Rimber v Unifresh Exotics (K) Limited (Environment and Land Case 427 of 2017) [2025] KEELC 4917 (KLR)
The bottom line
#A Kenyan court cancelled a land sale and let the seller keep all the money paid because the buyer failed to pay the full price.
What this practically means
#Executive summary
#Key legal issues
#Breach of the sale and supplemental agreements
The defendant breached both agreements by failing to pay the full purchase price of Kshs.10,744,500, having paid only Kshs.6,250,000 by the extended completion date of 31st December 2016.
The principal agreement dated 14th May 2015 was binding, fixing the purchase price at Kshs.10,744,500 payable by instalments ending 30th November 2015. The defendant paid only Kshs.6,250,000, an amount the plaintiff admitted. The execution of a supplemental agreement extending completion to 31st December 2016 demonstrated the defendant's earlier default. Even after extension, payment was not completed, and the defendant did not deny non-payment. This constituted a clear breach of both agreements.
Alleged frustration of contract by the plaintiff
The claim of frustration failed for want of proof; the defendant produced no evidence of the alleged LCB consent refusal, fresh price demands, or refusal to collect cheques.
The defendant alleged that the plaintiff frustrated the contract by failing to obtain Land Control Board consent, demanding a higher price and refusing to collect cheques. However, no witness or evidence was produced to substantiate these claims. Applying the rule that he who alleges must prove, and authority that unproved defence allegations are mere allegations, the court rejected the frustration defence, noting also that frustration must arise without the fault of either party.
Entitlement to possession, mesne profits, forfeiture and damages
Immediate vacant possession and forfeiture of all monies paid (Kshs.6,250,000) were granted, but mesne profits and damages were refused.
Having found breach, the court granted immediate vacant possession under Order 21 Rule 13 of the Civil Procedure Rules. Clause 3.4 of the supplemental agreement replaced clause 7.1 of the principal agreement, providing for forfeiture of all monies paid upon default, justifying prayer (d). Mesne profits failed because PW1's report was based on a wrong acreage (200 acres instead of 71) and could not establish the loss. Damages failed because special damages were not specifically pleaded and general damages are unavailable for breach of contract.
Legal principles established
#- A party alleging frustration of contract must prove it; frustrating circumstances must arise without the fault of either party and must not be self-induced.
- Where a defendant does not adduce evidence, its allegations in the defence remain mere allegations and the plaintiff's uncontroverted evidence is to be believed.
- Special damages must be specifically pleaded before they can be awarded, and no general damages may be awarded for breach of contract.
- Costs follow the event unless there is good reason to depart from that rule (Section 27, Civil Procedure Act).
Court orders
#- 1.Judgment entered for the plaintiff against the defendant.
- 2.Prayers (a), (b), (d) and (f) of the amended plaint dated 5th March 2021 are granted (declaration of rescission and wrongful possession, immediate possession with crops and improvements, forfeiture of monies paid, and costs).
- 3.The rest of the prayers (mesne profits and damages for breach) are dismissed.
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a dispute relating to land in Kwale County
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rimber v Unifresh Exotics (K) Limited (Environment and Land Case 427 of 2017) [2025] KEELC 4917 (KLR)", Case Analysis (2025). ELC Case of Mombasa (amended plaint dated 5th March 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4917/eng@2025-07-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.