Langata Community & 13 others v Optiven Limited & another (Environment and Land Case 8 of 2022) [2025] KEELC 7209 (KLR)

JUDGMENT 1. By way of a Plaint dated 27th April 2021, the Plaintifis claim that the 1st and 2nd Defendants jointly carried out an investment in agribusiness with the aim of selling the investment to the Plaintifis. Through contracts between the Plaintifis and the Defendants signed between 3rd July 2017 and 12th May 2018, the Plaintifis agreed to buy into the investment which comprised of parcels of land and greenhouses under the Defendants management in a project referred to as ‘Kilimo Tujijenge.’ It was a term of the agreement that upon completion of payment, each Plaintifi would receive a plot of land containing a managed greenhouse which would fetch seasonal profits of Kshs. 175,000. 2. It is their case that, the Defendants failed to adhere to their contractual obligations. On 27th March 2018, the 2nd Defendant cancelled the contract but did not refund the Plaintifis money despite numerous requests. The Plaintifis thus claimed that the Defendants breached the contract; misrepresented to them the terms of the investment, expected returns and completion of the project; and acted fraudulently by selling a non-existent investment. 3. They therefore sought the following reliefs; a. Special damages for the Plaintifis at a total cost of Kshs. 13,340,000 and total cost of lost income of Kshs. 48,300,000. b. General damages c. Mesne profits d. Costs of the suit e. Interest on (a), (b) and (c) at Court rates. f. Any other relief that this Hon. Court may deem fit and just to grant. 4. The 1st Defendant in their Statement of Defence dated 15th June 2021 denied being in a joint venture with the 2nd Defendant. The 1st Defendant acknowledged that it sold specific parcels of land to the Plaintifis independent of any advertisements from anyone and that in the contract there was no obligation to construct greenhouses or avail any other investment opportunities. The 1st Defendant denied the allegations of fraud, misrepresentation or breach of contract. It maintained that it was a stranger to any contractual breaches between the Plaintifis and the 2nd Defendant. 5. The 2nd Defendant neither entered appearance or filed their defence despite evidence of service. 6. On the hearing day, only the Plaintifis were present. Evidence of the Plaintifis 7. PW1, Peter Muia Munandi Mutuku, representing the Plaintifis, adopted his witness statement dated 7th April 2021 as his evidence in chief and produced his bundle of documents as exhibits in this case. 8. At the close of the oral testimony, the Plaintifis filed their final written submissions. Submissions of the Plaintifi 9. Counsel for the Plaintifis submitted that the Plaintifis’ evidence was uncontroverted and had thus proved that the Defendants breached their contractual obligations. As such they were entitled to https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7209/eng@2025-10-15 2

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the prayers sought. Reference was made to the following cases: Dolores Collins vs Eng. John Okuna Okango eKLR, Mairy Valji v Janendra Raicharde eKLR and Alex Kipchirchir Rono vs Lamson Enterprises Limited eKLR. 10. At the time of writing this Judgement, the 1st Defendant had not filed its submissions. Analysis and Determination 11. I have considered the pleadings, the evidence on record, the written submissions, and the authorities cited. I find that the issues for determination are: i. Whether the Plaintifis have proved their case on a balance of probabilities. ii. Whether the Plaintifis are entitled to the reliefs sought; iii. Who should bear costs of the suit? 12. In this suit, the Plaintifi has sought damages against the defendants on the grounds of breach of contractual obligations. The 1st Defendant denied that it was in any investment partnership or contractual relationship with the 2nd Defendant and the Plaintifis. It acknowledged that it sold some parcels of land to the Plaintifis. 13. The question before this court is whether the Plaintifis have proved that there was breach of contractual obligations by the Defendants to warrant issuance of the reliefs sought. 14. It is trite law that he who alleges must prove. Section 107 and 108 of the Evidence Act is clear that he who alleges must proof. It reads; “ Section 107(2): When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. Section 108: The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. “ 15. It is not in dispute that the 1st Plaintifi purchased a parcel of land from the 1st Defendant. To prove their case, the 1st Plaintifi produced an ofier letter from the 1st Defendant dated 5th December 2016. The ofier letter addressed to the 1st Plaintifi reads: “… Optiven Ltd ofiers to sell you plot No. J299 measuring ¼ of an acre (Kilimo Tujijenge Project) … at an investment price of Kshs. 490,000…” 16. They claim that the purchase price was paid and the parcel: Kajiado/Lorngosua/7659 measuring 0.1 hectares was registered on 11th May 2018in favour of the 1st Plaintifi’s through its Trustees. 17. It is also on record that the 1st Plaintifi paid the 2nd Defendant Kshs. 1,740,000 for purchase of six greenhouses and produced acknowledgement receipts in this regard. 18. To further support their claim against the 2nd Defendant that they made payments for greenhouses, the 1st Plaintifi produced a letter dated 3rd July 2017 from the 2nd Defendant, addressed to the 1st and 2nd Plaintifis. This letter confirms that the 2nd Defendant was in receipt of Kshs. 1,740,000 for six greenhouses. It also confirms that the project would begin in September 2017. 19. However, the letter dated 27th March 2018 from the 2nd Defendant’s Director but does not specify who it is addressed to, cancelled its contracts “with all the investors”. The letter reads in part: “… that as per communication, the project was to begin in June 2017 after completion of the infrastructure by the 1st Defendant. However, the 1st Defendant delayed the project due to unavailability of water as https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7209/eng@2025-10-15 3

