Murage v Waganagwa & another (Environment and Land Appeal E008 of 2023) [2026] KEELC 979 (KLR)
The bottom line
#Kenya's High Court ruled a land buyer who paid full price but got no transfer must be refunded Kshs. 400,000 with interest.
What this practically means
#Executive summary
#Key legal issues
#Timeliness of the appeal
The appeal was filed within time because the 30-day period expired on Good Friday and was extended to the next working day.
Under Section 79G of the Civil Procedure Act an appeal from a subordinate court must be filed within thirty days. The 30-day period ended on 7/4/2023, Good Friday. By Order 50 Rule 3 of the Civil Procedure Rules, the filing window extended to the day after Easter Monday, 11/4/2023, the day the memorandum of appeal was lodged.
Striking out of the amended plaint and failure to consider the refund claim
The trial court erred by expunging the amended plaint and determining the suit on the abandoned specific performance claim instead of the refund claim.
The amended plaint superseded the original plaint and sought a refund of Kshs. 400,000/= rather than specific performance. By expunging it, the trial court failed to consider the substance of the refund claim. Even if irregularly filed, the court was bound to render substantive justice on the evidence, which showed the Respondents were paid in full but neither transferred the land nor refunded the money.
Unjust enrichment over public land
The Respondents' retention of the purchase price amounts to unjust enrichment since they could not pass good title over land that proved to be public land.
Payment of Kshs. 400,000/= was not contested, and neither was the non-transfer of the plots. The suit land was public land, occupied by a police post, and unavailable for transfer. Allowing the Respondents to retain the consideration without transferring the land, offering a refund or alternative land amounted to unjust enrichment, which equity abhors, warranting restitution of the purchase price.
Legal principles established
#- Where the last day for filing an appeal falls on a public holiday, time is extended to the next working day under Order 50 Rule 3 of the Civil Procedure Rules.
- Even if a further pleading is irregularly filed, the court is still bound to render substantive justice by considering the evidence adduced.
- Retention of the purchase price where the vendor cannot pass good title over public land amounts to unjust enrichment.
Court orders
#- 1.The judgment of the trial court delivered on 7/3/2023 is set aside
- 2.Judgment entered for the Appellant against the Respondents jointly and severally in the sum of Kshs. 400,000/= being the consideration paid
- 3.Interest on Kshs. 400,000/= at court rates from the date of filing suit until payment in full
- 4.The Appellant to have costs of the appeal
- On appeal from
- Senior Principal Magistrate's Court at Embu
- Embu CM ELC Case No. E25 of 2021 - Michael Karugano Murage v Solomon Mbuo Waganagwa & Another
- Jurisdiction invoked
- Section 79G of the Civil Procedure Act (first appeal from subordinate court to the High Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Murage v Waganagwa & another (Environment and Land Appeal E008 of 2023) [2026] KEELC 979 (KLR)", Case Analysis (2026). Appeal from Embu CM ELC Case No. E25 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/979/eng@2026-02-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.