Macho & another v Athuman & 2 others (Civil Appeal E013 of 2022) [2025] KECA 2078 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that buyers who miss payment deadlines cannot force a land sale, and unproven losses earn only token damages.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellants were entitled to an order of specific performance
- 2.Whether the award of general damages for breach of contract was merited
Key legal issues
#Whether the appellants were entitled to specific performance of the sale agreement
No. The appellants failed to pay the balance within 90 days of the Land Control Board consent, the agreement lapsed, and the property had been transferred to third parties; refund was the only effective remedy.
The Court held specific performance is discretionary and equitable, granted only where damages are inadequate and the claimant has performed own obligations. The appellants conceded receipt of the Land Control Board consent in January 2010 but never paid the balance within the contractual 90 days, so the agreement lapsed. Further, the property had passed to the 2nd and 3rd respondents, making performance impossible, and enforcing a 2009 price 16 years later would cause injustice.
Whether the award of general damages of Kshs.4,000,000 was merited
No. The award was set aside and substituted with nominal damages of Kshs.100,000, general damages being unrecoverable in contract and the pleaded loss speculative and unproven.
Restating the settled rule that general damages are not recoverable for breach of contract, the Court noted the appellants' claim of loss of investment and profits was speculative and in substance a plea of special damages requiring proof, which was not led - the valuation report was not even in the record. Relying on Kimakia Co-operative Society, the Court awarded token nominal damages of Kshs.100,000 for the infraction.
The proper remedy upon rescission of a land sale for the purchaser's default
Refund of the purchase price paid, with interest, is the only effective remedy where the contract has lapsed and the property cannot be transferred.
Citing George Njenga Kagai and Syedna, the Court held that where a buyer has paid but cannot complete and the contract is rescinded, the seller must return the money paid. Equity also demands that a vendor who retains the purchase price while selling the property to third parties should not retain the money; hence refund of Kshs.572,000 with interest from 10th July 2009 was affirmed.
Legal principles established
#- General damages are not recoverable in claims of breach of contract; a claimant who has not proved a specific quantified loss is limited to nominal damages
- Specific performance is a discretionary equitable remedy granted only where there is a valid enforceable agreement, where damages are inadequate, and where the claimant comes with clean hands and has performed own obligations
- A purchaser's failure to pay the balance of the purchase price within the contractual period renders the agreement lapsed and incapable of enforcement by specific performance
- Upon rescission for a buyer's default, the seller must return money paid, subject to the intention of the parties
Court orders
#- 1.The award of Kshs.4,000,000 as general damages is set aside
- 2.Substitution therefor of an award of nominal damages in the sum of Kshs.100,000
- 3.The appeal is dismissed
- 4.Each party to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- Environment and Land Court of Kenya at Malindi
- ELC No. 93 of 2015 (Formerly Mombasa ELC No. 77 of 2014)
- Jurisdiction invoked
- First appeal to the Court of Appeal under rule 31(1) of the Court of Appeal Rules, 2022
Relief refused
#Order of specific performance compelling the 1st respondent to transfer the suit property
The appellants breached an essential term by failing to pay the balance of the purchase price timeously, the agreement lapsed, the property had passed to third parties, and damages were an adequate remedy
Revocation of the title issued to the 2nd and 3rd respondents
Not pressed as an issue for determination and the property was no longer capable of transfer by the 1st respondent
General damages of Kshs.4,000,000 (as awarded by the trial court) / claim of Kshs.6,000,000 loss of investment and profits
General damages are not recoverable in breach of contract; the loss claimed was speculative and unproven
Costs
Each party to bear their own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Consequently, the appeal is hereby dismissed. Considering the background and nature of the dispute between the parties, we order that each party bears their own costs.
the appeal has no considerable merit, save for the order of setting aside the award of Kshs.4,000,000 as general damages and substituting therefor an order for an award of nominal damages in the sum of Kshs.100,000.
The trite principle, which is well settled in law, is that general damages are not recoverable in disputes of alleged breach of contract.
The failure to pay the balance of the purchase price within time rendered the agreement of no force and effect, and as a consequence, the agreement lapsed ipso facto.
it is trite that an order of specific performance is an equitable remedy, which is awarded where an award of damages or adequate compensation would not be reasonable.
Issues in the judgment
#The appellants' pleadings are internally inconsistent on the date interest should run on the refund: the plaint seeks interest from 10th July 2019, while the agreement is dated 10th July 2009 and the court awarded interest from 2009.
The trial court is described as having awarded Kshs.4,000,000 as 'special damages' at the outset but the appellate court treats and sets it aside as 'general damages'.
Pagination in the header runs non-sequentially (pages 10-15 recur after page 12 and pages 27-28 repeat), indicating a fragmented record.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Musa v Njine (Suing as the Legal Representative of the Estate of Aloise Simbumbu Murira Igweta – Deceased) (Appeal E005 of 2026) [2026] KEELC 3600 (KLR)[2026] KEELC 3600 (KLR)2 Jun 2026followed
- Wachira v Kibera & 8 others (Environment and Land Case E062 of 2022) [2026] KEELC 2321 (KLR)[2026] KEELC 2321 (KLR)23 Apr 2026
Cite this brief
#Cite this brief
Caselaw, "Macho & another v Athuman & 2 others (Civil Appeal E013 of 2022) [2025] KECA 2078 (KLR)", Case Analysis (2025). Civil Appeal No. E013 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2078/eng@2025-12-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.