after completion of the succession cause.
(iii) The agreement further provided, at clause 4 thereof, that in the event of default by the vendor, the vendor was to refund all monies paid plus 25% as damages.
(iv) The succession cause was completed between 2017 and 2018, whereupon the 1st Respondent was registered as proprietor of LR No. NGANDORI/KIRIGI/10482. Instead of transferring the agreed 1/2 acre to the Appellant, the 1st Respondent transferred the land to the 2nd Respondent, his biological son.
(v) The parties never sought or obtained consent of the Land Control Board in respect of the transaction.
(vi) While the suit was pending in the lower court, the 1st Respondent refunded to the Appellant the sum of Kshs. 91,400/=, which the Appellant admitted receiving.
ISSUES FOR DETERMINATION
7. From the pleadings, the evidence and the submissions of counsel, the following issues arise for determination:
(i) Whether the sale agreement was void for want of Land Control Board consent under the Land Control Act, Cap. 302.
(ii) Whether the trial Magistrate erred in finding that both parties had breached the sale agreement.
(iii) Whether the Appellant's acceptance of the refund of Kshs. 91,400/= amounted to a waiver or acquiescence.
(iv) What is the appropriate remedy, including interest?
(v) Whether the 2nd Respondent was properly exonerated.
ANALYSIS AND DETERMINATION
8. Both parties agree that no consent of the Land Control Board (LCB) was sought or obtained in respect of the transaction. Section 6 of the Land Control Act, Cap. 302, Laws of Kenya renders any transaction in agricultural land void unless the prior consent of the Land Control Board has been obtained. Section 7 of the same Act provides that any money paid pursuant to such a void agreement is recoverable as a civil debt.
9. The Respondents rely on this provision to contend that the agreement was void ab initio and that the Appellant's sole remedy is the return of the purchase price. This Court observes, however, that the voiding effect of Section 6 of the Land Control Act has been consistently applied by the courts as a shield against the enforcement of the agreement by way of specific performance, not as a licence for a party who has received money and then deliberately frustrated the transaction to retain a windfall. See: Mwangi v Gachoka [2006] eKLR; and the general principle that a party cannot benefit from their own wrong.
10. More critically, it is the 1st Respondent himself who had the primary obligation, as the vendor of agricultural land, to seek LCB consent. His failure to do so cannot now be weaponised to extinguish the Appellant's rights entirely. The Court of Appeal in Samuel Kamau Macharia v Kenya Commercial Bank Ltd & 2 Others [2010] eKLR reaffirmed that courts must not allow procedural or statutory provisions to be used to work injustice.
11. The practical consequence is therefore that: (a) specific performance of the sale agreement cannot be ordered since the agreement is, without LCB consent, void; and (b) the Appellant is entitled to recover all monies paid, with appropriate compensation for the prolonged deprivation of her funds.
12. The trial Magistrate found that 'both the plaintiff and the defendant breached the contract.' With respect, this finding is not supported by the evidence. The Appellant paid Kshs. 91,400/= and the agreement itself stipulated that the balance was payable upon execution of the transfer after completion of the succession cause. The succession was completed in 2017/2018. Before the Appellant could tender the balance, the 1st Respondent had already transferred the suit land to the 2nd Respondent, thereby rendering performance by the Appellant impossible.
13. The 1st Respondent's own failure to seek LCB consent was not attributable to the Appellant. In Pertetua Atieno Milimu v Louis Onyango Otieno [2013] eKLR, the court held that where a vendor receives purchase money and then deals with property in a manner that defeats the purchaser's interest, the vendor cannot plead the purchaser's failure to pay the balance as a defence, particularly where the balance was not yet due.
14. This Court accordingly finds that the trial Magistrate erred in holding that the Appellant was in breach. It was the 1st Respondent alone who breached the agreement by transferring the suit property to the 2nd Respondent without fulfilling his obligations to the Appellant.
