Wandera v Kinuthia (Environment and Land Appeal E013 of 2025) [2026] KEELC 4254 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Refund of the full purchase price
Refund of Kshs. 500,000/- with interest upheld; the appellant's claim of partial payment was an afterthought
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.
Expenses awarded as special damages
Set aside because not specifically pleaded nor strictly proved by receipts
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.
Specific performance
Not granted; refund ordered instead
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.
Legal principles established
#- 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
#- 1.Appeal allowed in part
- 2.Award of Kshs. 102,000/- (surveyor's fees), Kshs. 25,000/- (fencing costs) and Kshs. 74,510/- (agreement fees) set aside
- 3.Refund of Kshs. 500,000/- purchase price with interest from date of filing suit until payment in full upheld
- 4.Costs order of the lower court upheld
- 5.Each party to bear their own costs of the appeal
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.