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ELCPartially AllowedBusia CMC ELC Case No. E098 of 2021 (appeal therefrom)· [2026] KEELC 4254 (KLR)

Wandera v Kinuthia (Environment and Land Appeal E013 of 2025) [2026] KEELC 4254 (KLR)

Environment and Land Court
2 July 2026
2,510 words in judgment
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The bottom line

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A Kenyan land seller who keeps both the buyer's money and the land must refund Kshs 500,000, but unproven extra expense claims were struck out on appeal.

What this practically means

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Executive summary

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The respondent sued the appellant in Busia CMC ELC Case No. E098 of 2021 for specific performance of an agreement for sale of 0.05 ha comprised in Bukhayo/Mundika/9532 at Kshs. 500,000/-, or alternatively refund of the purchase price, expenses, special and general damages with interest. She pleaded that a survey showed only 0.034 ha was available and that the appellant agreed to make up the deficit from the adjacent parcel Bukhayo/Mundika/9530 but failed to transfer. The appellant admitted the sale but denied the re-negotiation and alleged the respondent had encroached on parcel 9530. The trial magistrate, holding the claim proved on a balance of probabilities, declined specific performance but ordered refund of Kshs. 500,000/-, Kshs. 102,000/- surveyor's costs, Kshs. 25,000/- fencing costs and Kshs. 74,510/- agreement fees, with interest and costs. On appeal, L. N. Waithaka J re-evaluated the evidence under the established first appellate standards. The court upheld the refund of the purchase price with interest, finding the appellant's partial-payment claim an afterthought never raised in his pleadings, witness statement or letters, and holding it inequitable and unjust for him to keep both the land and the money. However, the expense awards were set aside because they were not specifically pleaded nor strictly proved by receipts, and the magistrate had also misapprehended the claimed figure. The appeal partially succeeded; each party was ordered to bear their own costs of the appeal.

Key legal issues

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01

Refund of the full purchase price

Holding

Refund of Kshs. 500,000/- with interest upheld; the appellant's claim of partial payment was an afterthought

Reasoning

The trial magistrate properly directed herself. The appellant's defence, witness statement and letters never raised any unpaid balance, and in oral testimony he admitted being paid and stated he did not wish to transfer the land. A party cannot raise a new issue for the first time on appeal. Retaining both the land and the money is inequitable.

p. 5
02

Expenses awarded as special damages

Holding

Set aside because not specifically pleaded nor strictly proved by receipts

Reasoning

Though the plaint sought expenses, particulars were never pleaded and no receipts or documents were produced to prove payment. Awarding unpleaded and unproven expenses was an error of law warranting interference. Additionally, the trial magistrate misapprehended the claim, which per the witness statement was Kshs. 102,010/-, not the amount awarded.

p. 5
03

Specific performance

Holding

Not granted; refund ordered instead

Reasoning

The trial court declined specific performance and ordered refund of the purchase price, surveyor's costs, fencing costs and agreement fees. On appeal only the expense awards were disturbed; the refund of the purchase price with interest and the costs of the suit were affirmed as properly made.

p. 3

Legal principles established

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  • A first appellate court will not ordinarily interfere with findings of fact by the trial court unless they were based on no evidence, on misapprehension of the evidence, or the trial court acted on wrong principles
  • Special damages and costs under a breach clause must be specifically pleaded and strictly proved
  • A vendor who retains both the land and the purchase price acts inequitably and unjustly

Court orders

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  1. 1.Appeal allowed in part
  2. 2.Award of Kshs. 102,000/- (surveyor's fees), Kshs. 25,000/- (fencing costs) and Kshs. 74,510/- (agreement fees) set aside
  3. 3.Refund of Kshs. 500,000/- purchase price with interest from date of filing suit until payment in full upheld
  4. 4.Costs order of the lower court upheld
  5. 5.Each party to bear their own costs of the appeal

Authorities

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Cases cited (3)

  • Selle & Another vs. Associated Motor Boat Co. Ltd
    (1968) E.A 123
  • Mwanasokoni vs. Kenya Bus Service Ltd
    (1982-88)1 KAR
  • Kiruga vs. Kiruga & Another
    (1988) KLR 348
On appeal from
Busia Chief Magistrate's Court (ELC)
CMC ELC Case No. E098 of 2021
Jurisdiction invoked
First appellate jurisdiction over the subordinate court's decision (duty of a first appellate court to re-evaluate evidence)

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, "Wandera v Kinuthia (Environment and Land Appeal E013 of 2025) [2026] KEELC 4254 (KLR)", Case Analysis (2026). Busia CMC ELC Case No. E098 of 2021 (appeal therefrom). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4254/eng@2026-07-02

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