ISL Kenya Limited v Export Processing Zones Authority

2. That, stripped to its essentials, is the case before me. 3. The Plaintiff, ISL Kenya Limited, is a limited liability company registered under the Companies Act, Chapter 488 Laws of Kenya (repealed). The Defendant, Export Processing Zones Authority (EPZA), is a state corporation established under the Export Processing Zones Act, Cap 517 Laws of Kenya, with the mandate to promote and facilitate export-oriented investments. 4. The dispute arises from an arrangement between the parties concerning the lease of land known as L.R. No. 18474/218, Portions C1 and C2 (the suit property), situated within the Athi River Export Processing Zone. The Plaintiff’s case is that the arrangement was formalized through a Letter of Offer dated 30th June 2021, which it accepted on 29 th July 2021, and that it thereafter made substantial payments towards the Stand Premium, Security Deposit and Business Service Permit. ELCLC E073/2025 JUDGMENT 2

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The Plaintiff's Case 5. The Plaintiff’s case is set out in the Plaint dated 11 th June 2025. It avers that, following discussions between the parties regarding the lease of the subject land, the Defendant issued a Letter of Offer dated 19th August 2019 to the Plaintiff in respect of the lease of L.R. No. 18474/218, Portions C1 and C2. The Plaintiff duly acknowledged and signed the letter, and returned it on 2nd September 2019. 6. Following discussions between the parties, the Defendant issued a Letter of Offer dated 19th August 2019 in respect of the proposed lease. The Plaintiff accepted the offer, signed it and returned it to the Defendant on 2nd September 2019. 7. Pursuant to that offer, pro forma invoices were issued for a Stand Premium of USD 23,698, a Security Deposit of USD 6,129, making a total of USD 29,827, and Business Service Permit fees of Kshs. 20,000. ELCLC E073/2025 JUDGMENT 3

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8. The Plaintiff’s case is set out in the Plaint dated 11 th June 2025. It avers that, following discussions between the parties regarding the lease of the subject land, the Defendant issued a Letter of Offer dated 19th August 2019 to the Plaintiff in respect of the lease of L.R. No. 18474/218, Portions C1 and C2. The Plaintiff duly acknowledged and signed the letter, and returned it on 2nd September 2019. 9. The Plaintiff subsequently made a further request for an extension by a letter dated 14th June 2021. It states that the request was accepted and that, consequently, the Defendant issued a fresh Letter of Offer dated 30th June 2021. The Plaintiff accepted the new offer on 29th July 2021. 10. The Plaintiff's case is that it thereafter made payments towards the consideration stipulated by the Defendant. The payments were made as follows: a) USD 23,698.80 towards the Stand Premium on 23rd August 2021; ELCLC E073/2025 JUDGMENT 4

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b) USD 2,860.20 towards the Security Deposit on 23rd August 2021; c) USD 1,984.85 towards the Security Deposit on 28th March 2023; d) USD 1,283.95 as the balance of the Security Deposit on 25th April 2023; and e) Kshs. 20,000 towards the Business Service Permit on 25th April 2023. 11. The Plaintiff therefore maintains that it paid the entire Standard Premium and Security Deposit demanded by the Defendant, together with the Business Service Permit fees. 12. The Plaintiff further states that, after making the payments, it made several requests to the Defendant to be shown the subject property. According to the Plaintiff, the Defendant did not act on those requests. 13. It is the Plaintiff's case that, in the course of its dealings with the Defendant, it was informed orally that the subject ELCLC E073/2025 JUDGMENT 5

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property was within a flood-prone area. On that basis, the Plaintiff requested that the allocated portions be substituted with other plots. The request was declined, according to the Plaintiff, on the basis that the lease had already been terminated on 25th December 2023. 14. The Plaintiff subsequently discovered, it alleges, that the representation concerning the flood-prone nature of the property was false and misleading. 15. The Plaintiff further states that, in anticipation of taking up the premises, it expended considerable time, money and other resources in preparing to relocate its operations, including taking steps towards decommissioning its plant. 16. The Plaintiff's position is that it paid a total of USD 29,827.80 and Kshs. 20,000 to the Defendant, but did not receive the lease or possession of the subject property. 17. On that basis, the Plaintiff seeks the following reliefs: ELCLC E073/2025 JUDGMENT 6

