Inc Supplies Limited v Kihara (Environment and Land Appeal E206 of 2024) [2025] KEELC 8562 (KLR)
The bottom line
#Kenya's Environment and Land Court awarded a property buyer Kshs 10 million for a cancelled land sale, ruling that an unchallenged valuation proves loss of bargain.
What this practically means
#Executive summary
#Key legal issues
#Whether the trial court erred in dismissing the claim for loss of bargain for want of a valuation as at the repudiation date
The trial court erred: the valuation report expressly stated the market value of the suit land as at 3/6/2019 was Kshs 35 Million, and that evidence was unchallenged; the dismissal of the loss-of-bargain claim was fit for interference and the claim succeeds
The sale agreement and the Respondent's breach were undisputed. The valuation report of Hanson Valuers Limited expressly opined the market value as at 3/6/2019 to be Kshs 35 Million. The Learned Magistrate erred in treating that valuation as one done on 21/8/2023 and in finding no valuation as at the repudiation date. The Respondent did not challenge the expert evidence or tender a competing report. Applying the Halsbury and Gami principles, the loss of bargain is the excess of value at repudiation over the contract price, justifying the Kshs 10 Million award.
The measure and assessment date of damages for loss of bargain in a failed land sale
Loss of bargain is the amount by which the net value of the property at the due date exceeded the purchase price; where the vendor wrongfully refuses to complete, the measure is the purchaser's loss as the natural and direct result of repudiation, assessed here at the repudiation date of 3/6/2019
Relying on Megarry and Wade, Halsbury's Laws of England, and Gami Properties Ltd v NSSF, the court adopted the market-value measure, with a flexible assessment date which on the facts is the repudiation date of 3/6/2019, when the valuation report places the market value at Kshs 35 Million against a contract price of Kshs 25 Million, yielding a Kshs 10 Million loss of bargain.
Legal principles established
#- Where a vendor wrongfully refuses to complete, damages include loss of bargain where there is evidence that the value of the property at the date of repudiation exceeded the agreed purchase price
- A court cannot rewrite a contract between parties; parties are bound by its terms absent coercion, fraud or undue influence
- A first appellate court must reconsider and evaluate the evidence and draw its own conclusions, while making allowance for not having seen or heard the witnesses
Court orders
#- 1.The appeal be and is hereby allowed
- 2.The dismissal of the claim for loss of contract and/or loss of bargain is set aside and substituted with an award of Kshs 10 Million with interest at court rates from 3/6/2019
- 3.No orders as to costs (the appeal was not contested)
- On appeal from
- Chief Magistrate's Court, Milimani (MCELC 5135 of 2019)
- MCELC 5135 of 2019
- Jurisdiction invoked
- Appellate jurisdiction of the Environment and Land Court over a first appeal from the Chief Magistrate's Court (first appeal by way of retrial)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Inc Supplies Limited v Kihara (Environment and Land Appeal E206 of 2024) [2025] KEELC 8562 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8562/eng@2025-12-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.