Musyoka v Nzomo & another (Suing as the legal representative of the Estate of James Makau Nzono - Deceased) (Environment and Land Appeal E020 of 2024) [2026] KEELC 3934 (KLR)
The bottom line
#A Kenyan land seller who refunds the purchase price without proving a valid rescission still loses: buyers can enforce the sale and claim damages.
What this practically means
#Executive summary
#Key legal issues
#Validity and enforceability of the sale agreement for the one acre to be excised from Land Parcel No. Mavoko Town Block 3/3155
The sale agreement was entered into willingly and is valid and enforceable; the Appellant adduced no evidence to prove otherwise
The court observed it was not in dispute that the Appellant entered into the agreement, which complied with the formalities of section 3(3) of the Law of Contract Act and section 38(1) of the Land Act - it was in writing, signed by the parties and attested by a witness. The Appellant, who asserted the agreement had been rescinded and the purchase price refunded, bore the burden of proving that assertion under sections 107, 108 and 109 of the Evidence Act and failed to discharge it.
Whether the Respondents were entitled to specific performance and damages
The Respondents fulfilled their part of the contract and were entitled to specific performance as well as damages for loss of user
The Respondents paid the full purchase price and took possession, fencing the land with barbed wire. It was not disputed that despite paying the full purchase price they were unable to utilise the land due to the Appellant's inaction. Although the Appellant denied destroying the fence, he admitted resuming ownership of the land after refunding the purchase price during the pendency of the suit. Specific performance is an equitable remedy requiring a party to perform contractual obligations rather than merely pay damages, and the Respondents had performed their part.
Standard of proof applied by the trial magistrate
The trial magistrate did not err in law or in fact in finding that the plaintiffs had proved their case on a balance of probabilities
The court found that the plaintiff's evidence - the sale agreement dated 5th March 2015, proof of payment by RTGS and two banker's cheques, and the fence erected on taking possession - discharged the burden of proof on a balance of probabilities. The Appellant's assertion of rescission and refund did not displace this, particularly as the refund was made into the late James Makau's bank account and the suit was defended by the 1st Respondent.
Legal principles established
#- On a first appeal, the court's role is to re-evaluate, re-assess and re-analyse the evidence and decide whether the trial court's conclusion was sound
- An appellate court will not interfere with a lower court's exercise of discretion unless the decision is clearly wrong, having misdirected itself or acted on or failed to consider relevant matters
- The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence - he who asserts must prove
Court orders
#- 1.The appeal is dismissed with costs
- 2.The judgment of the Hon. B. Ojoo dated 25th April 2024 in MCELC No. 16 of 2018 (Mavoko) is upheld
- On appeal from
- Chief Magistrate's Court, Mavoko
- MCELC No. 16 of 2018 - Martin Mutuku Nzomo & Another vs Damian Musyoka
- Jurisdiction invoked
- First appeal from the Chief Magistrate's Court under the Environment and Land Court Act (not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Musyoka v Nzomo & another (Suing as the legal representative of the Estate of James Makau Nzono - Deceased) (Environment and Land Appeal E020 of 2024) [2026] KEELC 3934 (KLR)", Case Analysis (2026). Appeal against Mavoko MCELC No. 16 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3934/eng@2026-06-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.