Omar v Kolonzo & 3 others (Environment and Land Case E079 of 2022) [2026] KEMC 75 (KLR)
The bottom line
#A Machakos court ordered an estate to sell a Konza plot to the original buyer after sellers tried to resell it at a higher price.
What this practically means
#Executive summary
#Key legal issues
#Validity of the written sale agreement under Section 3(3) of the Law of Contract Act and Section 38 of the Land Act
The agreement complied with the statutory formalities: it was in writing, signed by all four Defendants and the Plaintiff, and attested by an advocate and Commissioner for Oaths
The court examined Exhibit 1 against the formal requirements of Section 3(3) of the Law of Contract Act and Section 38 of the Land Act, 2012. It found the agreement comprehensive, specifying the property, parties and consideration, with signatures attested by Rahma Adan Jillo, an Advocate and Commissioner for Oaths. It therefore found full compliance with the statutory dictates.
Breach of the sale agreement by double sale
The Defendants' sale of the same property to third parties for Kshs. 3,900,000/- while the first agreement subsisted constituted fundamental breach and fraud
The Plaintiff proved payment of a Kshs. 2,000,000/- deposit through bank transfer and cash. The Defendants, unrepresented and ex parte, offered no evidence. Their subsequent sale of the same plot to Benjamin Ndavi Muia and others while the first agreement subsisted, and their advocates' letter seeking rectification of society records in favour of the new purchasers, amounted to fundamental breach and fraud on their duty as vendors.
Entitlement to specific performance as an equitable remedy
Specific performance was granted because the contract was valid, damages inadequate, and the Plaintiff had performed or shown readiness to perform her obligations
Relying on Njoroge v Maina [2023] KEELC 20295 (KLR), which quoted Gurdev Singh Birdi and Reliable Electrical Engineers Ltd. v Mantrac Kenya Ltd, the court held specific performance is discretionary and equitable, granted where damages are inadequate. The Plaintiff paid the deposit and showed consistent readiness to pay the balance, and the Defendants offered no evidence to challenge the claim; specific performance was therefore appropriate.
Burden of proof in an undefended suit
Even where evidence is uncontroverted ex parte, the plaintiff bears the legal burden of proving the case on a balance of probabilities
The court noted that the Defendants did not participate, leaving the Plaintiff's evidence uncontroverted. However, it emphasized that the burden of proof remains on the Plaintiff under Sections 107 and 108 of the Evidence Act, and assessed her exhibits - the sale agreement, bank transfer confirmation, allotment letter, letters of administration and the second sale agreement - against that standard before finding the case proved.
Legal principles established
#- No suit shall be brought upon a contract for the disposition of an interest in land unless the contract is in writing, signed by all parties, and each party's signature is attested by a witness present at signing
- Specific performance is an equitable remedy granted where damages would not be an adequate remedy, particularly in land contracts, where the claimant has performed or is ready to perform their obligations
- Even where a contract is valid and enforceable, specific performance will not be ordered where damages are an adequate alternative remedy or where it would cause severe hardship to the defendant
Court orders
#- 1.A declaration that the sale agreement dated 17th February, 2020, is valid and binding upon the parties.
- 2.An order of specific performance directing the Defendants to complete the sale of balloted commercial plot No. 0966, Konza Ranching and Farming Co-operative Society Limited, to the Plaintiff.
- 3.The Plaintiff is directed to pay the balance of the purchase price, being Kshs. 1,300,000/-, to the Defendants within the stated period in exchange for the completion documents.
- 4.A permanent injunction restraining the Defendants, their agents, or any person claiming under them from selling, transferring, or in any other way alienating the suit property to any third party other than the Plaintiff.
- 5.The Defendants shall pay the costs of the suit to the Plaintiff.
- Jurisdiction invoked
- Original civil jurisdiction of the Magistrates' Court over contract and land claims; suit for specific performance and permanent injunction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omar v Kolonzo & 3 others (Environment and Land Case E079 of 2022) [2026] KEMC 75 (KLR)", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/75/eng@2026-02-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.