SMBN

2. 3. b. A mandatory injunction ordering the defendants, including their servants, agents, heirs, and dependents, to vacate the property known as land portion number 9663 (Original Number 8409/9) Malindi within 30 days of the date the order is issued. c. That in the event the defendants do not comply with prayer number (a) above, this honorable court shall issue an eviction order against the defendants, their servants, agents, and dependents from the property known as land portion Number 9663 (Original Number 8409/9), Malindi. d. A permanent injunction should issue against the defendants, their servants, agents, heirs, dependents, or any other person claiming through them, to prevent trespassing on the property known as land portion Number 96639 (Original Number 8409/9), Malindi. e. The court orders the defendants to pay the plainti mesne prots of KShs. 400,000 per month from December 31, 2019, to the present, representing the rent the plainti would have received if the property had been leased to the defendants lawfully. f. Interest calculated at court rates from the date the suit is led. g. Costs of the lawsuit. The 1st, 6th, and 7th defendants submitted a defense and counterclaim seeking the following remedies: a) ) Specic performance of the agreement dated 31st December 2018, compelling the 2nd Defendant to receive the balance of the purchase price and sign all necessary transfer documents, and, in default, directing the Deputy Registrar of this Court to execute all necessary documents to ensure the transfer of Land Portion Number 9663 (Original Number 8409/9) Malindi to the Plaintis in the Counter Claim. b) In the alternative, special damages, together with interest as pleaded at paragraph 35 of the Defence & Counter-Claim, at commercial rates prevailing from time to time from 31st December 2018 until payment in full. c) A declaration that the 2nd Defendant in the Counter Claim breached the terms of the contract dated 31st December 2018. d) General damages for breach of contract. e) Costs of this suit and the Counter Claim, and interest thereon at court rates. f) Such further or other reliefs as may be appropriate in the circumstances. The 2nd, 9th, and 10th defendants led an amended defense and a counterclaim seeking the following prayers: a. Specic performance of the agreement dated December 31, 2018, by requiring the 2nd defendant to accept the remaining purchase price and sign all necessary transfer documents. If the 2nd defendant defaults, authorize the Deputy Registrar of this court to execute all necessary documents to ensure the transfer of land portion Number 9663 (original Number 84009/9) in Malindi to the plaintis in the counterclaim. b. In the alternative, refund of expenses pleaded under paragraph 33 of the counterclaim. c. A statement that the sale agreement dated December 31, 2018, was violated by the defendants in the counterclaim. d. Costs and interest. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18617/eng@2025-12-16 2

page 2 of 12

4. 5. The 3rd, 4th, 5th, and 8th defendants led a defense and a counterclaim seeking the following reliefs: a. A declaration that the plaintis’ act of interfering with the defendants’ quiet possession and occupation of the suit property violates Constitutional rights and entitles the defendants to a refund of expenses spent on improvement. b. Specic performance for the transfer of the property to the defendants. c. A permanent injunction restraining the Plainti from evicting or interfering with the defendants’ occupation of the suit property. d. Special damages under Article 23[3] of the CoK for the value of the land, renovation costs, e. General damages. f. A declaration that the defendants are entitled to remain on the property until the refund in full. g. Interest on amounts above. h. Any other relief. i. Costs The matter proceeded to a full hearing. After both sides presented their cases, the court directed the parties to submit written arguments. I acknowledge receipt of the submissions from the learned counsel for the plainti, Mr. Mwanzia. I also appreciate the submissions from the counsel representing the 1st, 6th, and 7th defendants, Mr. Kilonzo; the learned counsel for the 2nd, 9th, and 10th defendants, Mr. Nyongesa; and the learned counsel for the 3rd, 4th, 5th, and 8th defendants, Ms. Chepkwony, as their submissions signicantly contributed to the resolution of the issues raised in this matter. Plainti ’s Case 6. Doris Kache Kaingu (PW1) relied on her witness statement as her main evidence. She also presented the documents listed on her document list dated 16 June 21 as Exhibits 1-4. In summary, her testimony was that the sale agreement dated 31 December 2018 was entered into by Doris Kaingu Kache and the defendants without the plainti's authority or consent. She noted correspondence dated 16 July 2019, 22 July 2020, and 12 March 2021 between the defendants and Doris Kache Kaingu, in which it was acknowledged that Doris Kaingu Kache lacked the capacity to enter into the agreement dated 31 December 2018, rendering it null and void. 7. During cross-examination by Mr. Kilonzo, she stated that she led the case as a representative of Maria Serena, who was then 19 years old, and she did not seek court approval before ling. Serena Maria is now an adult, but she has not moved the court to proceed with her case independently. 8. She also said she verbally disclosed to the parties and the lawyer who drafted the agreement that the minor had a share in the property. She admitted that the property was initially a church and garage, and she permitted the defendants to occupy and convert it into a hospital. She claimed to be aware that the defendants purchased the property to use as a hospital. She also mentioned that, after two years into the agreement, the defendants approached Equity Bank for nancing, and the issue of her capacity was raised. She said she discussed capacity with Raymond Kithi and that she obtained trusteeship in February 2021, paying Muli Ole Kina Advocates for the court orders. 9. During cross-examination by Ms. Chepkwony, she conrmed that the agreement dated December 31, 2018, shows she owns the land along with her husband. She also mentioned the money she received. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18617/eng@2025-12-16 3

