Mokaya v Juma & another (Environment and Land Case E110 of 2025) [2026] KEMC 653 (KLR)
The bottom line
#A Bungoma court ordered a land seller to refund a buyer's deposit and pay damages, but refused to enforce a harsh penalty clause doubling the purchase price.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defendants breached the Sale Agreement dated 06th July 2021
The Defendants breached clause 5(2) by failing to give vacant possession upon execution of the agreement; their own testimony admitted the breach, entitling the Plaintiff to rescind.
The court read clause 5(2), which required vacant possession on execution, and found the Defendants instead insisted on full payment first. Their testimony admitting this was an admission of breach. A party is in breach if they fail to fulfil any obligation under the agreement. The Plaintiff was entitled to rescind via the rescission letter dated 01st February 2024, and could not be faulted for withholding the balance of the consideration.
Whether the Plaintiff was entitled to liquidated damages of Kshs. 2,000,000/= under clause 11(3)
Clause 11(3) was held unenforceable for unconscionability; the award of twice the purchase price against a quantifiable loss of Kshs. 311,500/= would be unduly harsh.
The court acknowledged the general rule against rewriting voluntarily executed contracts but invoked the reasonableness test and doctrine of unconscionability as exceptions, relying on Margaret Njeri Muiruri v Bank of Baroda (Kenya) Limited. The liquidated damages were pegged on the full consideration of Kshs. 1,000,000/= while the actual quantifiable loss was Kshs. 311,500/=, rendering enforcement grossly unfair.
Whether general damages were available for breach of contract
General damages of Kshs. 100,000/= awarded because the Defendants' conduct was oppressive, callous, outrageous and bordered on fraud.
Though general damages are generally not awarded for breach of contract, the court followed Delilal Kerubo Otiso and Openda v Ahn, holding that the Defendants' refusal to give vacant possession since 2021 while continuing to receive payments and demanding full payment before giving possession justified the exceptional award.
Whether the Plaintiff proved the claim for loss of user
Claim for loss of user rejected for want of particulars and strict proof; evidence could not be introduced through submissions.
Loss of user is special damages requiring specific pleading and strict proof. The Plaintiff generalized the claim, and only in submissions quantified five rental units fetching Kshs. 75,000/= monthly. Following Daniel Toroitich Arap Moi, submissions cannot substitute evidence, and in the absence of expert evidence the claim could not be sustained.
Liability as between the 1st and 2nd Defendants
The 2nd Defendant sold ½ acre from his share of the family land; only he is liable for the remedies, the 1st Defendant having been joined out of abundance of caution as registered owner.
The agreement on record was explicit that the 2nd Defendant was the vendor of ½ acre to be excised from his share of the suit property owned by his father, the 1st Defendant. Consequently the court confined the refund and general damages orders to the 2nd Defendant.
Legal principles established
#- A liquidated damages clause that is unconscionable, unduly harsh, commercially unreasonable and grossly unfair relative to actual loss may be declined by the court as an exception to the rule against rewriting contracts.
- General damages may be awarded for breach of contract where the breaching party's conduct is oppressive, high-handed, outrageous, callous, underhand and borders on fraud.
- A claim for loss of user is a claim for special damages and must be specifically pleaded, particularized and strictly proved; submissions cannot take the place of evidence.
Court orders
#- 1.A declaration is hereby issued that the 2nd Defendant is in fundamental breach of the Sale Agreement dated 06th July 2021
- 2.The 2nd Defendant is ordered to refund the Plaintiff Kshs. 311,500/= forthwith
- 3.The Plaintiff is awarded general damages of Kshs. 100,000/= to be borne by the 2nd Defendant
- 4.The refund of Kshs. 311,500/= will earn interest at court rate from the date of filing suit till payment in full
- 5.General damages will earn interest at court rate from the date of judgment till payment in full
- Jurisdiction invoked
- Original civil jurisdiction of the magistrates' court over contract/land sale disputes (no specific provision cited)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mokaya v Juma & another (Environment and Land Case E110 of 2025) [2026] KEMC 653 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/653/eng@2026-08-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.