Omoke (Suing as a legal representative and administrator of the Estate of the Late Dunstan Omoke Owich) v Koskei (Environment and Land Appeal E005 of 2023) [2026] KEELC 1608 (KLR)
The bottom line
#Kenya's Environment and Land Court in Kericho set aside a land sale judgment, holding a broken contract is voidable, not void, and both parties lost on costs.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Chief Magistrate's Court sitting as an Environment and Land Court over a dispute founded on a land sale agreement
The trial magistrate had jurisdiction; contracts for sale of land relate to title, tenure and enforceable interests in land under Section 13 of the ELC Act.
Section 13(2)(d) of the Environment and Land Court Act confers jurisdiction over contracts granting enforceable interests in land. Relying on Co-operative Bank v Kangethe Njuguna, the court noted ELC jurisdiction over contracts is tied to use and title of land. Since a sale agreement is the first step towards acquisition of title, regulated by the Land Act and Land Registration Act, the dispute fell squarely within the ELC's jurisdiction, and by extension this Court's appellate jurisdiction.
Validity of the agreement dated 16th April, 2007
The agreement was valid, meeting the requirements of a valid contract under the Law of Contract Act and the Land Act; breach would render it voidable, not void.
The agreement was in writing, signed by both parties, witnessed by two persons and supported by consideration of Kshs. 639,000, of which Kshs. 250,000 was paid at execution. It therefore satisfied Section 38 of the Land Act and the Law of Contract Act. The letter of 15th August 2007 evidenced an intention to rescind for breach, and rescission is a remedy for breach; non-performance does not void an agreement but makes it voidable at the option of the non-breaching party.
Existence and legal effect of the second (undated) agreement of on or about 14th August, 2010
A valid and binding agreement was entered into on or about 14th August, 2010, which modified the 2007 agreement and authorized the purchaser's occupation.
The respondent's uncontroverted evidence, corroborated by defence witnesses Samuel Kibore Keter and Paul Kiplagat Kirui, established renegotiation at Kupere market, payment of Kshs. 289,000 by banker's cheque, an additional Kshs. 140,000 (Kshs. 20,000 per acre) and liberty to occupy the land. The appellant's bare allegation of forgery was not strictly proved as required for fraud allegations. The cheques became stale because the deceased failed to bank them, so the respondent did not breach.
Whether the suit land belonged to the deceased and/or his estate
The trial magistrate was right to decline to find that the land did not belong to the deceased or his estate; the respondent was estopped from denying it.
The respondent relied on the sale agreements and proved their terms while simultaneously denying that the subject land belonged to the deceased, relying on a grant of letters of administration that did not list the suit land. The court endorsed the trial magistrate's estoppel reasoning, holding that equity, good conscience and fairness required consistency, and that a party cannot blow hot and cold on the same transaction.
Compliance with Section 79 of the Civil Procedure Act and Order 42 Rules (1) & (2) regarding the record of appeal
Failure to attach the decree and/or certified copy of the judgment was not fatal to the appeal.
The record of appeal indeed lacked the decree and the attached judgment had missing pages. However, following Elizanya Investments Limited v Lean Energy Solutions, the court held that the omission should not invalidate an appeal where the trial court file has been availed and the judgment read, applying Article 159(2)(d) of the Constitution against undue regard to procedural technicalities.
Legal principles established
#- Non-performance of contractual obligations renders a contract voidable at the option of the innocent party, not void.
- Jurisdiction can be raised at any stage of proceedings, even on appeal, and cannot be conferred by consent.
- The ELC has jurisdiction over disputes arising from contracts for the sale of land because such contracts concern title and conveyance of interests in land.
- A valid subsequent agreement modifying the terms of an earlier sale agreement is binding and may defeat claims of breach of the original agreement.
- A litigant cannot approbate and reprobate - take contradictory positions on the validity and subject matter of the same agreements.
- Failure to attach a decree or certified copy of the judgment to a record of appeal is not fatal where the trial court file and judgment have been availed.
Court orders
#- 1.The Judgment and decree of the Learned Trial Magistrate delivered on 3rd October, 2023 in Kericho CM ELC Case No. 9 of 2018 is set aside
- 2.The suit is dismissed with costs
- 3.Each party shall bear own costs of the Appeal
- 4.The Appeal and Cross-Appeal are dismissed
- On appeal from
- Chief Magistrate's Court sitting as an Environment and Land Court, Kericho
- Kericho CM ELC Case No. 9 of 2018
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution as read with Section 13 of the Environment and Land Court Act, 2011 (appellate jurisdiction over subordinate courts in land matters)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omoke (Suing as a legal representative and administrator of the Estate of the Late Dunstan Omoke Owich) v Koskei (Environment and Land Appeal E005 of 2023) [2026] KEELC 1608 (KLR)", Case Analysis (2026). Kericho ELC Appeal (Memorandum of Appeal dated 12th October, 2023; Cross-Appeal dated 1st August, 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1608/eng@2026-03-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.