Chiko v Agunga (Environment and Land Appeal E014 of 2023) [2026] KEELC 2196 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled a land buyer who stopped paying instalments breached the sale agreement and must forfeit his deposit and vacate the plot.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Who was in breach of the agreement dated 4th March 2014?
- 2.Who ought to bear the costs?
Key legal issues
#Who was in breach of the agreement for sale dated 4th March 2014
The respondent was in serious and continuing breach by failing to pay the second instalment of Kshs 1,500,000 within three months, and by refusing to remedy the breach after notice; the appellant was not in breach and could rely on the default clause
The court found the 3-month period applied to the second instalment. Payment of Kshs 500,000 outside the period only impliedly extended time. The appellant's letters of 29/6/2015 and 27/7/2020 were sufficient notices of breach. The respondent's unilateral conclusion that a third party named Santo owned the land, without court proceedings, did not justify repudiation; the agreement itself disclosed the third-party claim. His conduct was held opprobrious and oppressive.
Whether the trial magistrate erred in finding the appellant lacked capacity to sell for want of title
The magistrate misapprehended the evidence and took into account extraneous issues in accepting the unsubstantiated claim that Santo owned the land
Both parties knew title had not issued in the appellant's name; the agreement expressly recognised a judicial review challenge to a third party's title, to be funded by the respondent. The respondent admitted purchasing from the appellant on the strength of the appellant's SFT charge and never produced documents proving any purchase from Santo, who was not called as a witness. The magistrate therefore incorrectly applied the standard of proof and wrongly found want of capacity.
Whether the appellant had waived time being of essence so as to lose the right to rely on the default clause
The trial magistrate incorrectly applied the law on waiver; the appellant's letters of notice of breach showed he had not waived his rights
The magistrate relied solely on paragraph 10 of the appellant's witness statement to find waiver. The first appellate court held the witness statement should have been considered alongside the appellant's letters giving notice, and that paragraph 10 did not absolve the respondent of future breaches. The Dhanjal Investments authority on waiver/affirmation was inappropriately applied since the respondent was in fundamental breach.
Legal principles established
#- On a first appeal the court reconsiders and re-evaluates the evidence and draws its own conclusions, departing from trial findings only where they were not based on the evidence, were based on wrong principles, or the discretion was exercised injudiciously
- Parties are bound by the terms of the agreement they mutually execute and cannot rely on self-made determinations of third-party title to refuse performance
- A letter giving notice of breach with details of the remedy required is sufficient notice; a party not in default may rely on a forfeiture/default clause unless he is himself in breach
- Retaining a joint advocate in a conveyancing transaction is a practice that ought to be discouraged
Court orders
#- 1.The present appeal is hereby allowed
- 2.The judgment and decree in Kilifi Land Civil Suit Number 59 Of 2020 allowing the respondent's counterclaim and dismissing the appellant's suit is set aside and judgment entered in favour of the appellant
- 3.A declaration that the respondent breached the terms of the agreement dated 4th March 2014 and wholly forfeited the part of the purchase price paid to the appellant
- 4.An order of permanent injunction restraining the respondent, his employees and/or agents from remaining on, constructing, erecting perimeter wall, trespassing or dealing with plot Kilifi/Kijipwa/4
- 5.An order directing the respondent to demolish the structures and/or perimeter wall on Kilifi/Kijipwa/4 within 14 days and deliver vacant possession, failing which the appellant may demolish at the respondent's expense under supervision of the OCS Kijipwa Police Station
- 6.The respondent to pay the appellant Kenya Shillings 50,000 as damages for breach of the agreement for sale dated 4th March 2014
- 7.The costs of the suit in the lower court to be borne by the respondent
- 8.The costs of the present appeal to be borne by the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court, Kilifi
- Kilifi Land Civil Suit Number 59 of 2020
- Jurisdiction invoked
- First appellate jurisdiction of the Environment and Land Court over appeals from the magistrates' court in land matters
Relief refused
#Damages for breach of agreement as sought by the appellant beyond a nominal/token award
The court allowed the appeal but awarded only a token sum of Kshs 50,000 as damages for breach of the sale agreement rather than the general damages claimed
Costs
The costs of the suit in the lower court and the costs of the present appeal shall be borne by the respondent
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.
Parties are bound by the terms of the agreement they mutually execute.
the present appeal has merit. I therefore issue the following final orders: a. The present appeal is hereby allowed;
A declaration is hereby issued declaring that the respondent breached the terms of the agreement dated 4th March 2014 and as such wholly forfeited the part of the purchase price paid to the appellant;
This court finds the respondent's conduct to be not only in breach but also opprobrious and oppressive to the appellant.
this is indicative of the crisis that arises when parties retain a joint advocate in a conveyancing transaction, and which practice ought to be discouraged.
Issues in the judgment
#The judgment states the issues can be coalesced into three issues but lists only two, and the issues are numbered a and b
Delivery date is stated as 16th April 2026, which appears chronologically anomalous
The appeal grounds are numbered 1 to 6 but a stray numeral '4.' appears before the list
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chiko v Agunga (Environment and Land Appeal E014 of 2023) [2026] KEELC 2196 (KLR)", Case Analysis (2026). Kilifi Land Civil Appeal (ELC Appeal) arising from Kilifi Land Civil Suit Number 59 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2196/eng@2026-04-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.