Agostino v Kituyi (Civil Appeal E012 of 2025) [2025] KEELC 7177 (KLR)

e. Special Damages of Kshs. 380,000/=. f. Costs. g. Any other relief. 3. It was the Respondent’s case that Vide a contract for sale of land dated 25/06/2016, the Appellant sold to the him part of plot No.39, Cheptais market together with a developed residential house thereon at an agreed consideration of Ks. 480,000/=. That the Respondent and his family had been tenants in the said premises prior to the purchase from the year 2004 to June 2016. That according to the agreement, the tenancy terminated on 25/06/2016 when the purchase agreement was entered into. The Respondent averred that he paid the full purchase price and the Appellant was to execute all transfer documents and facilitate the sub-division of the plot to excise the purchased portion. 4. The Respondent averred that it was a further term of the Sale agreement that in the event of breach, the defaulting party would be liable to pay damages to the full extent of the loss sufiered and a penalty of 35% of the consideration. It was averred that the Appellant refused to give quiet and vacant possession to the Respondent in blatant breach of the said agreement. The Respondent further averred that he had made improvements to the premises to the tune of Kshs.380,000/= and as a result, he was entitled to the loss sufiered and 35% of the consideration. 5. The Appellant filed a statement of defence dated 28/08/2020 denying the Respondents claim and averred that he had not agreed to sub-divide the plot which he alleged was indivisible and is valued over five million. He further denied the particulars of breach set out in the plaint. He maintained that the relationship between him and the Respondent herein was a landlord-tenancy relationship and set out particulars of fraud against the Respondent for drawing a fake agreement, forging signatures and purporting to purchase a non-existent plot. He denied that the Respondent had made any development on the suit property and alleged that he had sued the Respondent for rent and utility arrears of Kshs.8000,000/= before the Business Premises Tribunal vide case no. 48 of 2018. 6. When the case came up directions before the trial court, the parties agreed to proceed by way of viva voce evidence with the Appellant calling one witness while the Respondent called three witnesses in total. 7. PW1 Caroline Khalayi Wanjusi testified that the Respondent is her husband. That the Appellant who was their landlord sold a plot in Cheptais to them. She adopted her witness statement dated 20/12/2020 as her evidence in chief. That together with her husband they purchased the plot for Kshs.480,000/= vide an agreement dated 25/06/2016 and build latrines at a cost of Kshs.380,000/ =. That at the time of the purchase they were not in any rent arrears. It was her evidence that the agreement was stamped by an advocate and witnessed by the Appellants son namely Micheal. She denied knowledge of the said tribunal case. 8. PW2 Saul Kituyi adopted his witness statement dated 23/11/2020 as her evidence in chief. That he entered into an agreement with the Appellant for the sale of Cheptais plot no. 39 for Kshs.480,000/= in instalments. He produced an agreement dated 25/06/2016 as PExhibit 1. He also produced images of developments made on the plot as PExhibit 2a, b & c. In cross examination he testified that he did not obtain the Land Control Board consent or survey the plot. He denied forging the agreement and the signatures therein and further denied having rent arrears. 9. PW3 Benson Biketi Wamukoa adopted his witness statement dated 23/11/2020 as his evidence in chief. He testified that he witnessed the sale of the plot and payment by signing the agreement dated 25/06/2016. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7177/eng@2025-09-25 2

