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ELCPartially AllowedNot stated in the judgment· [2025] KEELC 8562 (KLR)

Inc Supplies Limited v Kihara (Environment and Land Appeal E206 of 2024) [2025] KEELC 8562 (KLR)

Environment and Land Court
9 December 2025
2,737 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a first appeal to the Environment and Land Court at Nairobi against the judgment of Hon Thomas Nzyoki, CM in MCELC 5135 of 2019 (Milimani), delivered on 29/11/2024. The Appellant, who was the Plaintiff, had sued for breach of a sale agreement dated 25/7/2016 over 1/2 acre of LR No 2951/344, seeking a refund of Kshs 5,039,250/- paid as deposit and incidentals and damages for loss of bargain of Kshs 10 Million. The trial court awarded the refund with interest from 3/6/2019 (the repudiation date) but dismissed the loss-of-bargain claim, holding that there was no valuation of the property as at 3/6/2019. On appeal, only the Appellant filed submissions; the Respondent did not comply with directions. The Appellant relied on Gami Properties Ltd v NSSF, Wandiga & Anor v Chege, Halsbury's Laws of England and Megarry & Wade's The Law of Real Property, arguing the valuation report by Hanson Valuers Limited expressly valued the land at Kshs 35 Million as at 3/6/2019 and was unchallenged. The court, applying Selle v Associated Motor Boat Co and Mbogo v Shah, found the Learned Magistrate misapprehended the valuation evidence, which stated its value 'as at 3/6/2019'. The appeal was allowed; the dismissal of the loss-of-bargain claim was set aside and substituted with an award of Kshs 10 Million with interest at court rates from 3/6/2019. Since the appeal was uncontested, no orders as to costs were made.

Key legal issues

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01

Whether the trial court erred in dismissing the claim for loss of bargain for want of a valuation as at the repudiation date

Holding

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

Reasoning

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.

p. 6
02

The measure and assessment date of damages for loss of bargain in a failed land sale

Holding

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

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The appeal be and is hereby allowed
  2. 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. 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

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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, "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.