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a) An order of specific performance of the lease agreement entered into with respect to Plot No. 18474/224 C1 and C2 vide a letter of offer which was issued on 30th June, 2021 and subsequently accepted on 29th July, 2021; b) In the alternative to prayer (a) above, an order directing the Defendant to fully refund the Plaintiff the full amount paid as per the payment schedule in paragraph 4 of the Plaint, together with costs and interest; c) General damages for breach of contract/lease agreement; d) A permanent injunction restricting the Defendant by itself, its servants, agents and/or employees or whoever is acting on its behalf and/or instructions from trespassing onto, alienating, advertising for lease, offering for lease, taking possession of, leasing, transferring, disposing of or in any manner whatsoever interfering with ELCLC E073/2025 JUDGMENT 7

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Plot No. 18474/224 C1 and C2 as leased out to the Plaintiff for the period of the lease agreement; e) Costs of the suit together with interest thereon at such rate and for such period as this Court may deem fit to order; and f) Any other just and equitable relief as this Court may deem appropriate. The Defendant's Case 18. The Defendant filed a Statement of Defence and Counterclaim dated 23rd July 2025 and denies liability to the Plaintiff. 19. It is the Plaintiff's case that, in the course of its dealings with the Defendant, it was informed orally that the subject property was within a flood-prone area. On that basis, the Plaintiff requested that the allocated portions be substituted with other plots. The request was declined, according to the ELCLC E073/2025 JUDGMENT 8

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Plaintiff, on the basis that the lease had already been terminated on 25th December 2023. 20. The Defendant states that the Plaintiff subsequently appealed against that position and that, following the appeal, a fresh Letter of Offer dated 30 th June 2021 was issued. The new offer provided for a 50-year lease commencing on 1st August 2021. 21. The Defendant maintains that the Plaintiff again failed to comply with the terms of the new offer, particularly the requirements relating to payment and commencement of the proposed development. 22. The Defendant denies that the Plaintiff was denied an opportunity to inspect the subject property. Its case is that, before issuing a Letter of Offer, it is standard practice to show an investor the general location and boundaries of the allocated property and to provide relevant site information. The Defendant nevertheless maintains that the Plaintiff ELCLC E073/2025 JUDGMENT 9

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remained in breach because it did not make the required Standard Premium and Security Deposit within the stipulated period. 23. The Defendant further states that the agreement was lawfully terminated by a notice dated 26th September 2023. 24. As regards the monies paid by the Plaintiff, the Defendant contends that the Standard Premium was expressly non-refundable, while the Security Deposit was to be applied towards the first year's rent subject to the Plaintiff's compliance with the terms of the agreement. 25. In its Counterclaim, the Defendant alleges that the Plaintiff was required to pay annual rent of USD 12,258 and develop the properties within two years from the commencement of the lease. It contends that the Plaintiff failed to develop the properties and accumulated rent arrears for the years 2021, 2022 and 2023 amounting to USD 33,128.05. ELCLC E073/2025 JUDGMENT 10

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26. The Defendant consequently seeks the following reliefs: a) An order that the Plaintiff is in rental arrears of United States Dollars Thirty-Three Thousand One Hundred and Twenty-Eight and Five Cents Only (USD 33,128.05); b) General damages; c) Costs of the suit; and d) Any other relief which this Court may deem fit to grant. 27. The Plaintiff filed a Reply to Defence and Defence to Counterclaim dated 6th September, 2025. It denied breaching the terms of the letter of offer and maintained that the Defendant accepted its payments. It also denied receiving the alleged termination notice and stated that it only learnt of the termination through the Defendant’s letter dated 26 th February, 2025. 28. In answer to the Counterclaim, the Plaintiff denied liability for the alleged rent arrears and maintained that it ELCLC E073/2025 JUDGMENT 11

