Gichuhi & another v Kilundo (Environment and Land Appeal E005 of 2023) [2024] KEELC 1272 (KLR)
The bottom line
#The Environment and Land Court in Machakos confirmed that a land sale agreement cannot be cancelled for 'pressure' without solid evidence, and ordered the apartment transferred to the buyer.
What this practically means
#Executive summary
#Key legal issues
#Whether the appeal was filed out of time without leave
Leave to file out of time was granted on 30th January 2023 and the appeal filed on 6th February 2023 was within the extended period
Under Section 79G and Order 50 Rule 4, the 30-day period expired on 31st January 2023 after excluding the court vacation. The appellants obtained 7 days' leave on 30th January 2023 in ELC Misc. Application No. E006 of 2023, and the appeal filed on 6th February 2023 fell on the last day of that leave. The respondent did not challenge that order.
Whether the agreement of 7th November 2019 was vitiated by duress
No duress was proved; the appellants failed to establish the alleged loan from, or threats by, Purity Mukami Njuki
The appellants bore the burden under Section 107 of the Evidence Act. They produced no evidence of the loan, demands, or threats, and no expert evidence of forgery. Their account was materially inconsistent: they denied any exchange of money yet the 2nd appellant admitted receiving Kshs. 300,000/-. Their failure to seek legal advice for over a year undermined the duress claim.
Whether specific performance was available to the respondent
Yes; the respondent paid the full purchase price, complied with the agreement, and damages were inadequate given possession
Specific performance is discretionary and equitable, granted where damages are inadequate. The respondent paid the entire consideration and was in possession. The purported rescission of 5th January 2021 failed to comply with paragraph 14 of the agreement as no completion notice had issued, and no debit of refund cheques was proved. The appellants, as equitable owners who sold the property, were bound to transfer what they had.
Legal principles established
#- The burden of proving duress lies on the party alleging it, and allegations must be supported by evidence
- Submissions cannot be a platform for introducing new evidence not raised in pleadings or evidence
- Specific performance can issue against a beneficial/equitable owner, not only a registered owner
- A first appellate court must re-evaluate the evidence and make its own findings while allowing for lack of opportunity to see or hear witnesses
Court orders
#- 1.The appeal is dismissed with costs
- 2.The judgment of the trial court dismissing the appellants' counterclaim and allowing the respondent's claim (specific performance and permanent injunction) is upheld
- On appeal from
- Principal Magistrate's Court, Machakos (Environment and Land Court)
- ELC Case No. 4 of 2021
- Jurisdiction invoked
- First appellate jurisdiction under Section 79G of the Civil Procedure Act (appeal from subordinate court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gichuhi & another v Kilundo (Environment and Land Appeal E005 of 2023) [2024] KEELC 1272 (KLR)", Case Analysis (2024). Machakos Environment and Land Court Appeal No. of 2023 (ELC Appeal arising from Machakos PM ELC Case No. 4 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1272/eng@2024-03-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.