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initially projected as well as dificult political climate in 2017…” The letter also stated that the project was further stalled by the suit of instituted against them by the 1st Defendant. 20. The 1st Plaintifi responded through their letter dated 19th November 2018 asking for a refund of Kshs. 2,010,384 which was Kshs. 1,740,000 paid for six greenhouses together with an interest of Kshs. 270,384. 21. There have been no other correspondences between the parties, save for demand letters dated 20th April 2018, 19th November 2018 and 16th November 2020 asking for refund of the money paid for the greenhouses. 22. This Court finds that there is proof that the 1st Plaintifi indeed paid for the six greenhouses but the same were not delivered as agreed. It is also on record that the 2nd Defendant cancelled the said contract for reasons already stipulated above. This only means that, once the contract was cancelled, then the Plaintifis ought to have been returned to their initial position to evade any further loss or damages. 23. Whereas, the 1st defendant denies being in a partnership with the 2nd Defendant, the contract dated 3rd July 2017 is between the 1st Plaintifi and both Defendants. In this agreement, the 1st plaintifi was to purchase land from the 1st defendant and invest Kshs. 290,000 for the “Kilimo Tujijenge” project. The 2nd Defendant was to Install greenhouses, provide farm management support for three years with each year having two seasons, purchase all the farm produce and make payments to the 1st Plaintifi. There is also an email addressed to the 2nd Plaintifi in October 2017 titled ‘Kilimo Tujijenge Journey’, where the 1st Defendant informed the 2nd Plaintifi of the progress and challenges of the project. 24. I am satisfied that the 1st and 2nd Defendants were in partnership. It is also on record that the 2nd Defendant received Kshs. 1,740,000 from the 1st Plaintifi for the purchase of the six greenhouses. 25. It is also on record that the following consents were recorded between some plaintifis herein and the 1st Defendant as follows: i. Consent dated 26th April 2022 between the 1st Defendant and the 3rd Plaintifi- Margaret A. Okello for payment of Kshs. 290,000, with each party bearing their own costs of the suit. ii. Consent dated 4th November 2022 between the 1st Defendant and the 7th Plaintifi- Serah Muthoni Kanyugo for payment of Kshs. 290,000, with each party bearing their own costs of the suit. iii. Consent dated 18th January 2022 between the 1st Defendant and the 10th Plaintifi- David Igogo Kinuthia for payment of Kshs. 290,000, with each party bearing their own costs of the suit. iv. Consent dated 12th January 2022 between the 1st Defendant and the 14th Plaintifi- Diana B. N. Tindi for payment of Kshs. 1,740,000, with each party bearing their own costs of the suit. v. Consent dated 22nd January 2022 between the 1st Defendant and the 12th Plaintifi- Betty Opiyo (Nawiri Queens) for payment of Kshs. 3,770,000, with each party bearing their own costs of the suit. 26. While the Plaint outlined persons who had allegedly purchased greenhouses from the Defendants, the only evidence produced was in regards to the 1st Plaintifi. He told the court that he was testifying on behalf of the remaining plaintifis. 27. This Court therefore finds that the 2nd – 9th, 11th - 13th Plaintifis are entitled to refund of the purchase of the greenhouses by the Defendants. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7209/eng@2025-10-15 4

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28. The Plaintifis also sought for mesne profits. However, this Court finds that mesne profits being akin to special damages, the same ought to have been specifically pleaded and proved as held by the Court of Appeal in Samaki Industries (K) Limited v Kenya Ports Authority [2024] KECA 794 (KLR). The relief for mesne profits is hereby declined. 29. I agree with the Plaintifis that they sufiered loss when the project did not take ofi. I award Kshs.500,000/= , general damages which I think is reasonable. 30. The upshot of the matter is that the Plaintifis herein have proved their case as against the Defendants on a balance of probabilities. 31. Accordingly Judgement is entered for each of the 1st, 2nd -9th, 11th – 13th Plaintifis as against the Defendants jointly and severally as follows; a. A refund of Kshs.290,000/=. b. General damages of Kshs.500,000/= c. Costs of the suit and interest. DATED, SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 15TH DAY OF OCTOBER 2025. L. KOMINGOI JUDGE In The Presence Of: Mr. J. Ngugi for the Plaintifis. N/A for the 1st Defendant. N/A for the 2nd Defendant. Court Assistant – Peter. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7209/eng@2025-10-15 5

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