page 3 of 12

10. During cross-examination by Mr. Nyongesa, she stated that, as of 2018, the minor had no trustee. She said that in 2018 her husband had died. She explained that there was correspondence regarding her capacity, and she came to Kenya to establish her capacity to proceed with the sale. She stated that she was willing to cooperate and move forward with the sale. 11. She admitted that she sent an email to the defendants and Ole Kina advocate, agreeing that the defendants would provide funds to help her gain capacity. She said she received the purchase price, both for herself and on behalf of her daughter, and that her daughter had no objections to her receiving it. 12. During re-examination by Mr. Mwanzia, she stated that the minor declined to sell because she was tired and wanted to go back home. She explained that the agreement was for her and her daughter, Serena Maria. She said that when she obtained the trusteeship order to gain the capacity to sell in 2021 before Justice Nyakundi, she did not disclose that she had entered into a sale agreement binding a minor. She also returned to court to obtain a second order amending the rst trusteeship order because her daughter no longer wanted to sell and PW1 had not informed the court of the agreement. She admitted receiving money from the defendants and would conrm the exact amount later. She mentioned that on February 15, 2021, she received money on behalf of the minor after the court issued the order to sell the land. She explained that after this court order, she disagreed with the defendants, and her daughter became upset about the sale and no longer wanted it. Defendants’ Evidence 13. Raymond Kithi Kaloki (DW-1) adopted his witness statement dated 21 April 22 and produced the documents on the list of documents as exhibits 1-55. He stated that their common advocate informed them that PW1 and her husband jointly owned the property and that, following her husband's death, the property had passed to PW1 under survivorship. In 2020, they discovered a minor and asked PW1 to obtain trusteeship. 14. During cross-examination by Mr. Mwanzia, he stated that they conducted due diligence and that the purchase was made jointly by the defendants. The due diligence revealed that the property was in the names of Doris Kache Kaingu and Ugo Nolli, who later passed away, and that it was transferred to Kache. They later learnt of the minor’s interest in the property in 2020, and Dorris Kache disclosed that Ugo Nolli’s interest had been transferred to the minor. He stated that the defendants have paid a total of Kshs. 5,800,000 to Dorris Kache Kaingu. 15. David Ngumbao (DW-2) adopted his witness statement dated 16 March 22 and presented the documents listed on that date as exhibits 56-72. 16. During cross-examination by Mr. Kilonzo, he stated that the defendants' advocate and the seller conducted due diligence. He also stated that the land was registered in the names of Dorris Kache and Ugo Nolli. They signed the agreement with Dorris Kache Kaingu because Ugo Nolli had passed away, and the property had passed to her as the sole owner. They became aware of the minor’s interest in the land when they engaged Equity Bank for nancing. The trusteeship was intended to allow her to act for the minor. When she obtained the order, she demanded more money from the defendants and later changed the trusteeship order to permit her to sell or lease. 17. Upon cross-examination by Mr. Mwanzia, he said that they were not in breach of the agreement. At the time of the agreement, Tosha Hospital Ltd did not exist. 18. Georey Nyagemi (DW-3) adopted his witness statement dated March 1, 2022, and produced the documents on the list as exhibits 73-117. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18617/eng@2025-12-16 4

