Barasa v Wanami (Civil Suit E235 of 2025) [2026] KEMC 715 (KLR)
The bottom line
#A Kenyan court dismissed both sides of a car sale dispute after finding both the buyer and seller breached the agreement, leaving each to bear their own costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defendant proved a variation of the payment deadline
The acknowledgment note referred only to 'other details to be discussed soon', which amounted to an anticipated contract incapable of proving variation of clause 4(b)
The acknowledgment note merely recorded receipt of Kshs. 200,000/= and contemplated further discussions whose details remained unknown. Relying on the 'subject to contract' principle, the court held no binding agreement varying the payment period arose, so the Defendant failed to prove an extension of time on a balance of probabilities.
Whether the Defendant breached the agreement
Yes; failure to pay the balance of the consideration by August 2024 was a fundamental breach
It was undisputed that the balance was not paid by the agreed deadline of August 2024. Payment of the balance was a condition under the agreement, and no valid variation was proved, so the Defendant's non-payment amounted to fundamental breach.
Whether the Plaintiff breached the agreement
Yes; the vehicle was encumbered to MyCredit Limited on the completion date, so the Plaintiff had no right to sell and could not pass title
Under section 14 of the Sale of Goods Act there is an implied condition that the seller has the right to sell the goods when property is to pass. The vehicle was repossessed by MyCredit Limited in February 2025 while in the Defendant's possession, showing it was encumbered on the August 2024 completion date, hence fundamental breach by the Plaintiff.
Whether the Defendant was entitled to a refund of Kshs. 777,100/= on unjust enrichment
No; the Defendant derived benefit from possession and use of the vehicle and led no evidence quantifying a lesser benefit, so the sum is not recoverable
Although both parties breached, rendering suit and counterclaim unsustainable, the Defendant kept the vehicle from May 2024 to February 2025. Having adduced no evidence that his benefit was less than the sum paid, the court declined to order any refund based on speculation and treated the payment as adequate compensation for use.
Legal principles established
#- A court's duty is to enforce the contract as made between the parties and not to rewrite it or read into it terms not expressly agreed
- An anticipated contract (subject to further agreement) is not enforceable and courts cannot supervise it
- A seller under a contract of sale implies a condition that he has the right to sell the goods at the time property is to pass
Court orders
#- 1.The Plaintiff's suit is dismissed
- 2.The Defendant's counterclaim is dismissed
- 3.Each party to bear their respective costs
- Jurisdiction invoked
- Original civil jurisdiction of the magistrates' court over the suit and counterclaim; not expressly stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Barasa v Wanami (Civil Suit E235 of 2025) [2026] KEMC 715 (KLR)", Case Analysis (2026). Not stated in the judgment (Plaint dated 21st May 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/715/eng@2026-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.