Ngugi v Ngugi (Environment and Land Appeal E045 of 2023) [2025] KEELC 7455 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#First appellate court's duty on re-evaluation of evidence
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.
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.
Whether the Appellant proved entitlement to specific performance of the sale agreements
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.
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.
Whether the deposit paid (Kshs 1,100,000) should have been the subject of judgment (unjust enrichment)
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.
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.
Costs of the appeal
Costs follow the event; the Respondent, who successfully defended the appeal, ought to have been awarded costs, and costs were so awarded.
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.