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ELCPartially AllowedNot stated in the judgment (arising out of Thika CMCC No. 636 of 2015)· [2025] KEELC 3491 (KLR)

Gakuru v Henwa Investments Limited (Environment and Land Appeal E003 of 2021) [2025] KEELC 3491 (KLR)

Environment and Land Court of Kenya (statutory appeal from subordinate court)
29 April 2025
2,696 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan land buyer who won in court but couldn't get titles won again on appeal, getting market-value compensation and full legal costs instead.

What this practically means

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Executive summary

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The Appellant appealed against the judgment of Senior Resident Magistrate V. Kachuodho delivered on 14th December 2020 in Thika CMCC No. 636 of 2015, in which she had succeeded on a balance of probabilities and obtained an order of specific performance of an agreement for sale dated 22nd December 2009 over plots later converted to plots 1, 2 and 3 Githima/munyuon Parcel Number 1272 Thika Municipality, with each party bearing its own costs. The Respondent, served by substituted service, did not participate in the appeal. The Appellant contended that the Respondent had admitted inability to process and transfer individual titles because the County Government had ceased processing title deeds for 40 by 80 feet parcels, rendering specific performance futile, and that she was wrongly denied costs. The court, sitting as a first appellate court and applying Selle v Associated Motor Boat Co. and Mbogo v Shah, held that specific performance could not stand where the Respondent conceded impossibility of performance, and that the trial court gave no reason for departing from the rule that costs follow the event under Section 27(1) of the Civil Procedure Act. However, the claim for a refund of Kshs 300,000 plus 25% failed as uncorroborated, the agreement evidencing consideration of Kshs 180,000, and market-value compensation required assessment by a government valuer. The appeal was allowed, the lower court's judgment set aside, and compensation at current market value, refund of beacon and demarcation expenses, and costs of both the trial and the appeal were awarded to the Appellant.

Key legal issues

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01

Whether specific performance could stand where the Respondent admitted inability to transfer titles

Holding

The order of specific performance was legally untenable and had to be set aside because the Respondent conceded it could not deliver the contractual obligation

Reasoning

Equity does not compel the impossible. The Respondent testified that the County Government had ceased processing title deeds for 40 by 80 feet parcels, conceding that the core obligation was beyond its power. Granting specific performance in those circumstances enforces a remedy whose efficacy depends on feasibility and would elevate form over substance. Clause 8's penalty fallback does not cure this defect.

p. 3
02

Whether the trial court erred in denying the Appellant costs

Holding

The trial court erred; costs follow the event and no compelling reason justified the departure, so costs of the suit were awarded to the Appellant

Reasoning

Under Section 27(1) of the Civil Procedure Act costs follow the event unless the court directs otherwise for good reason. The trial court found the Appellant had proved her case on a balance of probabilities but gave no explanation for denying costs. The appellate court found no compelling reason to deny the successful party her costs.

p. 5
03

Whether the Appellant was entitled to compensation at market value or the refund of Kshs 300,000 plus 25%

Holding

Compensation at current market value was granted but only as assessed by a government valuer; the claim for Kshs 300,000 plus Kshs 75,000 failed as uncorroborated

Reasoning

Reliefs must rest on law and evidence. Without an independent valuation report, a market-value award could not be enforced, so assessment by a government valuer was ordered. The contract evidenced consideration of Kshs 180,000, not Kshs 300,000, so the larger refund claim was unsubstantiated and failed to that extent.

p. 5

Legal principles established

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  • Specific performance is a discretionary equitable remedy that will not be ordered where performance is impossible or where damages would be an adequate alternative remedy
  • On a first appeal the court re-evaluates the evidence and draws its own conclusions while making due allowance for the trial court's advantage of observing witnesses
  • An appellate court will not interfere with judicial discretion unless it is shown the decision was clearly wrong, based on misdirection or failure to consider relevant matters
  • Costs follow the event under Section 27(1) of the Civil Procedure Act unless the court gives good reason to direct otherwise, and a departure from that rule must be explained

Court orders

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  1. 1.The appeal succeeds and is allowed
  2. 2.The judgment of the lower court is set aside
  3. 3.The Respondent shall pay to the Appellant monetary compensation equivalent to the current market value of the three plots, to be assessed by a government valuer
  4. 4.The Respondent shall refund all sums expended by the Appellant in the demarcation and establishment of beacons on the suit property, subject to proof by receipts or other admissible evidence
  5. 5.The costs of both the trial and the appeal are awarded to the Appellant; the trial court's order that each party bear its own costs is vacated

Authorities

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Legislation

  • Civil Procedure ActSection 27(1)

Cases cited (3)

  • Selle & Another v. Associated Motor Boat Co. Ltd & Others
    [1968] EA 123
  • Reliable Electrical Engineers (K) Ltd v Mantrac Kenya Limited
    [2006] eKLR
  • Mbogo and another v Shah
    [1968] EA 93
On appeal from
Senior Resident Magistrate's Court, Thika
Thika CMCC No. 636 of 2015
Jurisdiction invoked
First appellate jurisdiction over the subordinate court's judgment (appeal against the judgment in Thika CMCC No. 636 of 2015)

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, "Gakuru v Henwa Investments Limited (Environment and Land Appeal E003 of 2021) [2025] KEELC 3491 (KLR)", Case Analysis (2025). Not stated in the judgment (arising out of Thika CMCC No. 636 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3491/eng@2025-04-29

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