Gakuru v Henwa Investments Limited (Environment and Land Appeal E003 of 2021) [2025] KEELC 3491 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether specific performance could stand where the Respondent admitted inability to transfer titles
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
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.
Whether the trial court erred in denying the Appellant costs
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
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.
Whether the Appellant was entitled to compensation at market value or the refund of Kshs 300,000 plus 25%
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
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.
Legal principles established
#- 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
#- 1.The appeal succeeds and is allowed
- 2.The judgment of the lower court is set aside
- 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.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.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
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.