page 4 of 12

19. During cross-examination by Mwanzia, he stated that there is a High Court order preventing the trustee from selling the property. Tosha Hospital Limited operates the hospital, which is equipped with medical equipment valued at Kshs 18 million. They are claiming the equipment. He also mentioned that some installments in the sale agreement had not been paid as planned, with the last installment due in June 2023. 20. Upon re-examination, he stated that, although the last installment was supposed to be paid in June 2023, the case was led in 2021. They had machines in the hospital, and it was Dorris Kache Kaingu who allowed them to set up the hospital. Analysis and determination 21. Based on the foregoing, after considering the evidence on record and the submissions by counsels for the parties, the issues I frame for this court's determination are whether the agreement between the parties is void, whether the agreement was breached and by whom, whether the plainti is entitled to the orders sought in the plaint, whether the defendants are entitled to the orders sought in their respective counterclaims, and costs. Whether the agreement between the parties is void 22. Mr. Mwanzia contends that the defendants admitted, both through their pleadings and in a letter dated 22nd July, 2020, that Doris Kache Kaingu lacked the capacity to enter into the agreement for sale dated 31st December, 2018, and that the agreement is null and void. Given the undisputed fact that Doris Kache Kaingu lacked authority to sell and/or act for Serena Maria Benedetta Noli, it follows that the agreement for sale dated 31st December, 2018, is null and void and not capable of enforcement. See Angelina Kalamba Mwasi & 5 others v Mbaruk Ayub Ali Mbaruk [2020] KEELC 2259 (KLR). 23. He also claims that some defendants argue that the plainti ratied the sale agreement dated 31st December, 2018, thereby making it binding and enforceable. However, he believes that, based on the evidence and the circumstances of the case, this argument is not valid. He likened it to preincorporation agreements of a company. In Kenya, a company must formally ratify a pre-incorporation contract after incorporation. The legal rules for pre-incorporation agreements and ratication are detailed in Consolidated Chemicals Ltd v KEL Chemicals Ltd [1981] KECA 3 (KLR). 24. He further notes that it is not in dispute that no new contract was executed by the parties to ratify the agreement for sale dated 31st December, 2018. However, the defendants argue that Doris Kache Kaingu's obtaining the order of guardianship and trustee for Serena Maria ratied the agreement. He disagrees. The order issued on 14th June, 2021, in Malindi High Court Civil Case No. 1 of 2021 (OS); Doris Kache Kaingu v Doris Kache Kaingu (as trustee of SBN), debarred sale instead allowed leasing. 25. Mr. Mwanzia further opines that the order does not authorize Doris Kache Kaingu to sell the suit property on behalf of Serena Maria Benedetta. As such, even if the parties had drawn up a new contract, the agreement would still be null and void because of the conditions set out by the court when issuing the order of trusteeship. It is important to note that during the hearing, the defendants attempted to question the trustee orders issued by the High Court; however, the Environment and Land Court lacks jurisdiction to entertain such issues. The defendants ought to have moved the High Court to vary and/ or set aside the said orders if they so wished. 26. Lastly, the defendants have argued that Doris Kache Kaingu ought to have sought leave before ling the suit on behalf of Serena Maria Noli. However, in his view, that was not necessary, since Doris Kache https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18617/eng@2025-12-16 5

