Njoroge v Ng’ang’a t/a Humuka Land Buying and Selling Agencies (Environment and Land Appeal E004 of 2024) [2026] KEELC 1474 (KLR)
The bottom line
#A Kenyan land seller who skipped the contract's required notice before cancelling a sale lost her appeal and must now transfer the property.
What this practically means
#Executive summary
#Key legal issues
#Whether the Appellant proved breach of contract by non-payment on a balance of probabilities
No. The Respondent's payment exhibits were found credible and the Appellant's claim of unpaid balances (bounced cheque and failed RTGS transfers) was not proved; the trial court's factual findings on the arithmetic of payments stood.
As a first appellate court, the judge re-evaluated the evidence under the Selle principles but applied the Munya rule that findings of fact by a trial court which observed witnesses should not be disturbed unless perverse or unsupported by evidence. The Respondent produced payment exhibits the trial court found credible, while the Appellant's allegations of dishonoured payment lacked corroborating evidence of communication or report.
Whether the Appellant's failure to issue the 21-day completion notice and provide completion documents barred rescission
Yes. Failure to issue the 21-day notice was a fatal procedural defect and the Appellant could not unilaterally rescind; her failure to provide completion documents under Clause 4.3 constituted breach on her part.
Relying on the National Bank of Kenya v Pipeplastic principle that courts cannot rewrite contracts, the court held the contractual notice clause had to be honoured before rescission. Sections 38, 39 and 41 of the Land Act, 2012 protected the purchaser in possession, and the Appellant failed to justify possession proceedings by proof of a validly rescinded contract. A party cannot benefit from its own breach.
Whether there were grounds to disturb the trial magistrate's findings of fact
No. The trial magistrate's decision was reasoned and informed and was upheld and confirmed.
Applying Gatirau Peter Munya v Dickson Mwenda Kithinji, the court declined to interfere with the trial court's factual findings on the arithmetic of payments, absent proof that they were perverse or based on no evidence. The court also drew on Hong Kong Fir Shipping to note that even a minor balance would not entitle the Appellant to rescind after substantial performance.
Legal principles established
#- An appellate court should be slow to disturb findings of fact by a trial court which had the advantage of hearing and observing witnesses, unless those findings are perverse or based on no evidence.
- Courts cannot rewrite contracts; parties are bound by the terms of their agreement, including contractual notice requirements for rescission.
- A purchaser in physical occupation of land is protected; a vendor must seek a court order for possession.
Court orders
#- 1.The Appeal is hereby dismissed in its entirety for lack of merit.
- 2.The Judgment of Hon. V. Asiyo delivered on 20/12/2023, is upheld and confirmed.
- 3.The Respondent is awarded the costs of this Appeal and the costs of the trial Court, following the principle in Section 27 of the Civil Procedure Act.
- 4.The Appellant is ordered to execute all necessary transfer documents for JUJA/JUJA EAST BLOCK 1/205 in favor of the Respondent within 30 days of this order.
- On appeal from
- Chief Magistrate's Court at Thika
- CM-ELC NO. 76 of 2021
- Jurisdiction invoked
- First appellate jurisdiction over the Chief Magistrate's Court (Environment and Land Court Act), appeal from Thika CM-ELC No. 76 of 2021
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njoroge v Ng’ang’a t/a Humuka Land Buying and Selling Agencies (Environment and Land Appeal E004 of 2024) [2026] KEELC 1474 (KLR)", Case Analysis (2026). ELCLA NO. E004 OF 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1474/eng@2026-03-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.