Olegasalie New Properties Limited v Lematasho (Environment and Land Appeal E003 of 2022) [2025] KEELC 6465 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled two contradictory land sale agreements showed no real agreement, voiding them but ordering a refund of money and a vehicle paid.
What this practically means
#Executive summary
#Key legal issues
#Formal validity under Section 3(3) of the Law of Contract Act
Both agreements satisfied the formal requirements of Section 3(3) - they were in writing, signed and attested
The court found that both agreements were reduced into writing, bore the parties' signatures and the signatures were attested, so they facially conformed to the statutory formalities. The difficulty lay not in form but in whether they represented a genuine meeting of minds, given the contradictory purchase prices.
Consensus ad idem given two contradictory agreements
The two contradictory agreements on the same transaction with different consideration demonstrated no genuine meeting of minds; the agreements were void ab initio and unenforceable
Agreement on price goes to the root of a sale contract. Two agreements for the same parcel at Kshs. 30,000,000 and Kshs. 24,000,000 could not both represent consensus ad idem. The magistrate erred in enforcing the later agreement without resolving the inconsistency, which went to the root of the contract's validity.
Whether the Appellant was in breach
No breach could be established because there was no enforceable contract capable of being breached; the trial court's finding of breach was legally unsustainable
Breach presupposes enforceability. Having found the agreements void for want of consensus, the court held there was nothing to enforce and correspondingly no breach to adjudicate; the trial court's finding of breach of the 17th September 2014 agreement was erroneous in law and fact.
Duty to give reasons under Article 50(1)
The trial magistrate failed to give adequate reasons, violating the constitutional duty to render a reasoned decision; the appellate court was entitled to intervene
The judgment acknowledged two agreements but proceeded to enforce one without analysis of the contradictions or the statutory requirements, and was bare of reasoning on validity, consensus ad idem or breach, falling short of Article 50(1).
Sustainability of the reliefs granted (refund, damages, costs)
The reliefs of refund, damages and costs had no legal foundation and were set aside, subject to a restitutionary refund to prevent unjust enrichment
Restitution requires proof of unjust enrichment; damages do not lie absent breach of a valid contract; costs follow the event. With no valid contract, none of the trial reliefs was sustainable, but restitution required return of benefits actually transferred - the deposit and the motor vehicle.
Legal principles established
#- A contract for the disposition of an interest in land must be in writing, signed by all parties, with signatures attested by a witness, under Section 3(3) of the Law of Contract Act
- The existence of two contradictory agreements over the same transaction, with materially different consideration, demonstrates lack of consensus ad idem and renders the agreements void and unenforceable
- Breach presupposes the existence of a valid and enforceable contract; a party cannot breach an agreement that does not exist in law
- The right to a fair hearing under Article 50(1) encompasses the right to a reasoned judgment, and failure to give reasons entitles an appellate court to intervene
- Parties must be restored benefits received under a void transaction to prevent unjust enrichment (restitution)
Court orders
#- 1.The appeal is allowed to the extent set out in the judgment
- 2.The judgment and decree of the trial court delivered on 28th December 2021 in Kajiado CMC ELC No. 31 of 2020 are set aside, save to the limited extent provided in the orders
- 3.In the interests of justice and to prevent unjust enrichment, the Appellant shall be refunded, within 90 days, Kshs. 4,550,000/= being the deposit paid towards the aborted transaction, less Kshs. 950,000/= already refunded
- 4.The refund shall be satisfied by payment of Kshs. 2,050,000/= in monetary form and payment of the equivalent of the motor vehicle assessed at Kshs. 2,500,000/=
- 5.Save as provided, the other reliefs granted by the trial court, including general damages and costs, are vacated
- 6.The Appellant shall have the costs of this appeal
- On appeal from
- Chief Magistrate's Court at Kajiado
- Kajiado CM ELC Case No. 31 of 2020
- Jurisdiction invoked
- Appellate jurisdiction over appeals from the Chief Magistrate's Court in land matters
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ikuro & 2 others (Late George Mambo (Deceased)) v Theuri & 6 others; Five Star Construction Company Limited & another (Interested Parties) (Environment and Land Case Civil Suit 36 of 2017 & Commercial Case E188 of 2019 (Consolidated)) [2026] KEELC 2515 (KLR)[2026] KEELC 2515 (KLR)30 Apr 2026applied
- Ong’undi v Odhiambo (Environment and Land Appeal E011 of 2025) [2026] KEELC 472 (KLR)[2026] KEELC 472 (KLR)5 Feb 2026applied
Cite this brief
#Cite this brief
Caselaw, "Olegasalie New Properties Limited v Lematasho (Environment and Land Appeal E003 of 2022) [2025] KEELC 6465 (KLR)", Case Analysis (2025). Kajiado CM ELC Case No. 31 of 2020 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6465/eng@2025-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.