page 5 of 12

had already been appointed trustee by the High Court and had the power to act as such. The powers of a trustee include initiating legal proceedings. 27. Mr. Kilonzo, for the 1st, 6th, and 7th defendants, avers that during the trial of this matter, the plainti conrmed receiving payment on her own behalf and on behalf of the minor after the parties reached a mutual agreement regarding the payment of the consideration for the suit property. That, as a sign of good faith, the plainti and the defendants further agreed to nance the process of obtaining the trusteeship deed and the guardianship as an attempt to ratify the sale agreement. The defendant paid the rm of Muli and Ole Kina a sum of KShs. 350,000/-, and receipts were issued, which were produced during the hearing of the defendant’s case. That, after the plainti obtained the trusteeship deed and/ or authority from the court on the 28th January, 2021, the defendants informed the plainti of their willingness to clear the balance of the purchase price before the completion date. 28. Mr. Kilonzo argues that, according to the record, it is the plainti who reneged on the agreement; therefore, the agreement is not null and void. 29. Mr. Nyogesa, for the 2nd, 9th, and 10th, defendants contend that the plainti's claims in her statement and pleadings alleging the agreement was null and void due to the defendants' correspondence stating so are unsubstantiated. Her admission that her daughter merely became upset with the defendants and subsequently refused to sell further, without providing any reasons, and that she (PW1) later demanded Kshs 60 million, after which her daughter expressed disinterest in selling, leads to the conclusion that she was in breach of the agreement. 30. Regarding the orders sought in the plaint, Mr. Mwanzia asserts that, having demonstrated that the agreement for sale dated 31st December, 2018, is null and void, the plainti is entitled to the declaration sought and orders sought in the plaint. 31. Ms. Chepkwony, for the 3rd, 4th, 5th, and 8th defendants, avers that the agreement entered into by the parties was binding and that Doris Kache made misrepresentations to the parties, leading to their undertaking massive development on the land. She focused mainly on the breach, as will be shown below. 32. The plainti (Doris Kache Kaingu) and the defendants entered into sale agreement 31st December 2018, under which the defendants bought the property known as Land Portion Number 9663 (Original Number 8409/9) Malindi together with the xtures and ttings standing thereon, at a consideration price of Kenya Shillings Thirty-Nine Million (Kshs. 39, 000,000/-), which was to be paid as follows: a. A deposit of Kshs. 1, 6000, 000/= to be paid on or before the execution of the agreement. b. A sum of Kshs. 400,000/= to be paid on or before 31st January 2019 c. The sum of Kshs. 50,000/= to be paid on or before the 5th of each month as monthly installments towards the purchase price, prior to the completion date. d. A sum of Kshs. 7, 800,000/= being 20% of the balance of the purchase price on or before 31st December 2019. e. A sum of Kshs. 5, 720,000/= being 20% of the balance of the purchase price on or before 30th June 2020 f. A sum of Kshs. 4,576,000/= being 20% of the balance of the purchase price on or before 31st December, 2020. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18617/eng@2025-12-16 6

page 6 of 12

g. The sum of Kshs. 3,600,800/= being 20% of the balance of the purchase price on or before 30th June 2021. h. A sum of Kshs. 2, 820,640/= being 20% of the balance of the purchase price on or before 31st December 2021. i. A sum of Kshs. 2,196,512/= being 20% of the balance of the purchase price on or before 30th June, 2022. j. A sum of Kshs. 1,697,210/= being 20% of the balance of the purchase price on or before 31st December 2022. k. A sum of Kshs. 3,244,420/= being 50% of the balance of the purchase price to be paid on or before 30th June 2023. l. The remaining balance of Kshs. 2,644,420/= is payable in full upon execution of the transfer of the suit property to the defendants. 33. According to the record and the admissions of all parties, the title document was in the name of Doris and her late husband, Noli. At the time of execution, she was the sole owner, and her daughter, Serena Maria, was entirely out of the picture. 34. After the execution and payment of the deposit, the defendants took possession and still retain possession and control of the property known as Land Portion Number 9663 (Original Number 8409/9) in Malindi, together with the xtures and ttings standing thereon. 35. While the defendants were making further payments through their nancier, Equity Bank, the issue of the minor arose. The bank conducting due diligence discovered that the other share held by her deceased father had been transferred to her. The record then shows that the parties, in furtherance of the agreement, agreed that Doris obtain trusteeship and guardianship to avoid the agreement becoming void. In that respect, the defendants paid the costs of ling the matter and the trusteeship and guardianship orders. After the court's orders, Doris continued to receive the purchase monies on behalf of the minor and herself. 36. On January 28, 2021, after the plainti had obtained the trusteeship documents authorizing her to sell the suit property, the defendants herein, in readiness to clear the balance of the purchase price, requested that the plainti provide a statement of account showing what had been paid as of January 28, 2021, and what was owing, so that their bank could nance them in clearing the balance. The plainti declined to provide the requested statement of account and attempted to rescind the contract. 37. Doris, in reneging on the agreement, went to court and amended the agreement unilaterally on June 14, 2021, in Malindi High Court Civil Case No. 1 of 2021 (OS); Doris Kache Kaingu v Doris Kache Kaingu (as trustee of SBN). The orders were amended as follows: “ THAT the order number “c” of the orders made on 28th January, 2021, be and is hereby reviewed by deleting the word “sell” so that the order reads that the Applicant be and is hereby authorized to by this court to sublet the property known as land portion number 9663 (Original Number 8409/9) Malindi.” 38. Vendors are required to disclose all material facts they know to buyers. The original agreement clearly indicated that Doris was the sole owner of the suit property following her husband's death and had the capacity to handle matters related to the property at that time. The question of her incapacity arose only later; it became known that her late husband's share had been transferred to the minor, https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18617/eng@2025-12-16 7

