Waiguru & another v Kihingo Village (Waridi Gardens) Limited & 3 others; Kabiro & another (Interested Parties) (Environment and Land Case Civil Suit 256 of 2019 & Enviromental and Land Originating Summons 355 of 2012 (Consolidated)) [2026] KEELC 882 (KLR)
The bottom line
#The buyer who proved her payments won the house; the rival claim backed by a forged 2007 agreement collapsed entirely.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Plaintiff or the 1st Interested Party has established a valid and enforceable proprietary interest in House No. 1D, L.R. No. 27754, Kihingo Village Waridi Gardens?
- 2.What are the appropriate reliefs to issue?
Key legal issues
#Validity of the 1st Interested Party's 2007 agreement
The agreement dated 28th November 2007 was not proved on a balance of probabilities and is tainted by fraud; it is void ab initio and confers no rights
The forensic document examiner found that Ndung'u Gethenji did not author the signature attributed to him. No competing forensic opinion rebutted this. Frederick Gethenji did not sign, the third signature could not be identified, and the 1st Interested Party could not explain how the executed agreement came into his possession. Assessed against the totality of the evidence, the cumulative inconsistencies remained unresolved, so authenticity and proper execution were not proved. Fraud vitiates everything, rendering the contract a nullity.
Whether the 1st Interested Party's claim was barred by the consent of 11th July 2023
The consent did not extinguish the property claim, but granting the house on top of the acknowledged Kshs. 130,000,000 would be double recovery, disentitling him to specific performance
The consent acknowledged a monetary liability in lieu of legal fees and contemplated continued negotiations; this court had earlier found no express or implied relinquishment of the claim to House No. 1D. However, since the house allocation arose from unpaid fees which the consent quantified at Kshs. 130,000,000, allowing him both the money and the property would offend settled equitable principles. His recourse lies in the money acknowledged.
Whether the Plaintiff's agreement was void under lis pendens or breached injunctive orders
The injunctive orders had lapsed by operation of law under Order 40 Rule 6 before the 2015 agreement was executed, and lis pendens does not nullify contracts
The lapsing of the interim orders was conclusively determined in the ruling of 9th November 2023, from which no appeal was preferred. The court order was only registered in November 2020, long after the agreement. As for lis pendens, courts have consistently held that pendente lite transactions are not void but merely subject to the outcome of the pending suit. Since the 1st Interested Party's rival agreement was invalid, there is no competing proprietary interest capable of protection by the doctrine.
Whether the directors had authority to bind the Defendant
Applying corporate personality and the rule in Turquand's case, the Defendant is bound by the agreement executed by its directors with the Plaintiff
James Ndungu Gethenji and Hilda Gethenji were undisputedly directors. There was no evidence the Plaintiff knew of internal limits or irregularity, and no forgery was alleged on her agreement. Section 34(1) of the Companies Act frees the directors' power from internal limitations when a third party deals in good faith. The Defendant's own witnesses conceded that formal governance procedures were routinely not followed, so it could not selectively invoke internal rules to impeach a transaction with a good-faith third party.
Whether the Plaintiff performed her obligations so as to earn specific performance
The Plaintiff substantially performed; the Defendant directed and accepted the impugned mode of payment and thereby waived strict compliance
The Plaintiff paid Kshs. 40,687,170, with payments acknowledged in the Defendant's letter of 19th December 2018. Payments to third-party entities departed from the contractual mode, but DW6, possessing ostensible authority, directed and sanctioned that mode; payments were received, utilised for the Defendant's benefit and accepted without protest, and the notice clause was never invoked. Following waiver and acquiescence principles, this did not amount to fundamental non-compliance, and the threshold for specific performance was met.
1st Interested Party's claim for damages for illegal distress
Struck out for want of jurisdiction, as it concerns orders of another court
Both the 1st Interested Party and the Defendant admitted the distress arose pursuant to orders in Miscellaneous Application No. 341 of 2012. The grievance was therefore grounded in the implementation or alleged misuse of those orders. Settled law requires questions of breach or contempt of court orders to be ventilated before the issuing court, so this court lacks jurisdiction.
