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ELCPartially AllowedSirisia SPM-ELC Appeal from Case No. 19 of 2020 (memorandum of appeal dated 05/08/2022)· [2025] KEELC 7177 (KLR)

Agostino v Kituyi (Civil Appeal E012 of 2025) [2025] KEELC 7177 (KLR)

Environment and Land Court
25 September 2025
ECE.C. Cherono
2,990 words in judgment
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The bottom line

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Kenya's Environment and Land Court cut a land-sale breach award, ruling general damages cannot be claimed for breach of contract.

What this practically means

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Executive summary

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The appellant, defendant before the trial court (Hon. C.M. Wattimah, Chief Magistrate) in Sirisia SPM-ELC Case No. 19 of 2020, appealed against a judgment of 07/07/2022 awarding the respondent Kshs. 1,200,825/- plus costs. The respondent had sued for specific performance of a sale agreement dated 25/06/2016 over part of Plot No. 39 Cheptais Market for Kshs. 480,000/-, or alternatively a declaration of breach, general damages, refund of the purchase price, 35% penalty and special damages of Kshs. 380,000/-. The appellant denied the agreement as forged and relied on a landlord-tenant relationship and prior BPRT proceedings. On first appeal, E.C. Cherono, ELC Judge, re-evaluated the evidence and held that the written, advocate-attested agreement complied with Section 3(3) of the Law of Contract Act; the forgery allegation failed for want of forensic proof; the BPRT proceedings were irrelevant as that Tribunal's jurisdiction is confined to landlord-tenant disputes; and the appellant breached the contract by refusing possession and transfer. The court accepted the appellant's submission that general damages are not awardable for breach of contract. The appeal partially succeeded: the Kshs. 300,000/- general damages award was set aside, leaving a decretal sum of Kshs. 900,825/-. Each party was ordered to bear their own costs of the appeal.

Key legal issues

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01

Validity of the sale agreement and allegation of forgery

Holding

The written agreement dated 25/06/2016 complied with Section 3(3) of the Law of Contract Act; the fraud allegation was unsubstantiated as no forensic evidence was tendered.

Reasoning

The agreement identified the subject matter, consideration of Kshs. 480,000/- and obligations of each party, was in writing and attested by an advocate, satisfying Section 3(3) of the Law of Contract Act. The appellant's fraud plea, required to be strictly proved under Order 2 Rule 10 of the Civil Procedure Rules, was unsupported by expert evidence and could not displace the attested agreement.

p. 5
02

Breach of the contract

Holding

The appellant breached the vendor's obligations by refusing vacant possession, subdivision and transfer despite full payment, entitling the respondent to a refund of Kshs. 480,000/- and the value of improvements of Kshs. 252,825/-.

Reasoning

Once the purchaser fully performed by paying the consideration, the obligation shifted to the vendor to give possession. The respondent's evidence showed the appellant refused possession or transfer. By retaining both the purchase price and benefit of improvements, the appellant unjustly enriched himself contrary to the contractual terms, which included a 35% penalty clause for breach.

p. 5
03

Award of general damages for breach of contract

Holding

The trial court erred in awarding Kshs. 300,000/- general damages; such damages are not available for breach of contract.

Reasoning

Relying on James Maranya v South Nyanza Sugar Co. Ltd and Consolata Anyango Ouma v South Nyanza Sugar Co. Ltd, the court held that general damages cannot be awarded on a breach of contract claim. Contractual damages follow the Hadley v Baxendale rule and are in the nature of special damages, which must be specifically pleaded and proved.

p. 5
04

Res judicata / Business Premises Tribunal proceedings

Holding

The BPRT Case No. 48 of 2018 was unrelated in subject matter; the Tribunal's jurisdiction does not cover land sale agreements and its findings had no bearing on this suit.

Reasoning

The Tribunal proceedings concerned alleged rent arrears under a landlord-tenant relationship, whereas this suit concerned a sale agreement for disposition of land. The BPRT's jurisdiction is confined to landlord and tenant disputes and cannot extend to questions of ownership, validity or enforcement of land sale agreements, so the res judicata objection failed.

p. 5

Legal principles established

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  • General damages are not recoverable for breach of contract; contractual damages are in the nature of special damages and must be specifically pleaded and proved
  • Fraud must be specifically pleaded and strictly proved to a standard higher than balance of probabilities; bare assertions cannot displace a written and attested agreement
  • The BPRT's jurisdiction is confined to landlord-tenant disputes and cannot extend to ownership or enforcement of land sale agreements

Court orders

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  1. 1.The award of Kshs. 300,000/- as general damages for breach of contract is set aside
  2. 2.The retained awards aggregate to Kshs. 900,825/-, which shall stand as the decretal amount
  3. 3.Each party shall bear their own costs of the appeal
On appeal from
Chief Magistrate's Court (Sirisia)
SPM-ELC Case No. 19 of 2020
Jurisdiction invoked
First appellate jurisdiction over the trial court's judgment in a land dispute (ELC appeal)

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, "Agostino v Kituyi (Civil Appeal E012 of 2025) [2025] KEELC 7177 (KLR)", Case Analysis (2025). Sirisia SPM-ELC Appeal from Case No. 19 of 2020 (memorandum of appeal dated 05/08/2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7177/eng@2025-09-25

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