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10. DW1 Moses Chembaus Agostino adopted his witness statement dated 20/12/2020 and testified that he is a doctor and director of Maendeleo Health Services. He testified that he had rented a room to the Respondent. He denied entering into any agreement with the Respondent and ever selling any portion of land to him. He stated that the Respondent had accumulated arrears of rent and utilities staring from the year 2007 to 2016 and only begun paying in instalments in the year 2016 in instalments. That the Respondent also has arrear of Kshs.220,000/= and there is an order for his eviction. 11. Upon analysing the evidence presented before her, the trial court entered judgment in favour of the Respondent for a total sum of Kshs.1,200,825/= plus costs of the suit. Submissions on the appeal. 12. After filing this appeal, directions were taken and the parties agreed to have the appeal canvassed by way of written submissions. 13. The Appellant filed submissions dated 04/06/2025 where he submitted that General damages are not recoverable in a Claim for breach of contract except in exceptional circumstances which in our view were not established by the Respondent herein. Reliance was placed in the case of In Sundowner Lodge Limited =VS= Kenya Tourist Development Corporation (2023) KECA) 1131 KLR, In Total (Kenya) Limited formerly Caltex oil (Kenya) Limited =VS= Janevams Limited (2015) KЕСА 822 (KLR), In Provincial Insurance Company East Africa Limited =VS= Nandwa LLR No. 887 (СAК) and In Habib Zurich Finance (K) Limited =VS= Muthoga & another (2002) 1 EA 81. 14. It was further submitted that though the Respondent pleaded for special damages of Kshs. 380,000/ =, the same was not specifically proved as it is clear from the proceedings that none of the receipts were produced as exhibits. He relied on the case of In Hahn =VS= Singh Civil Appeal No. 42 of 1983 1985 (KLR) 716 AT P; 717 & 721,In Kenneth Nyagea Mwige =VS= Austin Kiguta & Others (2015) eKLR. The Appellant further submitted that the dispute between the parties herein was already before the Business Premises Tribunal and any further reliefs ought to have been sought before that tribunal and that this suit was res judicata. 15. The Respondent filed submissions dated 30/06/2025 and submitted that the Appellant was duty bound to seek for forensic expert to prove that the signature was not his. He submitted that mere denial does not mean that he did not sign. In the case of UBA Kenya Bank Limited =V= Farm Transport and Technical Services Ltd & 5 Others (Civil Suit 286 Of 2013) [20241 КЕНС 2805 (KLR) (Commercial And Tax) (20 March 2024) (Judgment). It was further submitted that he was entitled to general damages as restitution for the monies he paid, for the penalty for breach of contract and special damages for the developments made on the suit property. He cited the case of Inclusive Agencies Limited V Maersk Kenya Limited [2018] eKLR.and Jamuto Enterprises Limited V County Government of Meru [2021] eKLR and Kimaru V Machira (Civil Appeal 22 Of 2021) [2023] КЕНС 2354 (KLR) (23 March 2023) (Judgment). Analysis and determination. 16. I have considered the entire record of appeal, the judgment of the trial court, the grounds of appeal and the Appellant’s submissions. It is noted that in the impugned judgment, the trial magistrate made a finding that she was satisfied on a balance of probabilities that the Respondent (Plaintifi)had proved his case to the required standard and entered judgment in his favour for a total of Kshs. 1,200,825/= plus costs and interest. 17. The singular issue for determination in this appeal in my view is whether the appeal is merited. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7177/eng@2025-09-25 3

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18. As a first appellate Court, this Court’s duty is to subject the whole of the evidence before the trial court to a fresh and exhaustive scrutiny and make its own conclusion, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand. The duty of the Court in a first appeal is as stated in Selle & another v Associated Motor Boat Co. Ltd. & others (1968) EA 123, that is to re-evaluate and re-assess the entire evidence with a view to arriving at proper conclusion of fact and independent conclusions. This position was also stated in the cases of Abok James Odera t/a AJ Odera & Associates v John Patrick Machira t/a Machira & company Advocates [2013] eKLR; and iMwana Sokoni v Kenya Bus Services Limited [1985]. 19. The guiding principles for this Court as a court of first appeal is that the court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions; secondly, in reconsidering and re-evaluating the evidence, the first appellate Court must bear in mind and give due allowance to the fact that the trial Court had the advantage of seeing and hearing the witnesses who testified before her and lastly, it is not open to the first appellate Court to review the findings of a trial Court simply because it would have reached difierent results if it were hearing the matter for the first time. 20. I have carefully re-considered and re-evaluated the record before the trial court and note that the evidence demonstrates that there existed a written agreement for the sale of a portion of Plot No. 39 Cheptais Market dated 25th June 2016 executed between the parties. The contract expressly indicates the subject matter of sale, the agreed consideration of Kshs. 480,000/=, and the obligations of each party. Importantly, the agreement was executed in writing and attested by an advocate, thereby complying with the requirements ofSection 3(3) of the Law of Contract Act which provides as follows: “ 3(3) No suit shall be brought upon a contract for the disposition of an interest in land unless — (a) (b) 21. the contract upon which the suit is founded— (i) is in writing; (ii) is signed by all the parties thereto; and the signature of each party signing has been attested by a witness who is present when the contract was signed by such party: See the case of Nelson Kivuvani vs Yuda Komora & Another, Nairobi HCCC No 956 of 1991, where the Court held that; “ the agreement for sale of land which contains the names of the parties, the number of the property, the purchase price and the conditions attached thereto, the obligations, express or implied, of each of the parties and signed and witnessed by two witnesses who signed against their names amount to a valid contract” 22. It was further established that the Respondent paid the sum of Kshs. 480,000/= as consideration. This payment was acknowledged in the agreement itself and was not rebutted by any evidence to the contrary. In law, once the purchaser has fully performed his part of the contract, the obligation now rests on the vendor to perform his part of the bargain by giving possession of the subject property in accordance with the agreement. 23. On the issue of validity, the Appellant averred that the agreement was forged and fraudulent. Under Order 2 Rule 10 of the Civil Procedure Rules, fraud is a serious crime which must not only be https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7177/eng@2025-09-25 4