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could not develop the properties because they had neither been formally handed over nor made available for inspection. 29. The suit proceeded to hearing on 6th July 2026, when both parties presented their respective cases. THE EVIDENCE The Plaintiff's Evidence 30. The Plaintiff called one witness, John Mburu (PW1), a Director of the Plaintiff. He adopted his witness statement dated 11th June 2025 and produced the documents accompanying the Plaintiff's case as Plaintiff's Exhibits 1 to 20. 31. PW1 testified that the Plaintiff paid a total of USD 29,827.80 towards the Standard Premium and Security Deposit, and a further Kshs. 20,000 towards the Business Service Permit. His evidence was that the Defendant ELCLC E073/2025 JUDGMENT 12

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received the payments and issued official receipts in respect thereof. 32. PW1's 1 evidence was that, having made the payments, the Plaintiff expected to be shown the physical location of the property, issued with the lease and thereafter handed possession of the premises. He maintained that the Plaintiff was never shown the specific portions allocated to it. He further testified that the Plaintiff raised the issue of the property's alleged location within a flood-prone area and subsequently sought a refund of the sums paid. 33. In cross-examination, PW1 acknowledged that the parties had initially dealt with the Letter of Offer dated 19 th August 2019 but that the arrangement did not proceed. He attributed this to the circumstances occasioned by the COVID-19 pandemic and confirmed that the 2019 offer subsequently lapsed. He further confirmed that a fresh Letter of Offer dated 30th June 2021 was thereafter issued. ELCLC E073/2025 JUDGMENT 13

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34. PW1's evidence was that, although he understood the terms of the Letter of Offer, he regarded it as a document guiding the parties rather than as the registered lease itself. He nevertheless acknowledged that he understood its contractual significance. He also confirmed that the Standard Premium was stated to be non-refundable. 35. On the payments made under the 2021 Letter of Offer, PW1 stated that they were made on different dates and were accepted by the Defendant. He explained that the Defendant continued to demand for payment and received the sums as they were remitted. His evidence was that the Plaintiff had been shown the general area of the property during the earlier dealings but had never been shown the specific land allocated to it. 36. PW1 further maintained that the Plaintiff remained ready to proceed with the transaction and that the final payment was made in 2023. His evidence was that, ELCLC E073/2025 JUDGMENT 14

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notwithstanding the payments made, the specific property was never pointed out to the Plaintiff. 37. During re-examination, PW1 maintained that no registered lease had been issued to the Plaintiff and that possession of the property had never been given to it. He stated that the Plaintiff had repeatedly requested to be shown the property to enable it to plan and prepare for the intended development, but that the Defendant's operational arm did not act upon those requests. The Defendant's Evidence 38. The Defendant called one witness, Andrew Gichuku Njuru, who testified that he is an Assistant Manager Property at the EPZ Authority. He adopted his witness statement and produced documents as Defence Exhibit 1 to 6. ELCLC E073/2025 JUDGMENT 15

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39. DW1 explained the Defendant's process for allocating property within the Export Processing Zones. His evidence was that the process begins with a Letter of Offer setting out the applicable terms and conditions. The investor is required to make the stipulated payments within the validity period of the offer. Upon compliance with those requirements, the property is formally handed over to the investor. 40. DW1 further explained that an investor is expected to undertake due diligence concerning the property and that, before handover, the investor would ordinarily be shown the location of the property on a map. He maintained that the Plaintiff had not complied with the terms of the Letter of Offer. 41. During cross-examination, however, DW1 acknowledged that there had been correspondence from the Plaintiff requesting to be shown the property before proceeding with compliance. He further confirmed that the property had not been handed over to the Plaintiff. While he ELCLC E073/2025 JUDGMENT 16

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maintained that the Plaintiff had been shown the physical location of the property, he accepted that the map said to have been provided during an earlier site visit had not been produced in evidence. 42. DW1's evidence on the sequence of compliance and handover was that the Plaintiff was required to make the stipulated payments before the property could be shown to it. He nevertheless confirmed that the Plaintiff had requested to be shown the property before completing compliance. He maintained that the Plaintiff was initially in breach of the terms of the Letter of Offer. 43. On the issue of the alleged flood zone, DW1 stated that the Defendant was not aware of that issue. He explained that maps and survey reports had not subsequently been availed to the Plaintiff because, according to the Defendant's position, the Plaintiff was already in breach. He nevertheless maintained that the maps had previously been shown to the ELCLC E073/2025 JUDGMENT 17

