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ELCPartially AllowedELC Case No. 211 of 2011 (Lead File) consolidated with ELC Case No. 156 of 2018· [2025] KEELC 2919 (KLR)

Lakeview Investment Limited v Ndege & 2 others (Environment and Land Case Civil Suit 211 of 2011 & Environment & Land Case 156 of 2018 (Consolidated)) [2025] KEELC 2919 (KLR)

Environment and Land Court
27 March 2025
5,928 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Environment and Land Court upheld a registered landowner's title, refused specific performance where the buyer breached the sale contract, and limited the refund to what was actually proved.

What this practically means

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Executive summary

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This judgment determines two consolidated Environment and Land Court suits concerning LR No. 25692 (referred to variously as 25693) at Mavoko, Machakos County. The Plaintiff in the lead suit (ELC 211 of 2011) claimed it purchased the land from the 1st and 2nd Defendants under sale agreements dated 16th November 2009 and 22nd January 2010, paid more than the agreed Kshs.5.6 million, and sought specific performance, cancellation of the 3rd Defendant's title and damages. The 3rd Defendant, Lakeview Investment Limited, in ELC 156 of 2018 claimed it bought 80 plots from the Plaintiff for Kshs.7 million, later purchased the entire land directly from the 1st Defendant by agreement dated 16th December 2010, obtained title in 2012, and sought eviction, refund of Kshs.7 million and damages. The court held that all parties breached the 22nd January 2010 agreement: the completion notice was premature, no variation was proved in writing, and the Plaintiff subdivided and sold plots while holding only a Letter of Allotment, which conferred no transferable interest. Specific performance was refused. The 3rd Defendant lawfully acquired the land from the registered owner, and its title was upheld as absolute and indefeasible under Section 26 of the Land Registration Act. ELC 211 of 2011 was dismissed with no order as to costs; the refund claim in that suit was not granted as it was not pleaded, with liberty to file a fresh claim. ELC 156 of 2018 succeeded in part: injunction, eviction within 90 days with demolition of illegal structures, refund of Kshs.2,650,000/= only, police enforcement, and costs against the 1st and 2nd Defendants.

Key legal issues

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01

Whether the Plaintiff in ELC 211 of 2011 was entitled to specific performance of the Sale Agreement dated 22nd January 2010

Holding

No. All parties breached the agreement; the Plaintiff failed to complete within the 180-day period, issued a premature completion notice, and subdivided and sold plots without title. Its only contractual remedy was rescission and refund of deposit, and it did not seek a refund in its pleadings.

Reasoning

Clause 4 required simultaneous delivery of completion documents and balance of purchase price within 180 days; Clause 7 made time of the essence. The completion notice dated 21st June 2010 was premature, yet the Plaintiff paid more monies in August 2010, which the court held was not a waiver since Clause 15 provided that delay did not constitute waiver. Both sides breached; the equitable remedy of specific performance is discretionary and was refused. Refund was refused because it was not pleaded.

p. 8
02

Whether the 3rd Defendant is the lawful proprietor of LR No. 25692

Holding

Yes. It purchased the whole suit land from the 1st Defendant (the registered owner) on 16th December 2010, after the lapse of the Plaintiff's completion period, paid the full purchase price and was transferred the land in May 2012; its title is upheld under Section 26 of the Land Registration Act.

Reasoning

The Plaintiff's Memorandum of Understanding with the 3rd Defendant did not bar the sale because the Plaintiff had no title or transferable interest, holding only a Letter of Allotment. The 3rd Defendant, though it failed in due diligence, proved legal acquisition from the registered owner. The certificate of title is prima facie evidence of absolute and indefeasible ownership not challenged on any recognised ground.

p. 10
03

Whether the Plaintiff in ELC 156 of 2018 (3rd Defendant) was entitled to eviction, refund, mesne profits and damages

Holding

Entitled to injunction, eviction with demolition of illegal structures within 90 days, and refund of Kshs.2,650,000/= only; mesne profits, general damages and the balance of Kshs.7 million refund claim failed for want of proof.

Reasoning

PW1 admitted receipt of only Kshs.2,650,000/=; the burden of proving the remaining payments rested on the 3rd Defendant and was not discharged. No evidence was tendered to prove the claims for damages and mesne profits. The Plaintiff in the lead suit was to surrender vacant possession of the three acres it occupied or be evicted.

p. 9

Legal principles established

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  • A court cannot re-write a contract between the parties; parties are bound by the terms of their contract unless coercion, fraud or undue influence are pleaded and proved
  • A party seeking specific performance must show it has performed all its own obligations under the contract
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud, misrepresentation, illegality, unprocedural acquisition or corruption (Section 26, Land Registration Act)
  • A letter of allotment without more confers no transferable interest in land
  • Parties are bound by their pleadings; evidence at variance with the pleadings must be disregarded

Court orders

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  1. 1.An injunction restraining the defendant (Lakeview Investment Limited), its servants or agents from trespassing, entering, remaining, fencing, selling, offering for sale, transferring, charging and/or in any way whatsoever interfering with the Plaintiff's quiet enjoyment of property LR No.25692 – Mavoko Municipality
  2. 2.An eviction order against the defendant (Lakeview Investment Limited) and its agents including demolition of the illegal structures on property LR No. 25692 – Mavoko Municipality in 90 days
  3. 3.The Defendant (Lakeview Investment Limited) to refund Kshs. 2,650,000/= to the Plaintiff
  4. 4.The officer commanding Mlolongo Police Station to enforce orders i and ii
  5. 5.Costs of the suit awarded to the Plaintiff, to be borne by the 1st and 2nd Defendants (Jennifer Waithira Ndege and Manwah Bwosiemo Magara)
  6. 6.ELC 211 of 2011 dismissed with no order as to costs
  7. 7.The Plaintiff in ELC 211 of 2011 directed to file a fresh claim in respect of refund of the purchase price, as refund was not sought in the pleadings

Authorities

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Legislation

  • Land Registration ActSections 25 and 26(1)

Cases cited (10)

  • Carol Silcock v Kassim Sharifi Mohamed
    [2013] eKLR
  • Anne Njeri Mwangi v The Co-operative Bank of Kenya
    [2013] eKLR
  • Raila Amolo Odinga & Another v IEBC & 2 Others
    [2017] eKLR
  • Independent Electoral and Boundies Commission & Anor v Stephen Mutinda Mule & 3 Others
    [2014] eKLR
  • National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another
    [2001] eKLR
  • Christine Nyanchama Oanda v Catholic Diocese of Homa Bay Registered Trustees
    [2020] eKLR
  • Reliable Electrical Engineers (K) Ltd v Mantrac Kenya Limited
    [2006] eKLR
  • Torino Enterprises Limited v Attorney General
    (Petition 5 (E006) of 2022) [2023] KESC 79 (KLR)
  • Dr. Joseph Arap Ngok v Justice Moijo Ole Keiwua & 5 Others
    Nai. Civil Appeal No. 60 of 1997
  • Adetonn Oladeji (NIG) Ltd v Nigeria Breweries PLC
    S.C. 91/2002
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (consolidated suits heard and determined in the first instance)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Lakeview Investment Limited v Ndege & 2 others (Environment and Land Case Civil Suit 211 of 2011 & Environment & Land Case 156 of 2018 (Consolidated)) [2025] KEELC 2919 (KLR)", Case Analysis (2025). ELC Case No. 211 of 2011 (Lead File) consolidated with ELC Case No. 156 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/2919/eng@2025-03-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.