Odhiambo v Machinji (Suing as the Director of Katiti Builders) (Environment and Land Appeal E024 of 2024) [2025] KEELC 3993 (KLR)
The bottom line
#A land buyer who breached the payment timeline lost his claim to keep the property and the value of buildings he had put on it.
What this practically means
#Executive summary
#Key legal issues
#Entitlement to specific performance of the land sale agreement
Specific performance was properly refused because the Appellant was in breach and no valid enforceable agreement capable of such relief existed
The agreement fixed a timeline for payment of the balance by 18th February 2016, which the Appellant failed to meet despite the Respondent's offers to complete upon payment. A party in breach cannot obtain specific performance, an equitable and discretionary remedy, and damages would be an adequate alternative.
Refund of the purchase price and applicable interest
The trial court correctly awarded a refund of Kshs.841,000 with interest from the date of filing the counterclaim
The payments made totalled Kshs.841,000 (Kshs.700,000 on the agreement date, Kshs.91,000 admitted on cross-examination and Kshs.50,000 via Mpesa). Since the full sum was not paid on the date of the agreement and the breach was the Appellant's, interest did not run from October 2015.
Value of the Appellant's developments on the land
No award of the value of developments was warranted
The Appellant did not plead the amount of the value of the developments, and having breached the agreement he continued to develop the land instead of paying the balance. The loss of the improvements was a consequence of his own breach.
Costs
The order that each party bear its own costs was proper as each party partly succeeded and partly lost
Section 27 of the Civil Procedure Act provides that costs follow the event, but the court has discretion. Both parties lost part of their claims, and the Appellant's persistent breach justified the trial court's order.
Legal principles established
#- On a first appeal the appellate court must reconsider and re-evaluate the whole evidence and arrive at its own independent conclusion, while bearing in mind it did not see or hear the witnesses.
- Specific performance is discretionary and will not be granted where the contract is unenforceable or the party seeking it is in breach.
- Under section 27 of the Civil Procedure Act costs follow the event, but the court retains discretion in special circumstances.
Court orders
#- 1.Appeal dismissed with costs to the Respondent
- 2.Affirming the trial court's order of eviction of the Appellant from the suit land
- 3.Affirming the refund of Kshs.841,000/- plus interest from the date of filing the counterclaim
- 4.Each party to bear own costs in the trial court
- On appeal from
- Maseno Senior Principal Magistrate's Court
- MCELC No. E005 of 2022
- Jurisdiction invoked
- First appeal from the magistrates' court (Environment and Land Court appellate jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Odhiambo v Machinji (Suing as the Director of Katiti Builders) (Environment and Land Appeal E024 of 2024) [2025] KEELC 3993 (KLR)", Case Analysis (2025). Kisumu Environment and Land Court Appeal (from Maseno SPMC MCELC No. E005 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3993/eng@2025-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.