page 7 of 12

and through their actions—such as the defendants paying legal expenses—they implicitly agreed that she had obtained trusteeship and guardianship, which she did. However, she later cleverly unilaterally changed the terms of the trusteeship and guardianship to prevent her from selling to leasing the property, ostensibly under the minors' direction and in accordance with the amended guardianship orders. 39. This unilateral act obviously put the defendants in a precarious position, as they had undertaken massive development on the property, including placing a hospital and equipment, as shown in the counterclaims. 40. In my view, the later unilateral change by Doris to the trusteeships and guardianships document does not render the agreement between the parties void. Instead, it shows Doris's fraudulent acts to avoid the deal. It is therefore my nding that the agreement between the parties is not void, as will be further discussed under the next heads of the issues under consideration. Whether the agreement was breached and by whom 41. The plainti avers that since the agreement was void, it is unenforceable, and the issue of breach does not arise. 42. Among the breaches that the defendants/ counterclaimants are complaining of are averments that the plainti: a. Breached the terms of the sale agreement by declining to give the statement of account and attempting to rescind the contract illegally. b. Attempted to illegally rescind the contract even though she was the one illegally in breach. c. Fraudulently amended trusteeship and guardian ad litem orders dated January 28, 21, with the intent to defeat justice. d. Failed to provide a statement of account to enable the plaintis to facilitate payment of the balance of the purchase price. e. Failed to accept the balance of the purchase price. f. Arbitrarily and illegally demanding a new sales agreement with a new purchase price. 43. It should not be forgotten that, as explained above, Doris had the capacity to sell the suit property. When the issue of guardianship/trusteeship arose, it was mutually resolved, and she obtained the necessary orders to proceed with the sale, only to change them unilaterally later to suit her at the defendants' detriment. The orders obtained from the High Court were clearly designed to avert completion of her bargain. I do not agree that the defendants needed to move the High Court to set them aside. Instead, they have shown that she acted in bad faith, having initially entered into a sale agreement with clear conditions and terms, then unilaterally rendering it void. She cannot have the cake and eat it at the same time. 44. Doris thus breached the sale agreement. She breached the warranties and conditions voluntarily undertaken in the Agreement of 31st December 2018. She specically breached Article 15.2, ‘conferment of clean title/capacity to sell,’ of the Sale Agreement. She warranted that there was no adverse claim on the property, no dispute regarding ownership, and no boundary, easement, rightof-way, or other matters. Subsequent events proved this undertaking was patently false and a clear breach of the contract. Article 15.5, ‘Disclosure of material information,’ required her to disclose to the purchasers, to the best of her knowledge, all material information concerning the property. She clearly https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18617/eng@2025-12-16 8

