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ELCPartially AllowedNot stated in the judgment

Isoe & another v Obiero (Environment and Land Appeal E003 of 2025) [2026] KEELC 3003 (KLR)

High Court of Kenya
20 May 2026
2,680 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan land buyer who hadn't fully paid couldn't force the sale transfer, and got back only the money the seller admitted receiving.

What this practically means

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Executive summary

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This was a first appeal to the High Court at Nyamira against a judgment of the Subordinate Court (C I Agutu, SRM) delivered on 12th March 2025. The Respondent had sued the Appellants claiming that the First Appellant sold him a one-acre portion of North Mugirango/Boisanga/6399 in 1999 for KShs 100,000, which he alleged was paid, partly in cash and partly through school fees for the Second Appellant, and that he was evicted in December 2018. The trial court ordered specific performance or, in the alternative, refund of KShs 100,000 and payment of KShs 562,940 for damaged trees, with costs. The Appellants appealed, contending the Respondent had not paid the full price, that school fees were never a contractual term, and that the special damages were unpleaded and unproven. Ohungo J, restating the remit of a first appellate court, held that the agreement recorded a price of KShs 100,000 with only KShs 45,000 paid; the alleged payment through school fees was impermissible under the parole evidence rule (Section 97(1) of the Evidence Act) and unproven, so the Respondent was in breach. Specific performance, being equitable, was unavailable to a party in breach, and the trial magistrate had wrongly exercised her discretion. The tree damages of KShs 562,940 were unpleaded and unproven special damages. Only the admitted KShs 45,000 was recoverable. The appeal was allowed: the trial judgment was set aside and judgment entered for the Respondent against the First Appellant for KShs 45,000 with interest at court rate from filing of the suit until payment in full, with each party bearing their own costs of both the appeal and the subordinate court proceedings.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Respondent had fulfilled his obligations under the contract of sale
  2. 2.Whether the reliefs sought (specific performance, refund of purchase price, and compensation for damaged trees) were available

Key legal issues

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01

Whether the Respondent fulfilled his contractual obligation to pay the full purchase price

Holding

The balance of KShs 55,000 remained unpaid; the alleged payment through school fees was impermissible under the parole evidence rule and unproven, so the Respondent was in breach

Reasoning

The written agreement recorded a price of KShs 100,000 with KShs 45,000 paid, leaving a balance of KShs 55,000. It nowhere provided that the balance would be settled through payment of school fees. Attempting to introduce that term orally contravened the parole evidence rule under Section 97(1) of the Evidence Act, and in any event no proof of payment of school fees was produced. The court therefore found the Respondent in breach.

p. 5
02

Whether specific performance was available to the Respondent

Holding

Not available; an equity will not assist a party in breach, and the trial magistrate's grant of specific performance was a wrong exercise of discretion

Reasoning

Specific performance is a discretionary and equitable remedy governed by maxims such as 'he who comes to equity must come with clean hands' and 'equity will not assist a party in breach'. Since the Respondent was found to be in breach of the agreement, awarding specific performance would be neither just nor equitable. The magistrate therefore wrongly exercised her discretion, giving the appellate court reason to interfere.

p. 5
03

Whether the Respondent proved the special damages claimed (refund of KShs 100,000 and KShs 562,940 for trees)

Holding

Only the admitted KShs 45,000 was recoverable; the KShs 562,940 for damaged trees was unproven as special damages must be specifically pleaded and strictly proved

Reasoning

Special damages must be specifically pleaded and strictly proved with certainty and particularity. The Respondent pleaded no particulars of the sums claimed, so any part not admitted remained unproven. However, the Appellants admitted receiving KShs 45,000 and even offered to refund it in their defence, so that sum required no proof and was awarded against the First Appellant.

p. 5

Legal principles established

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  • A court of law cannot rewrite a contract between the parties; parties are bound by its terms unless coercion, fraud or undue influence are pleaded and proved
  • Under the parole evidence rule, oral or extrinsic evidence is inadmissible to contradict, vary or add to the terms of a written contract
  • A litigant seeking specific performance must prove strict performance of his contractual obligations or readiness, willingness and ability to perform them
  • Special damages must be specifically pleaded and strictly proved with a degree of certainty and particularity
  • An appellate court will interfere with the exercise of discretion by the trial court where it is shown to have been wrongly exercised

Court orders

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  1. 1.Judgment of the Subordinate Court set aside
  2. 2.Judgment entered in favour of the Respondent and against the First Appellant for KShs 45,000 with interest at court rate from the date of filing of the suit in the Subordinate Court until payment in full
  3. 3.Each party to bear own costs of the appeal and of the proceedings in the Subordinate Court

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Subordinate Court (Senior Resident Magistrate)
Not stated in the judgment
Jurisdiction invoked
First appellate jurisdiction over the Subordinate Court (the judgment identifies itself as 'a first appeal'); no specific constitutional or statutory provision is cited

Relief refused

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Specific performance of the sale agreement (transfer of the portion of the suit property)

The Respondent was himself in breach of the contract, having not paid the balance of KShs 55,000, and specific performance is a discretionary equitable remedy unavailable to a party in breach

p. 5

Compensation of KShs 562,940 for damaged trees

Special damages must be specifically pleaded and strictly proved; the amount was not pleaded with particulars nor proven

Refund of the full purchase price of KShs 100,000

Only KShs 45,000 was admitted as received; the admitted sum needed no proof and only that sum was awarded

p. 6

Costs

Parties shall bear own costs of this appeal and of the proceedings in the Subordinate Court

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I set aside the judgment of the Subordinate Court.
p. 6disposition - setting aside the trial court judgment
I enter judgment in favour of the Respondent and against the First Appellant for KShs 45,000 (Kenya Shillings Forty Five Thousand) with interest at Court rate from the date of filing of the suit in the Subordinate Court until payment in full.
p. 6disposition - substituted judgment
Parties shall bear own costs of this appeal and of the proceedings in the Subordinate Court.
p. 6disposition - costs
I find that the balance of KShs 55,000 remains unpaid and that the Respondent was in breach of the agreement.
p. 5breach of contract by the plaintiff
Where a condition or essential term ought to have been performed by the plaintifi at the date of the writ, the court does not accept his undertaking to perform in lieu of performance, but dismisses the claim.
p. 5specific performance - principle (quoted from Gurdev Singh Birdi)

Issues in the judgment

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minor

The judgment is internally dated twice inconsistently: it records the judgment date as 20th May 2026 in the delivery clause, while noting submissions filed on 19th December 2025 and 26th January 2026 (consistent), but the trial court judgment is dated 12th March 2025 and the memorandum of appeal 9th April 2025; the delivery date of 2026 is stated in the dispositive paragraph

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Isoe & another v Obiero (Environment and Land Appeal E003 of 2025) [2026] KEELC 3003 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3003/eng@2026-05-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.