Emerg Investments Ltd v Kenya Farmers Limited
The bottom line
#A buyer who delayed paying for Nakuru land lost its entire claim because it couldn't prove its damages, even though the seller also breached the deal.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defendant breached the sale agreement by failing to deliver vacant possession
The Plaintiff was not entitled to vacant possession before paying the full purchase price, but the Defendant failed to deliver vacant possession within a reasonable time after completion
Clause 7 conditioned vacant possession on payment of the full purchase price. The Plaintiff admitted the balance was unpaid until July 2012, so it could not demand possession by 21st March 2012. However, DW1 admitted the Plaintiff had not been placed in possession by October 2012 and no handover occurred, so the Defendant was in default after payment.
Whether the Plaintiff is entitled to mesne profits
Claim dismissed; mesne profits not strictly proved
Mesne profits are special damages requiring pleading and strict proof. The claim from March 2012 failed because the Plaintiff had not then paid the full purchase price. The Extreme Cars letter of offer was not admitted in evidence, the Woolmatt lease commenced only in June 2013 after possession, and there was no evidence the Defendant wrongfully occupied the property or received rental income during the period claimed.
Whether the Plaintiff's unpleaded defence of delayed completion documents could excuse late payment
No; the claim was neither pleaded nor supported by documentary evidence
PW1 attributed the delay in payment to the Defendant's failure to supply completion documents under Clause 6.2, but this was not pleaded in the plaint, witness statement or correspondence, and no documentary evidence showed when the documents were due. Parties are bound by their pleadings, so the evidence was disregarded.
Whether the mandatory arbitration clause barred the suit
No; the objection was an afterthought as the Defendant submitted to jurisdiction
Although Clause 22 contained arbitration provisions and the Plaintiff admitted not declaring a dispute or issuing notice, the Defendant filed a defence, participated in the proceedings, never sought an order compelling arbitration and filed no objection to the hearing. The jurisdictional argument was therefore an afterthought.
Legal principles established
#- Parties are bound by their pleadings and evidence at variance with the pleadings must be rejected
- Mesne profits, being special damages, must be both pleaded and strictly proved
- The onus of proving mesne profits lies on the party claiming them
- A party who submits to jurisdiction and participates in proceedings without seeking to compel arbitration cannot later contend the suit was premature
Court orders
#- 1.The Plaintiff's suit is dismissed
- 2.Each party to bear their own costs
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a dispute relating to land (Nakuru Municipality Block 4/35)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Emerg Investments Ltd v Kenya Farmers Limited", Case Analysis (2026). ELC No. 56 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6111/eng@2026-10-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.