page 8 of 12

did not do this. Article 15.7, ‘Disclosure of breach of warranties,’ required her to disclose in writing to the purchaser any event or circumstance that may arise or become known to them after the date of the agreement and before the completion date that is inconsistent with any of the warranties, that, had it occurred on or before the date of the agreement, would have been a breach of the warranties, or that is material to be known by the purchasers for the value of the property. She did not do this. Article 21, ‘Indemnity,’ provides that she was to indemnify and keep indemnied the purchasers from and against any loss, damage, costs, expenses, demands or liability, whether directly or indirectly arising out of or in any way in relation to any act, neglect or default on the part of the Vendor in the performance or purported performance or non-performance of the agreement. Article 22, ‘Intention to be bound,’ provides that the parties agreed and conrmed, for the purposes of the Law of Contract Cap 23, laws of Kenya, that they have executed the agreement for sale with the intention to bind themselves to the contents thereof. Whether the plainti is entitled to the orders in the plaint, and whether the defendants are entitled to their counterclaims. 45. Regarding the orders sought in the plaint, Mr. Mwanzia asserts that, having demonstrated that the agreement for sale dated 31st December, 2018, is null and void, the plainti is entitled to the declaration sought and orders sought in the plaint. 46. On the part of the defendants, through their counsels extensively submitted, citing the law and judicial precedents, that the plainti breached the agreement and, at a glance of the several clauses in the agreement, that Doris Kache Kaingu misrepresented throughout as the sole owner of the suit property. She has breached several warranties in the agreement to the detriment of the defendants; hence, they are entitled to the orders sought in the respective counterclaims. 47. In considering the remedies available, the court will consider the current situation and the initial agreement, including the variations after the orders of trusteeship, so that each of the parties should be placed on a pedestal that does not disadvantage the other. This balanced approach aims to ensure fairness and justice for all parties involved, including the defendants' investments and the plainti's claims. 48. PW1 admitted receiving money pursuant to the sale agreement. The defendants have produced proof that she received a total of KShs. 5,800,000/=. Consequently, as already found, all the prayers sought by the plainti cannot be granted because that would allow the plainti to hold the land/suit property and the purchase price, which is inequitable. The defendants were put in possession of the property by the plainti pursuant to the sale agreement. They have built a hospital at great cost and have many delicate hospital machines, as DW-3 explained. And as counterclaimed, which shows the defendants' investment in the suit property. It would be a huge inconvenience, hardship, and loss for them to be told to move away when there is no breach of the agreement on their part. 49. The allegation that they refused to pay the remaining installments is not valid. Under the agreement, the last installment was due in June 2023, but the plainti led this suit before that period and declined to take the agreed purchase price. They have always been ready and willing to pay the balance of the purchase price. The plainti, without any reason, refused to take the balance of the purchase price. 50. In Macho & another v Athuman & 2 others [2025] KECA 2078 (KLR), which holds that the principle that contracts freely and voluntarily entered into must be honored remains central to the law of contract. This principle, often captured by the phrase freedom of contract, recognizes that persons, through voluntary exchange, should take responsibility for the promises they make and have their contracts enforced. Every party to a binding agreement that is ready to perform its own obligation https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18617/eng@2025-12-16 9

