Kimaru v Salim (Environment and Land Appeal E001 & E005 of 2025 (Consolidated)) [2026] KEELC 3565 (KLR)
The bottom line
#A land seller who refused to complete a property sale lost in court and must pay the buyer over KSh 2.3 million per plot in damages.
What this practically means
#Executive summary
#Key legal issues
#Breach of the sale agreement
The appellant, not the respondent, was in breach, having failed to deliver completion documents on which payment of the balance was contingent, and had no justification to rescind.
The balance of Sh.300,000 per plot was payable only upon delivery of completion documents. The appellant admitted in cross-examination that he had nothing to show he informed the plaintiff that the documents were ready. The agreements acknowledged receipt of Sh.1,500,000 per plot, making the appellant's claim that the deposit was unpaid dishonest. His attempted rescission and refund of Sh.3,290,000 two years later was unilateral and unjustified.
Land Control Board consent
The Land Control Board consent was not a term of the agreement, and the appellant raised the issue too late and without evidence.
The written agreement did not factor in Land Control Board consent as a completion document. Even if consent had been necessary, the appellant adduced no evidence that he raised the issue after execution of the agreement or sought to revise it with the respondent. The objection was therefore unsustainable.
Damages for loss of bargain
The award of Sh.2,355,000 per plot as loss of bargain was justified, being the difference between the market value of Sh.4,000,000 (per unchallenged valuation evidence) and the amount paid of Sh.1,645,000.
The plaint claimed the current market value of the plots. The respondent produced valuation reports valuing each plot at Sh.4 million by a registered valuer. The appellant merely disputed the valuation without producing any countervailing evidence or a search. The trial court's arithmetic difference was therefore properly arrived at and not a rewriting of the contract.
Costs arising from duplicative suits
Filing two separate suits over a single cause of action involving two plots was unnecessary; costs and interest should accrue in only one file.
The claims concerning plots E and F arose from a similar cause of action between the same parties, made on the same date, and were consolidated by consent in the trial court. The duplication convoluted the proceedings, so costs and interests were confined to one file.
Legal principles established
#- Courts should not rewrite contracts between parties; parties are bound by their contractual terms unless coercion, fraud or undue influence are pleaded and proved.
- On a first appeal, the court must re-evaluate, re-assess and re-analyse the evidence and determine whether the conclusions of the trial court should stand.
Court orders
#- 1.The appeals against the judgments in CMCC 142 of 2018 and CMCC 143 of 2018 are dismissed insofar as the trial court's judgments are not disturbed
- 2.The award on costs in CMCC 143 of 2018 is set aside
- 3.Costs and interest to accrue only in one file, Appeal No. E001 of 2025 and CMCC 142 of 2018
- 4.Costs of the appeal awarded in file No. E001 of 2025
- On appeal from
- Chief Magistrate's Court, Nanyuki
- CMCC 142 and 143 of 2018 (judgment of 28.5.2021)
- Jurisdiction invoked
- First appeal from the Magistrate's Court under the Environment and Land Court Act (dispute relating to land, transferred from the High Court HCCA Nos. 8 and 9 of 2021)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimaru v Salim (Environment and Land Appeal E001 & E005 of 2025 (Consolidated)) [2026] KEELC 3565 (KLR)", Case Analysis (2026). ELCLA No. E005 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3565/eng@2026-06-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.