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ELCDismissedAppeal dated 22/05/2023 (Kikuyu PMCC Suit, Judgment of SPM Jacinta Orwa delivered 12/05/2023)· [2025] KEELC 7455 (KLR)

Ngugi v Ngugi (Environment and Land Appeal E045 of 2023) [2025] KEELC 7455 (KLR)

Environment and Land Court
3 November 2025
3,432 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Appellant (plaintiff before the trial court) appealed against the judgment of Hon. SPM Jacinta Orwa delivered on 12/05/2023 at Kikuyu, which dismissed his claim for specific performance of two sale agreements (dated 19/11/2017 and 14/02/2018) for 0.4 Ha within LR No. 26693 (Original No. 20064/7) Kiambu. He advanced 23 grounds, contending that he had paid a deposit of Kshs 1,100,000 towards clearing the vendor's Chase Bank loan, transferred his motor vehicle KBX 106W, and was denied completion documents and vacant possession; he also complained of unjust enrichment and sought preservation of the suit property under Section 13(7)(a) of the Environment and Land Court Act. The Respondent filed Grounds of Opposition, maintaining that the Appellant breached the agreements by failing to transfer the vehicle within 90 days and failing to pay the balance of Kshs 500,000, and that the contract was lawfully rescinded. The court, as a first appellate court, applied the Seascapes and Selle principles on re-evaluation of evidence. It held that Clauses C and D of the 14/02/2018 agreement entitled the vendor to rescind upon the Appellant's failure to transfer the vehicle within 90 days, which failure the Appellant admitted, along with the unpaid balance. Since contracts are voluntary undertakings that courts cannot re-write, specific performance was unavailable. The court found no manifest error in the trial court's decision and dismissed the appeal, awarding costs to the Respondent.

Key legal issues

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01

First appellate court's duty on re-evaluation of evidence

Holding

The court must reconsider and re-evaluate the evidence and draw its own conclusions while allowing for the trial court's advantage of observing witness demeanor.

Reasoning

The court adopted the settled principles from Seascapes Limited and Selle v Associated Motor Boat Co. Ltd: a first appellate court relooks at the evidence afresh but, having neither seen nor heard the witnesses, gives allowance for demeanor findings. It may not substitute its own view merely because it would have decided differently at first instance.

p. 6
02

Whether the Appellant proved entitlement to specific performance of the sale agreements

Holding

No. The Appellant failed to pay the balance and failed to transfer the motor vehicle within 90 days, entitling the vendor to rescind under Clauses C and D; the trial court's dismissal of the claim was correct.

Reasoning

Clause C and D of the 14/02/2018 agreement allowed rescission if the vehicle was not transferred within 90 days. The Appellant admitted he never transferred the vehicle (which was not even in his name) and owed Kshs 500,000. His alleged oral variation to pay Kshs 5,000,000 in lieu was denied and unproven. The conduct of the parties confirmed breach and lawful rescission by the seller.

p. 6
03

Whether the deposit paid (Kshs 1,100,000) should have been the subject of judgment (unjust enrichment)

Holding

The court made no award on the deposit; the agreement did not expressly state what would happen to the deposit received and no interference with the trial court's decision was warranted.

Reasoning

The court noted the contract was silent on the fate of the deposit and that rescission was an option exercised by the vendor. The Appellant sought no independent relief on the deposit that succeeded; the appeal on all grounds failed and the trial judgment was left undisturbed.

p. 6
04

Costs of the appeal

Holding

Costs follow the event; the Respondent, who successfully defended the appeal, ought to have been awarded costs, and costs were so awarded.

Reasoning

Applying Section 27 of the Civil Procedure Act, the court held that the trial magistrate had directed each party to bear its own costs, but the Respondent ought to have been awarded costs since the suit was properly dismissed. Costs of the appeal were accordingly awarded to the Respondent.

p. 7

Legal principles established

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  • A first appellate court must re-evaluate the evidence afresh and reach its own conclusions, but must give due allowance to the trial court's advantage of seeing and hearing the witnesses, and may not disturb findings merely because it would have reached a different result.
  • Courts will not re-write contracts for contracting parties; parties are bound by their voluntary undertakings, and where a defaulting party's contract is lawfully rescinded, specific performance will not be granted.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal are awarded to the Respondent
On appeal from
Senior Principal Magistrate's Court, Kikuyu
not stated on record provided
Jurisdiction invoked
First appellate jurisdiction over the subordinate court suit (Section 13(7)(a) of the Environment and Land Court Act, 2011 invoked by the Appellant in his prayers)

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, "Ngugi v Ngugi (Environment and Land Appeal E045 of 2023) [2025] KEELC 7455 (KLR)", Case Analysis (2025). Appeal dated 22/05/2023 (Kikuyu PMCC Suit, Judgment of SPM Jacinta Orwa delivered 12/05/2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7455/eng@2025-11-03

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