15. The trial Magistrate reasoned that since the Appellant accepted the refund of Kshs. 91,400/=, she 'inadvertently acquiesced to the defendant's conduct.' This Court disagrees. The refund was made unilaterally by the 1st Respondent while the suit was already pending before the lower court. There is no evidence that the Appellant received the refund in full and final settlement of her claim or that she executed any discharge or release.
16. A party receiving part payment in the course of ongoing litigation does not, by that act alone, waive her right to pursue the full claim before the court. To hold otherwise would allow defendants to extinguish valid claims by making unilateral, partial refunds mid-litigation. See: Saving and Loan Kenya Limited v Mayfair Holdings Limited [2012] KLR. The trial Magistrate's reliance on this partial refund as constituting acquiescence is therefore erroneous.
17. Since specific performance cannot be granted given the absence of LCB consent and the fact that the property is now registered in the name of the 2nd Respondent, the Appellant's appropriate remedy lies in damages and recovery of the purchase price.
18. The Appellant paid Kshs. 91,400/= in 2002 and has been deprived of the use of those funds for over 22 years. She has already received the refund of Kshs. 91,400/= and the sum of Kshs. 22,850/= (being 25% thereof) pursuant to the trial court's order. The remaining question is whether she is entitled to further interest and from what date.
19. Section 26 of the Civil Procedure Act, Cap. 21, confers a discretion on the court to award interest at such rate as it thinks fit on the principal sum found due, from the date of the suit to the date of the decree. In Madhu Mohan t/a Gusii Highlights High School v Eliza Kwamboka Nyamache [2015] eKLR the court affirmed that interest should be awarded so as to compensate the claimant for the time value of money wrongly withheld.
20. In the circumstances, this Court finds that the Appellant is entitled to interest on the sum of Kshs. 91,400/= at the rate of 14% per annum from the date of filing the suit (26th April 2019) to the date of full payment. The said interest shall be computed on the outstanding principal less any sums already paid by the Respondent (including the Kshs. 91,400/= refunded and the Kshs. 22,850/= awarded below). The trial Magistrate's direction that interest runs only from the date of judgment was therefore in error and is hereby varied.
21. The 2nd Respondent, Moses Kariuki Gicovi, was not a party to the sale agreement. He received the suit property from his father, the 1st Respondent, during the succession process. However, the evidence on record, particularly the sequence of events, discloses a cogent inference that the transfer of the land to the 2nd Respondent was effected by the 1st Respondent with the deliberate object of defeating the Appellant's claim. The 2nd Respondent admitted knowledge of the sale agreement in cross-examination.
22. The 1st Respondent cannot escape his contractual obligations by the simple expedient of transferring the subject land to his own son. That said, since specific performance cannot be granted in this appeal and the remedy granted is monetary, the primary liability falls on the 1st Respondent as the contracting party. The trial Magistrate was not in error in declining to make direct orders against the 2nd Respondent personally in respect of damages, though his joinder was properly necessitated by the fact that the property is registered in his name.
DISPOSITION
23. In the result, this appeal is partially allowed. The Judgment of the trial Magistrate dated 15th July 2025 in Embu CM-ELC No. 31 of 2019 is hereby set aside and substituted with the following Orders:
(i) The 1st Respondent shall pay to the Appellant interest on the principal sum of Kshs. 91,400/= at the rate of 14% per annum calculated from 26th April 2019 (date of filing the suit) to the date of full payment of the total sum outstanding, giving credit for all payments already made including the Kshs. 91,400/= refunded and the Kshs. 22,850/= already awarded and paid.
(ii) The 1st Respondent shall pay to the Appellant the costs of the suit in the lower court and the costs of this appeal.
(iii) Save as aforesaid, the appeal on the ground of specific performance is dismissed given the statutory invalidity of the agreement under the Land Control Act.
24. It is so ordered.
DATED, DELIVERED AND SIGNED AT EMBU THIS 15TH DAY OF JUNE, 2026
HON. E.C CHERONO
ELC JUDGE, EMBU
In the presence of:
1. Mr. Kiplimo C/B Mr. Mugambi Njeru for the Appellant
2. Respondent/Advocate-absent
3. Caty C/A
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