Taibjee & another v Kanabar & another; Kanabar & 6 others (Counter Claimers) (Environment and Land Case 154 of 2019) [2025] KEELC 3374 (KLR)
The bottom line
#Kenya's Environment and Land Court ordered a vendor to refund KES 128 million to buyers, but refused to force transfer of land already sold by a bank holding a charge.
What this practically means
#Executive summary
#Key legal issues
#Validity and binding nature of the sale agreement dated 14th July 2016
A lawful and binding contract existed between the Plaintiffs and the 1st Defendant
All essential ingredients of a contract existed: offer by the 1st Defendant to sell, acceptance by the Plaintiffs, agreement on consideration of Kshs. 128,000,000 (Kshs. 28,000,000 deposit and Kshs. 100,000,000 by surrender of the Pili Pili property). The parties acted at arm's length and exercised freedom of contract. The agreement captured the true intention of the parties and binds them inter partes.
Alleged fraud, misrepresentation and breach of professional duty by the Plaintiffs-advocates
Not established; the 1st Defendant executed the agreement voluntarily and with full knowledge
The 1st Defendant was an adult of sound mind with the right to choose counsel and could have sought a second legal opinion or refused to sign. He did neither. Fraud must be pleaded with particularity and proved to a standard beyond the balance of probabilities; the court cannot rewrite a contract absent proven coercion, fraud or undue influence. His own witness evidence confirmed the agreement was entered freely.
Breach of the sale agreement
The 1st Defendant breached the agreement
The 1st Defendant covenanted to discharge the property and hand over completion documents, but failed to obtain the chargee's consent and never transferred the property. The chargee's rights were superior; a charged property could not be dealt with without consent under Sections 87 and 88(g) of the Land Act. The property was ultimately sold by the Bank in exercise of its statutory power of sale.
Claim against the 2nd Defendant (Bank)
Misconceived; no reasonable cause of action against the Bank
The sale agreement was unenforceable against the chargee absent consent; the Bank was not party to the agreement (privity of contract); specific performance cannot issue over property already alienated; no instructions were given to the Bank regarding the Kshs. 28,000,000 remittance, defeating the legitimate expectation and refund claims.
Counterclaims by the 2nd to 7th Counter-Claimers
Struck out as incompetent, unverified and unauthorised
Only a defendant impleaded in a suit may counterclaim under Order 7 Rule 3; the 2nd to 7th Counter-Claimers were never defendants. The counterclaim lacked the requisite verifying affidavits, board resolutions for the corporate counter-claimers, and authority from DW1. No evidence was tendered on their behalf proving their claims.
1st Defendant's counterclaim
Dismissed as incompetently framed and unproved
The verifying affidavit referred to a Plaint rather than the counterclaim. The 1st Defendant was not privy to the 2014 Pili Pili agreement (privity); possession of House No. 12 was consensual under Clause D(d), defeating the mesne profits claim, which was also unpleaded and unparticularised; aggravated and punitive damages thresholds were not met; his own evidence confirmed payment of the purchase price and free entry into the agreement.
Legal principles established
#- A sale of charged property without the prior written consent of the chargee is unenforceable as against the chargee
- Only a party impleaded as a defendant in a suit may file a counterclaim
- A counterclaim must be supported by a verifying affidavit as required by Order 7 Rule 5 and Order 4 Rule 1(2) of the Civil Procedure Rules
- Fraud must be specifically pleaded and proved to a standard higher than balance of probabilities
- A claim for mesne profits, being akin to special damages, must be pleaded, particularised and strictly proved
Court orders
#- 1.The Plaintiffs shall be refunded the sum of Kshs. 128,000,000/= only by the 1st Defendant
- 2.The Plaintiffs are entitled to refund of Kshs. 2,185,823/= only being the proven special damages on account of service charge, renovations and insurance
- 3.The awards to attract interest at Court rates (14%) from the date of filing suit until payment in full
- 4.The Claim for Specific Performance is Dismissed
- 5.The Claim for General Damages for breach of contract is Dismissed
- 6.The claim for Permanent Injunction is Dismissed
- 7.The Plaintiffs are awarded Costs of the suit against the 1st Defendant
- 8.The Plaintiffs' suit as against the 2nd Defendant is Dismissed
- 9.The Plaintiffs shall pay the 2nd Defendant's Costs of the suit
- 10.The Counter-claim by the 1st Defendant/Counter-claimer is Dismissed
- 11.The 1st Defendant/Counter-claimer shall pay Costs of his Counter-claim to the Plaintiffs
- 12.The Counter-claim by the 2nd - 7th Counter-claimers is Struck out
- 13.The 2nd - 7th Counter-claimers shall pay Costs of the Counter-claim to the Plaintiffs
- 14.Any other relief not expressly provided for is declined
- Jurisdiction invoked
- Original civil jurisdiction (contract and land dispute; no specific constitutional/statutory invocation recorded)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Taibjee & another v Kanabar & another; Kanabar & 6 others (Counter Claimers) (Environment and Land Case 154 of 2019) [2025] KEELC 3374 (KLR)", Case Analysis (2025). Not stated in the extract (Plaint dated 8th May 2019; Amended Plaint dated 17th August 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3374/eng@2025-04-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.