page 9 of 12

under it has the right to demand, so far as is possible, performance of the other party's undertaking in accordance with the contract. 51. In my opinion, the defendants who are prepared to meet their contractual obligations argue that the plainti must either comply with her responsibilities under the agreement or face the substantial burden of paying damages and associated compensation for the development carried out on the contested property. 52. Considering the prayers sought in the defendants' counterclaims, which include expansive damages for breach of contract, compensation, and a declaration of rights, would not be germane. That leaves me with the equitable remedy of specic performance as the most appropriate remedy under the circumstances. 53. In Thomas Openda v Peter Martin Ahn (1984) KECA 25 (KLR), the Court of Appeal articulated the condition precedent for the enforcement of specic performance relief as follows: “ Now it is correct that the purchaser must pay or tender at the time and place of completing the sale, the purchase price to the seller or such person as he directs. This is a condition precedent for specic performance of the agreement and it is the form in which an order for specic performance of such an agreement is made.” 54. Based on the foregoing, it is well-established that a specic performance order constitutes an equitable remedy granted in situations where awarding damages or compensation would be unreasonable. Such an order is issued only if there is a valid and enforceable agreement and the complainant acts in good faith and with integrity. 55. The circumstances of this matter indicate that specic performance is the appropriate remedy, given that the plainti has placed the defendants in their current position. As previously stated, given the extensive development work the defendants have undertaken on the suit property, granting the sums claimed by the defendants would, in fact, prejudice the plainti. She will not only lose the land but also the remaining balance of the purchase price. Only enforcement of the agreement will restore the parties to the position they would have occupied had the breach not occurred. Monetary compensation, damages, and a declaration of breach of rights, therefore, are not appropriate under these circumstances. 56. The defendants are therefore entitled to the equitable remedy of specic performance as prayed in their respective counterclaims. In the case of Mukua & another v Kariuki & 2 others (Environment & Land Case 521 of 2017) [2022] KEELC 3243 (KLR) (28 July 2022) (Judgment), the court held as follows: “ That the Defendants are entitled to the relief of specic performance as it was ready, willing, and able to complete its obligations under the agreement, whilst the Defendant wilfully declined to discharge his obligations under the agreement and instead elected to transfer the property to his brother to defeat the interest of the Defendants. 42. Specic performance is an equitable remedy grounded in the equitable maxim that equity regards as done that which ought to be done and as an equitable remedy it is decreed at the discretion of the Court, and the basic rule is that specic performance will not be decreed where the common law remedy such as damages, would be adequate to put the Plaintiin the position he would have been but for the breach. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18617/eng@2025-12-16 10

page 10 of 12

43. In the case of Joyce Mugure Mwangi & 7 others Vs Joachim Ngugi Kiarie & 16 others (2019) eKLR, the Court stated that specic performance, like any other equitable remedy, is discretionary and the Court will only grant it on well-known principles. The jurisdiction of specic performance is based on the existence of a valid, enforceable contract. It will not be ordered if the contract suers from some defect, such as failure to comply with the formal requirements, mistake, or illegality, which makes the contract invalid or unenforceable. Even when a contract is valid and enforceable, specic performance will, however, not be ordered where there is an adequate alternative remedy. …. The Court went ahead to state that even where damages are not an adequate remedy specic performance may still be refused on the ground of undue inuence or where it will cause severe hardship to the Defendant.” 57. In summary, the court dismisses the plainti's claim with costs and grants the defendants' counterclaims, partially for specic performance, with no orders as to costs, ensuring that the decision restores the parties' positions as if the agreement had been carried out. 58. The nal orders of the court are summarized below: a. The plainti's suit is dismissed with costs. b. The counterclaims by the defendants succeed in this manner: i. An order of Specic performance of the agreement dated 31st December 2018, is hereby issued by requiring the 2nd defendant to accept the remaining purchase price and sign all necessary transfer documents. ii. To fulll the payment of the requisite purchase monies as outlined in the sale agreement dated 31st December, 2018, the defendants are granted 3 months from the date of this judgment to complete the payment. iii. If the 2nd defendant defaults, an order is hereby issued authorizing the Deputy Registrar of this court to execute all necessary documents to ensure the transfer of the land portion Numbered 9663 (original Number 84009/9) in Malindi to the plaintis in the counterclaim. iv. No orders as to costs concerning the counterclaim. DATED, SIGNED, AND DELIVERED ELECTRONICALLY IN MALINDI ON DECEMBER 16, 2025. E. K. MAKORI JUDGE In the presence of: Mr. Mwanzia for the Plainti Mr. Chianda H/B for Ms. Chepkwony, for 3rd, 4th, 5th, and 8th Defendants Happy: Court Assistant In the absence of: Mr. Kilonzo, for the 1st, 6th, and 7th Defendants https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18617/eng@2025-12-16 11

page 11 of 12

Mr. Nyongesa for the 2nd, 9th, and 10th Defendant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18617/eng@2025-12-16 12

page 12 of 12