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ELCPartially AllowedNot stated in the judgment (first-instance suit)· [2025] KEELC 4776 (KLR)

Kipkeu v Suraya Property Group Limited & 2 others (Environment & Land Case 492 of 2018) [2025] KEELC 4776 (KLR)

Environment and Land Court / High Court of Kenya at Nairobi
19 June 2025
1,791 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Nairobi court ordered developers to refund Kshs.9.3 million plus damages and 20% interest because they never built the apartments a buyer paid for.

What this practically means

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Executive summary

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The plaintiff sued three defendants for refund of a deposit of Kshs.9.3 million paid towards the purchase of two apartments (a 2-bedroom and a 3-bedroom unit) in an uncompleted project on L.R No. 209/7733 along Muchai Drive, plus general damages for breach of contract and fraudulent misrepresentation, interest and costs. The letters of offer dated 3rd August 2016 were unsigned by the defendants, who admitted receiving the payments. The defendants resisted the claim, contending the plaintiff defaulted on instalments and that any refund was conditioned on re-sale of the units, which had not occurred. Only the plaintiff testified; she produced the letters of offer and receipts and gave uncontroverted evidence that no construction had commenced even eight years after payment. Applying Odunga J's holding in Linus Nganga Kiongo on a party that fails to call evidence, the court held the claim proved. It rejected the re-sale condition as bad faith, asking how one re-sells what has not been built. Finding the unsigned letters and the defendants' advertising posters constituted a misrepresentation, the court awarded Kshs.500,000 in general damages. Judgment was entered against the defendants jointly and severally: refund of Kshs.9.3 million forthwith, Kshs.500,000 general damages, interest on the refund at 20% from the date of filing suit, interest on the damages at court rates from judgment, and costs of the suit.

Key legal issues

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01

Liability for refund of the deposit

Holding

The claim was proved; the project never commenced and the defendants did not controvert the evidence, so refund of Kshs.9.3 million was ordered

Reasoning

The plaintiff produced letters of offer and receipts totalling Kshs.9.3 million. The defendants admitted receiving the payment and admitted the construction was incomplete. The plaintiff's uncontroverted evidence was that no construction had taken place even eight years after payment. The court adopted Odunga J's reasoning in Linus Ng'ang'a Kiongo on failure to call evidence.

p. 4
02

Re-sale condition as a bar to refund

Holding

Rejected; the refund condition tied to re-sale did not apply because nothing had been built to re-sell

Reasoning

The defendants argued the refund clause required re-sale of the units. The court held this was bad faith since the project had not even commenced construction, so there was nothing to re-sell. The court rhetorically asked how one re-sells what has not been built.

p. 4
03

Effect of unsigned letters of offer

Holding

The letters of offer, though unsigned by the defendants, appeared on their face to have been prepared by them and, with the defendants' advertisements, evidenced a representation that grounded liability

Reasoning

The court found the defendants never denied preparing the unsigned letters. Together with advertising posters, they induced the plaintiff's payments. The failure to complete construction rendered the representation actionable and justified general damages of Kshs.500,000.

p. 4

Legal principles established

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  • A party who fails to call evidence leaves its pleadings as mere statements of fact not substantiated
  • Not all agreements must be in writing; only specific agreements require a written note or memorandum under section 3(1) of the Law of Contract Act

Court orders

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  1. 1.Refund of Kshs.9.3 million forthwith
  2. 2.Kshs.500,000 as general damages for misrepresentation
  3. 3.Interest on the refund at 20% from date of filing of suit until payment in full
  4. 4.Interest on the damages at court rates from the date of judgment until payment in full
  5. 5.Costs of the suit

Authorities

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Legislation

  • Law of Contract ActSection 3(1)
  • Civil Procedure RulesOrder 7 rule 5

Cases cited (2)

  • Abdulkadir Sharifi Abdirahim & Another vs Awo Sharifi Mohamed
    NBI Civil Appeal No. 1 of 2008
  • Linus Nganga Kiongo & 3 Others Vs Town Council of Kikuyu
    NBI HCC No. 79 of 2011
Jurisdiction invoked
Original civil jurisdiction of the High Court over contract and tort claims; no specific constitutional provision cited

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, "Kipkeu v Suraya Property Group Limited & 2 others (Environment & Land Case 492 of 2018) [2025] KEELC 4776 (KLR)", Case Analysis (2025). Not stated in the judgment (first-instance suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4776/eng@2025-06-19

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