Legal principles established
#- Transactions undertaken during the pendency of litigation are not void; the doctrine of lis pendens merely subjects the transaction to the outcome of the pending suit
- Under the rule in Turquand's case and Section 34 of the Companies Act, a third party dealing with a company in good faith need not enquire into limitations on directors' authority in the company's constitution
- A contract founded on fraud is void ab initio and incapable of conferring rights
- Where a party directs and sanctions a particular mode of performance and accepts it without protest, it waives strict contractual compliance and acquiesces in that mode of performance
Court orders
#- 1.An order of specific performance vesting House Number 1D on Land Reference Number 27754 in the Plaintiff by the Defendant upon and subject to the Plaintiff's financier furnishing an irrevocable professional undertaking to pay the Defendant the balance of Kshs. 40,000,000 in accordance with Clause 3.1.2 of the Agreement for Lease dated 25th September 2015 within thirty days of the judgment
- 2.In default of the Defendant's compliance within thirty days, the Deputy Registrar, upon being satisfied of the professional undertaking, to sign all relevant conveyance documents on behalf of the Defendant
- 3.A permanent injunction restraining the Defendant and the 1st Interested Party from transferring or dealing with House Number 1D on Land Reference Number 27754 in any way prejudicial to the Plaintiff's interests
- 4.The Defendant's Amended Defence and Counterclaim dated 24th January 2022 dismissed with costs
- 5.Save for the consent recorded in HCCC No. 355 of 2012 (and costs in that suit, excluding the Plaintiff in ELC No. 256 of 2019), all other prayers relating to House Number 1D in the 1st Interested Party's Plaint dated 31st March 2012 dismissed with no order as to costs
- 6.The Defendant to bear the costs of the suit in ELC 256 of 2019
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to interests in land (House No. 1D on L.R. No. 27754)
- Consolidated with
- HCCC Commercial Case No. 355 of 2012
Relief refused
#1st Interested Party's claim for specific performance over House No. 1D
His 2007 agreement was tainted by fraud and unproved; enforcing it alongside the consent for Kshs. 130,000,000 would amount to double recovery and unjust enrichment
1st Interested Party's claim for damages for illegal distress and eviction
The grievance concerns implementation or misuse of orders issued by another court; only that court may determine breach or contempt of its orders
1st Interested Party's prayer for taking of accounts
Spent, being the basis upon which the consent of 11th July 2023 was entered into
Defendant's counterclaim for vacant possession, rent and stand premium
The Plaintiff's agreement was valid and binding; the Defendant waived strict compliance and cannot deny the transaction
Costs
The Defendant shall bear the costs of the suit in ELC 256 of 2019; the Defendant's counterclaim dismissed with costs; all other prayers of the 1st Interested Party in HCCC No. 355 of 2012 dismissed with no order as to costs, save that the consent recorded in that suit and costs therein shall proceed separately.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
An order of specific performance is hereby issued vesting House Number 1D on Land Reference Number 27754 in the Plaintiff by the Defendant upon and subject to the Plaintiff's financier furnishing an irrevocable professional undertaking to pay to the Defendant the balance of Kshs. 40,000,000 in accordance with Clause 3.1.2 of the Agreement for Lease dated 25th September 2015 within thirty days (30) days of this Judgment.
A permanent injunction does hereby issue restraining the Defendant and or the 1st Interested Party, by themselves, their agents, their servants, their employees or otherwise howsoever from transferring or dealing with House Number 1D on Land Reference Number 27754 in any way howsoever as would prejudice the interests of the Plaintiff.
The Defendant's Amended Defence and Counterclaim dated 24th January, 2022 be and is hereby dismissed with costs.
the doctrine of lis pendens does not render such agreement void. Its effect is only to subject the transaction to the outcome of the pending litigation.
Applying the doctrine of corporate personality and the rule in Turquand's Case, the court finds that the Defendant is bound by the agreement executed on its behalf with the Plaintiff.
It is settled law that fraud vitiates everything, and a contract founded on fraud is void ab initio, incapable of creating or conferring any legal rights or obligations.
the Defendant is deemed to have waived the right to insist on strict contractual compliance and to have acquiesced in the Plaintiff's mode of performance.
Issues in the judgment
#Internal inconsistency on the date of the injunctive orders: the body of the judgment refers to orders issued on 5th December 2013, while the analysis refers to orders issued on 4th June 2012 and affirmed on 5th December 2013
Internal inconsistency in the date of the 1st Interested Party's sale agreement: pleaded and described as dated 28th November, 2007 in places, but once stated as 29th November, 2007
Internal inconsistency on the 1st Interested Party's set-off figures: earlier pleaded as Kshs 29,800,000 set off against legal fees and Kshs 12,400,000 payable, while the analysis records Kshs 29,960,000 set off and Kshs 12,840,000 payable
Internal inconsistency on the total paid by the Plaintiff: stated variously as Kshs. 40,687,170 and Kshs 40,687,817
The 2nd Interested Party's submissions are dated 26th September 2026, which post-dates the date of the judgment (19th February 2026), an apparent dating error
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Waiguru & another v Kihingo Village (Waridi Gardens) Limited & 3 others; Kabiro & another (Interested Parties) (Environment and Land Case Civil Suit 256 of 2019 & Enviromental and Land Originating Summons 355 of 2012 (Consolidated)) [2026] KEELC 882 (KLR)", Case Analysis (2026). ELC Case No. 256 of 2019 (consolidated with HCCC Commercial Case No. 355 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/882/eng@2026-02-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.