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ELCPartially AllowedKabarnet ELC Appeal (memorandum of appeal dated 11th December 2024)· [2026] KEELC 3091 (KLR)

Tuitoek v Kiberut (Environment and Land Appeal E002 of 2025) [2026] KEELC 3091 (KLR)

Environment and Land Court
22 May 2026
BOBoaz N. Olao
3,418 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land buyer who breaches the sale agreement cannot force the seller to complete the sale, and the buyer must vacate the land.

What this practically means

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Executive summary

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This is a first appeal from the judgment of Hon. Caroline R. T. Ateya (Principal Magistrate) in Kabarnet ELC Case No. E018 of 2021, delivered on 13th November 2024. The dispute arose from a land sale agreement dated 8th April 2020 under which the Appellant sold land parcel BARINGO/KAPROPITA/1883 to the Respondent for Kshs. 810,000, of which Kshs. 460,000 was paid on signing and Kshs. 350,000 was payable in instalments. The Respondent breached the agreement; the Appellant issued a 21-day completion notice, revoked the agreement, and returned the Kshs. 280,000 balance. The trial court found the Respondent in breach but, paradoxically, ordered specific performance with a 20% penalty, while declining general damages for breach of contract and damages for trespass. On appeal, Boaz N. Olao J applied the established first-appeal duty to re-evaluate the evidence and the powers under Section 78 of the Civil Procedure Act. The court held that specific performance, being an equitable remedy, is unavailable to a party in breach, and that by the time of judgment there was no enforceable agreement to perform; order (b) was set aside. The trial court's refusal of general damages for breach of contract was upheld as consistent with settled law. However, the court held that trespass to land is actionable per se, requiring no specific pleading or proof of loss, and assessed general damages for trespass at Kshs. 150,000. The appeal partially succeeded: the Respondent was given 60 days to remove his structures and give vacant possession, failing which eviction and a permanent injunction would follow; the Appellant was to refund the purchase price received less 20%; and the Respondent was ordered to pay half the costs in both courts.

Key legal issues

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01

Specific performance of the land sale agreement

Holding

The order of specific performance was set aside; having breached and had the agreement rescinded, the Respondent could not compel specific performance and there was no enforceable agreement left to perform

Reasoning

The Respondent breached the agreement by failing to pay the balance within the stipulated time. Time was of the essence; the Appellant issued a completion notice and a revocation notice and returned the Kshs. 280,000 balance, making rescission clear. Specific performance, being equitable, is unavailable to a party in breach. By judgment time there was no enforceable agreement, so order (b) of the trial court had no foundation.

p. 5
02

General damages for breach of contract

Holding

The trial magistrate correctly declined to award general damages for breach of contract; the first limb of order (c) was upheld

Reasoning

Following binding Court of Appeal authority, general damages are not recoverable in breach of contract cases; only specific, quantified loss is compensable. The trial magistrate's reliance on Kenya Women Microfinance Ltd v Martha Wangari Kamau was in accord with settled law, so the Appellant's challenge to that limb of order (c) failed.

p. 6
03

Damages for trespass

Holding

The trial magistrate erred in treating damages for trespass as special damages; trespass is actionable per se and the appeal court assessed Kshs. 150,000 as general damages for trespass

Reasoning

The trial court wrongly required trespass damages to be specifically pleaded and proved as special damages. Trespass to land is actionable per se and no proof of loss is needed. The Respondent entered the land before paying the full purchase price, and a ruling of 19th August 2021 had already restrained development. Exercising Section 78 powers, the court assessed Kshs. 150,000.

p. 6

Legal principles established

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  • Specific performance is an equitable remedy not available to a party in breach of the agreement
  • Where time is of the essence and the buyer fails to complete within the notice period, all remedies including rescission are available to the aggrieved party
  • General damages are not awardable for breach of contract
  • Trespass to land is actionable per se and damages for trespass need not be specifically pleaded or proved as special damages

Court orders

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  1. 1.The appeal partially succeeds
  2. 2.Part of the trial court judgment ordering specific performance of the sale agreement, directing completion of payment with the 20% penalty, and directing the Appellant to assist in obtaining consent and transfer, is set aside
  3. 3.The Respondent shall within 60 days of the judgment remove his structures from the suit land and give vacant possession to the Appellant
  4. 4.The Appellant shall within 30 days of the judgment refund to the Respondent the purchase price already received less 20%
  5. 5.In default, the Respondent shall be evicted and permanently restrained from interfering with the Appellant's occupation and possession of the suit land
  6. 6.The Appellant is awarded Kshs. 150,000 as general damages for trespass to the suit land
  7. 7.The Respondent shall meet half the costs both in the appeal and in the lower court, together with interest agreed or taxed
On appeal from
Senior Principal Magistrate's Court, Kabarnet (ELC Case No. E018 of 2021)
ELC Case No. E018 of 2021
Jurisdiction invoked
First appellate jurisdiction over the subordinate court (Section 78, Civil Procedure Act)

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, "Tuitoek v Kiberut (Environment and Land Appeal E002 of 2025) [2026] KEELC 3091 (KLR)", Case Analysis (2026). Kabarnet ELC Appeal (memorandum of appeal dated 11th December 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3091/eng@2026-05-22

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