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ELCPartially AllowedEnvironment and Land Appeal E001 of 2023· [2025] KEELC 7189 (KLR)

Barasa v Ikwara (Environment and Land Appeal E001 of 2023) [2025] KEELC 7189 (KLR)

Environment and Land Court
23 October 2025
3,632 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ruled a land buyer who paid late cannot force a seller to transfer land, though the seller must refund the deposit.

What this practically means

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Executive summary

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The Appellant appealed against the judgment of the Busia Chief Magistrate's Court (ELC Case No 6 of 2018) in which the trial magistrate ordered specific performance of a land sale agreement dated 18th October 2016 over parcels South Teso/Apokor/2661 and South Teso/Apokor/2832, while simultaneously upholding the Appellant's counter-claim and awarding him Kshs.105,000. The Respondent had sued for specific performance; the Appellant counter-claimed that the Respondent breached the agreement by paying the Kshs.100,000 balance late, and sought a declaration that the agreement was null and void. On appeal, the Court reappraised the evidence under the established first-appeal principles (Okeno v R). It found the Respondent admitted paying the balance after the contractual 4-month period, and that the Appellant had equally failed to deliver original title deeds. Relying on Court of Appeal authorities on specific performance, the Court held that a party in breach cannot claim the equitable remedy of specific performance and that granting it to the Respondent would unjustly enrich him. It also held the trial magistrate's simultaneous finding that the counter-claim was proved and order for execution of the same agreement was contradictory, and the award of Kshs.105,000 was unpleaded and gratuitous. The judgment was found to substantially comply with Order 21 Rule 4, with only a date discrepancy. The Court exercised its power under Section 78(1)(a) of the Civil Procedure Rules to determine the matter finally, directing the Appellant to refund the Kshs.620,000 deposit within 30 days, in default execution to issue. Each party was ordered to bear their own costs in both courts.

Key legal issues

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01

Entitlement to specific performance despite breach

Holding

The Respondent, having admitted paying the balance of Kshs.100,000 after the contractual 4-month period, was in breach and could not obtain specific performance.

Reasoning

The Respondent admitted in cross-examination that he paid the balance late. Authorities establish that a party seeking specific performance must demonstrate performance or readiness and willingness to perform all contractual terms. An order compelling the vendor to transfer land to a purchaser in breach would amount to unjust enrichment of the purchaser.

p. 5
02

Contradictory disposal of claim and counter-claim

Holding

The trial magistrate's finding that the counter-claim was proved while simultaneously ordering execution of the same agreement was contradictory.

Reasoning

The counter-claim sought a declaration that the agreement was null and void. Once so declared, the agreement ceases to exist in law and is incapable of execution. Ordering execution while upholding the counter-claim was an error in law and in fact.

p. 7
03

Award of sums not pleaded

Holding

The award of Kshs.105,000 (balance purchase price and damages) was an error since no such counter-claim was pleaded.

Reasoning

Parties are bound by their pleadings; the Appellant's defence and counter-claim contained no prayer for payment of Kshs.105,000, so the trial magistrate awarded it gratuitously. That ground of appeal was allowed.

p. 7
04

Compliance with Order 21 Civil Procedure Rules

Holding

The judgment substantially complied with Order 21 Rule 4; only the discrepancy in the delivery dates (26th July 2020 typed versus 26th July 2023 handwritten) was noted, but it caused no prejudice.

Reasoning

Order 21 Rule 4 requires a concise statement of the case, points for determination, decision and reasons, which the impugned judgment substantially met. The date discrepancy was an error but no prejudice was suggested by the Respondent, who filed no submissions.

p. 7
05

Restitution on collapse of the transaction

Holding

The Appellant must refund the Kshs.620,000 deposit, failing which he would be unjustly enriched.

Reasoning

The Appellant had received Kshs.620,000 for a transaction that collapsed and had himself undertaken in cross-examination to refund that sum. Section 78(1)(a) of the Civil Procedure Rules empowers an appellate court to determine a case finally, so a refund order was fair.

p. 8

Legal principles established

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  • Specific performance is an equitable remedy available only to a party who has performed or is ready and willing to perform all terms of the contract; a party in breach cannot obtain it.
  • A first appellate court must re-evaluate the evidence afresh and draw its own conclusions while making allowance for the trial court's advantage of seeing and hearing witnesses.
  • A court may properly grant both a plaintiff's claim and a defendant's counter-claim depending on the circumstances; it is not alien in law.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The Appellant to refund to the Respondent the sum of Kshs.620,000 within 30 days from the date of the judgment if he has not already done so and in default, execution to issue
  3. 3.The parties to bear their own costs both in the appeal and in the Court below

Authorities

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Legislation

  • Civil Procedure RulesOrder 21 Rule 4
  • Civil Procedure RulesOrder 21 Rule 3(1)
  • Civil Procedure RulesSection 78(1)(a)
  • Civil Procedure ActSection 2 (definition of 'Judge')

Cases cited (9)

  • Okeno v R
    1972 EA 32
  • Pandya v R
    1957 EA 336
  • Shantilala M. Ruwala v R
    1957 EA 570
  • Peters v Sunday Post
    1958 EA 424
  • Selle & Another v Associated Motor Boat Company Ltd
    1968 EA 123
  • Mwanasokoni v Kenya Bus Services Ltd
    1985 KLR 931 [1985 eKLR]
  • Guardeen Singh Birdi & Marinder Singh Ghatora As Trustees Of Ramgharia Institute Of Mombasa v Abubakar Madhubuti
    C.A. Civil Appeal No 165 of 1996
  • Mawa Family Co Ltd v Industrial & Commercial Development Corporation & Another
    C.A. Civil Appeal No 76 of 2017 [2024 KECA 802 KLR]
  • Kukal Development Ltd v Tafazzal H. Maloo & 3 Others
    1993 KECA 65 KLR [C.A Civil Appeal No 155 of 1992]
On appeal from
Busia Chief Magistrate's Court
ELC Case No 6 of 2018
Jurisdiction invoked
First appeal from the Chief Magistrate's Court (appellate jurisdiction over subordinate court judgments)

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, "Barasa v Ikwara (Environment and Land Appeal E001 of 2023) [2025] KEELC 7189 (KLR)", Case Analysis (2025). Environment and Land Appeal E001 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7189/eng@2025-10-23

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