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specifically pleaded but also strictly proved to a standard higher than a balance of probabilities and not as high as beyond reasonable doubt. In Kinyanjui Kamau v George Kamau [2015] eKLR, the Court of Appeal underscored that allegations of fraud must be backed by cogent and credible evidence. In the present case, no expert evidence such as forensic examination of signatures was tendered to demonstrate that the said agreement was forged. The Appellant’s bare assertions could not displace a written and attested agreement. The trial court was therefore correct in holding that the claim of fraud was unsubstantiated and incapable of invalidating the contract. 24. As regards the Appellant’s reliance on the proceedings before the Business Premises Rent Tribunal (BPRT) in Case No. 48 of 2018, this Court is of the considered view that those proceedings were unrelated to the subject matter herein. The Tribunal proceedings related to rent arrears allegedly due under a landlord–tenant relationship whereas the present suit revolves around a sale agreement for disposition of land. The jurisdiction of the BPRT is confined to landlord and tenant disputes and cannot extend to questions of ownership, validity, or enforcement of land sale agreements. The Tribunal’s findings therefore had no bearing on this suit. 25. On whether there was breach of the said Contract; Black’s Law Dictionary, 9th Edition, page 213 defines a breach of Contract as; “ a violation of a contractual obligation by failing to perform one’s own promised, by repudiating, or by interfering with another parties performance. A breach may be one by non-performance or by repudiation or both. Every breach gives rise to a claim for damages and may give rise to other remedies. Even if the injured party sustains no pecuniary loss or unable to show such loss with suficient certainty he has at least a claim for nominal damages”. 26. I find that the Respondent adduced credible evidence to show that despite paying the full consideration, the Appellant refused to give vacant possession or take steps to do subdivision and transfer. This was a clear breach of the vendor’s obligations under the contract and the Respondent is undoubtedly entitled to a refund of the consideration of Kshs.480,000/=. The Respondent further established that he had made improvements valued at Kshs. 252,825/=, which the Appellant did not contest with contrary evidence. By refusing to transfer or give possession, the Appellant unjustly retained both the purchase price and the benefit of improvements, contrary to the contractual terms. The agreement itself contained a penalty clause providing for damages and a penalty of 35% of the consideration in the event of breach. 27. On the issue of general damages for the in the case of James Maranya vs. South Nyanza Sugar Co. Ltd (2017) eKLR dealt with the issue of the remedies in breach of contracts and stated as follows;“ ..... It is well settled in law that general damages cannot be awarded on a claim anchored on a breach of contract. In afirming that position, the Court of Appeal in the case of Joseph Urigadi Kedeva vs. Ebby Kangishal Kavai Kisumu Civil Appeal No 239 of 1997 (UR) emphatically expressed itself thus:......As to the award of Kshs 250,000/= as general damages, Mr. Adere submitted that there can be no award of general damages for breach of contract......We respectfully agree. There can be no general damages for breach of contract...... https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7177/eng@2025-09-25 5

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28. The reason as to why general damages cannot be awarded in cases of breach of a contract was explained in the case of Consolata Anyango Ouma vs. South Nyanza Sugar Co. Ltd (2015) eKLR as follows: “ The next question is whether the appellant was entitled to damages as a result of the breach. As a general principle, the purpose of damages for breach of contract is, subject to mitigation of loss, the claimant is to be put as far as possible in the same position he would have been if the breach complained of had not occurred. This is principle is encapsulated in the Latin phrase restitution in integrum (see Kenya Industrial Estates Ltd v Lee Enterprises Ltd NRB CA Civil Appeal No 54 of 2004 [2009] eKLR, Kenya Breweries Ltd v Natex Distributors Ltd Milimani HCCC No 704 of 2000 [2004] eKLR). The measure of damages is in accordance with the rule established in the case of Hadley v Baxendale (1854) 9. Exch. 341 that the measure of damages is such as may be fairly and reasonably be considered arising naturally from the breach itself or such as may be reasonably contemplated by the parties at the time the contract was made and a probable result of such breach (see Standard Chartered Bank Limited v Intercom Services Ltd & Others NRB CA Civil Appeal No 37 of 2003 [2004] eKLR). Such damages are not damages at large or general damages but are in the nature of special damages and they must be pleaded and proved (see Coast Bus Service Ltd v Sisco Murunga Ndanyi & 2 others, NRB CA Civil Appeal No 192 of 92 (UR) and Charles C. Sande v Kenya Co-operative Creameries Ltd, NRB CA Civil Appeal No 154 of 1992 (UR).” 29. The remedy arising from breach of contract is therefore in the nature of special damages. It is settled that a claim on special damages must be specifically pleaded and proved. I therefore find that the trial court was erroneous in awarding Kshs.300,000/= in general damages for breach of contract. 30. In the premises, the appeal partially succeeds only to the extent that the award of Kshs. 300,000/= awarded as general damages for breach of contract is hereby set aside. The retained awards aggregate to a total sum of Kshs. 900,825/=, which shall stand as the decretal amount. 31. Each party shall bear their own costs of this appeal. 32. Orders accordingly. DATED AND SIGNED AND DELIVERED AT BUNGOMA THIS 25TH DAY OF SEPTEMBER, 2025 …………………………… HON.E.C CHERONO ELC JUDGE In the presence of; 1. Mr. Bw’onchiri for the Appellant. 2. Mr. Wamalwa R. for the Respondent. 3. Bett C/A. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7177/eng@2025-09-25 6

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