Kipkeu v Suraya Property Group Limited & 2 others (Environment & Land Case 492 of 2018) [2025] KEELC 4776 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Liability for refund of the deposit
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
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.
Re-sale condition as a bar to refund
Rejected; the refund condition tied to re-sale did not apply because nothing had been built to re-sell
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.
Effect of unsigned letters of offer
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
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.
Legal principles established
#- 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
#- 1.Refund of Kshs.9.3 million forthwith
- 2.Kshs.500,000 as general damages for misrepresentation
- 3.Interest on the refund at 20% from date of filing of suit until payment in full
- 4.Interest on the damages at court rates from the date of judgment until payment in full
- 5.Costs of the suit
- Jurisdiction invoked
- Original civil jurisdiction of the High Court over contract and tort claims; no specific constitutional provision cited
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.