Serem & 3 others (Suing as Personal Representatives of the Estate of the Late Michael Kibet arap Serem) v Ndiwa (Environment & Land Case 42 of 2020) [2025] KEELC 4416 (KLR)
The bottom line
#A Kenyan land buyer who didn't pay lost the land anyway: the court evicted him and let the seller keep 10% of the price.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.If the plaintiffs have locus standi to advance the suit filed by the late Francis Arap Serem as the legal representatives
- 2.If the sale agreement dated 27/2/2013 complied with the law
- 3.If there was a breach of the sale agreement by any of the parties
- 4.If there was a valid variation and revision of the sale agreement
- 5.What were the rights and obligations of the parties after the alleged breach
- 6.If there was representation, promise, and or reliance of any sort by the defendant
- 7.If the sale agreement remains valid and or enforceable
- 8.Whether the plaintiffs are entitled to the reliefs sought
- 9.Whether there is a valid counterclaim to enable the defendant to obtain the reliefs sought
Key legal issues
#Whether the plaintiffs, as personal representatives of the deceased vendor, had locus standi
Yes; the capacity of the plaintiffs was not contested. The defendant consented to their substitution, was supplied with the limited grant ad litem, and described them as children of the deceased in his pleadings, so he could not later challenge their capacity.
The court held that a counterclaim is a stand-alone suit whose success depends on the plaintiffs' capacity to be sued. The defendant was privy to how the plaintiffs were introduced, consented to substitution, and pleaded them as children of the deceased. Admission of facts may be by pleadings or otherwise, and once admitted no further proof is needed. Not producing the grant caused no discernible prejudice; a court deals with real disputes, not academic pursuits.
Whether there was a valid oral variation of the sale agreement excusing the defendant's default
No. The sale agreement was complete and unambiguous, and any variation of fundamental terms (acreage, consideration, completion date) required a written supplementary agreement. The parole evidence rule barred the alleged oral variation.
Clause 4.1 was a disclaimer confirming the defendant viewed and accepted the property's condition. The letter of 24/12/2013 did not raise acreage or seek adjustment of consideration, but offered to complete the agreement as written. The survey report was dated 2020, was unscientific, and its maker was not called. Extrinsic evidence cannot vary an unambiguous written contract.
Which party breached the sale agreement and whether the rescission was valid
The defendant breached by failing to pay the installments and balance by the completion date of 31/12/2013; the vendor's rescission via the notice of 19/12/2017, served by registered post to the defendant's stated address, was justified.
The defendant paid only Kshs.10,650,000 of Kshs.20,000,000, could not account for alleged payments through former advocates, and gave no completion notice of his own. The vendor's letter of 4/9/2017 revived the agreement by professional undertaking, and the completion and rescission notices, served to the address in the agreement, went unheeded. Failure to remedy default entitled the vendor to rescind under Clause 7.
Whether the defendant could invoke constructive trust and proprietary estoppel to defeat eviction and obtain specific performance
No. The doctrines were not pleaded with particulars, and even if proved would fail since the defendant entered the land irregularly, paid no full consideration, and failed to complete the agreement.
Constructive trust rests on a common intention relied upon by the parties; no such agreement was proved. Possession was to be delivered on the completion date, not March 2013, and developments were never sanctioned. A party seeking specific performance must show willingness and readiness; the defendant refused to complete in 2017, leading to repudiation, and cannot approbate and reprobate.
Whether the sale agreement was void for lack of land control board consent
The court declared the agreement void ab initio for lack of land control board consent, but held the defendant could not benefit from that defect since he too failed to act towards obtaining consent after being notified of title availability.
The defendant was notified through his advocates of the availability of title deeds, acknowledged receipt, and knew the six-month statutory period was running, yet took no step to invoke Section 6 of the Land Control Act. Having contributed to the failure, he could not invoke the lack of consent to escape liability or invoke constructive trust.
Legal principles established
#- Parole evidence may not be introduced to vary, replace, or contradict an unambiguous written sale agreement
- An alleged variation of a sale agreement's core terms requires a written supplementary agreement or formal alteration
- Failure to pay the purchase price by the completion date, coupled with default notices, entitles the vendor to rescind the agreement
- Service by registered post to a party's address as stated in the agreement is properly proved where the certificate of posting is uncontroverted
- Possession in law follows the right to possess until the contrary is proved
Court orders
#- 1.Declaration that the sale agreement dated 27/2/2013 stands rescinded as a result of the defendant's breach
- 2.Declaration that the sale agreement dated 27/2/2013 became void ab initio for lack of a land control board consent
- 3.Declaration that the plaintiffs are entitled to retain 10% of the purchase price as liquidated damages for the pleaded breach
- 4.Mandatory injunction evicting the defendant from the suit parcels of land
- 5.Permanent injunction restraining the defendant from ploughing, cultivating, trespassing, laying claim, or otherwise dealing with the suit property
- 6.OCS Cherangany Police Station to provide security during the eviction
- 7.Costs for both the main plaint and the defense and counterclaim to the plaintiffs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a land sale agreement dispute (suit commenced 16/7/2020); no specific constitutional provision invoked
Relief refused
#General damages for breach of contract / mesne profits for loss of use of the suit property
Omitted from the final orders; the court granted only the declarations, injunctions and eviction-related orders sought by the plaintiffs
The defendant's counterclaim in its entirety (specific performance, refund, survey of acreage, injunction)
Counterclaim lacked a titular heading, special damages were not strictly pleaded and proved, acreage/refund not proved, and the doctrine of constructive trust and proprietary estoppel was neither properly pleaded nor proved
Costs
Costs for both the main plaint and the defense and counterclaim to the plaintiffs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot is that the plaintifis have proved their claim to the required standards to be entitled to:
The amended statement of defense and the counterclaim are found to lack merits, incompetent, both in form and content and therefore unsuitable. Costs for both the main plaint and the defense and counterclaim to the plaintifis.
this court finds that parole evidence may not be introduced to vary, replace, and introduce an unambiguous sale agreement that the parties signed.
The court finds the capacity of the plaintifis not contested, hence the suit is properly before the court.
A court of law cannot rewrite a contract for the parties.
It is inconceivable the defendant would therefore opt to take vacant possession if at all the acreage, and the consideration were in doubt or disputed.
Issues in the judgment
#Internal inconsistency in the date of the deceased's death: the judgment states he 'passed on 2/8/2021' in one passage and 'passed on 2/8/2022' in another
Inconsistent figures for the amount paid by the defendant as of the completion date: the court finds Kshs.10,350,000 in one passage and Kshs.10,650,000 elsewhere, while the defendant pleaded Kshs.13,000,000
Apparent internal tension between the declaration that the sale agreement was rescinded for the defendant's breach and the further declaration that it became void ab initio for lack of land control board consent - both granted in the final orders
Typographical/date errors in the judgment text, e.g. the amended plaint dated 11/5/2023 is referred to in one place as 'dated 11/56/2023' and the case number of the cited appeal is printed inconsistently
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Serem & 3 others (Suing as Personal Representatives of the Estate of the Late Michael Kibet arap Serem) v Ndiwa (Environment & Land Case 42 of 2020) [2025] KEELC 4416 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4416/eng@2025-06-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.