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Plaintiff, although the maps themselves were not produced in evidence. 44. On termination, DW1 referred to a notice dated 26 th September 2023 and maintained that the Plaintiff had been shown the general area of the land and had accepted the conditions contained in the Letter of Offer. He further maintained that, upon execution of the Letter of Offer, it became the operative agreement governing the parties' relationship. 45. The evidence of the two witnesses establishes some matters which are not seriously in dispute. The parties initially dealt with the 2019 Letter of Offer, which subsequently lapsed, and thereafter proceeded on the basis of the Letter of Offer dated 30th June 2021. It is also common ground that the Plaintiff made the payments evidenced by the receipts produced in court and that those payments were received by the Defendant. ELCLC E073/2025 JUDGMENT 18

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46. The evidence is, however, in dispute as to the circumstances in which the Plaintiff was expected to undertake due diligence, make the stipulated payments, obtain identification and handover of the property, and commence development. There is also a dispute concerning the alleged termination of the arrangement and the circumstances in which the notice dated 26 th September 2023 was issued. These matters fall for determination from the contractual documents and the evidence as a whole. THE SUBMISSIONS 47. After the respective cases closed, the Court directed the parties to exchange written submissions within 30 days. The Plaintiff's Submissions 48. The Plaintiff's written submissions dated 12th August 2026, filed through M/s Nderu Ngaruni & Kimeru Advocates, were filed outside the period prescribed by the Court. I have nevertheless considered the submissions in determining the issues arising in the suit. ELCLC E073/2025 JUDGMENT 19

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49. Counsel for the Plaintiff identified two issues for determination. The first was whether either party had breached the terms of the agreement between them. The second was whether the Defendant's Counterclaim was meritorious. 50. On the first issue, counsel submitted that the Letter of Offer dated 30th June 2021, having been executed by both parties, constituted a binding agreement. It was submitted that the terms of the agreement were not in dispute and that the Plaintiff made the payments stipulated therein. Counsel pointed to the payments of USD 20,430.00 as Standard Premium and USD 6,129.00 as Security Deposit, which were made on different dates and received and acknowledged by the Defendant through official receipts. 51. Counsel submitted that the Defendant accepted the payments without objection as to either their mode or timing and continued to engage with the Plaintiff in relation to the ELCLC E073/2025 JUDGMENT 20

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transaction. It was argued that, having accepted and retained the payments, the Defendant could not subsequently rely on the timing of those payments as constituting a breach by the Plaintiff. Counsel relied on the doctrine of waiver and estoppel and on the decision in Abdalla & another v Sheheena Enterprises Limited (Civil Suit 45 of 2019) [2025] KEHC 9881 (KLR). 52. Counsel further submitted that the Plaintiff's obligations under the arrangement had to be considered together with the Defendant's obligation to identify and hand over the property. It was contended that the Plaintiff intended to establish a steel manufacturing operation on the premises and therefore needed to ascertain the precise location, boundaries, physical condition, accessibility and suitability of the property before proceeding with the development. 53. Counsel submitted that the Plaintiff had made several requests to be shown the specific property and its beacons to enable it to undertake the necessary assessment and ELCLC E073/2025 JUDGMENT 21

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prepare for development. It was argued that those requests were not acted upon. Counsel placed particular reliance on the evidence of DW1, who, according to counsel, acknowledged that the Plaintiff had not been handed possession of the property and that the maps said to have been shown to the Plaintiff had not been produced in evidence. 54. Counsel contended that the Plaintiff had already made substantial financial commitments towards the transaction and that its request to inspect and identify the property was therefore reasonable in the circumstances. The Court was urged to consider the Plaintiff's requests for inspection alongside the payments it had made and not to treat the subsequent failure to proceed with development as an unexplained or voluntary default. 55. On the alleged termination of the agreement, counsel submitted that the Defendant had failed to prove that the agreement was validly terminated. It was argued that ELCLC E073/2025 JUDGMENT 22

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although the Defendant relied on a notice dated 26 th September 2023, there was insufficient evidence that the notice was served upon the Plaintiff. Counsel further submitted that this was contrary to the contractual requirement for written notice of termination. 56. Counsel consequently submitted that the Defendant was in breach of its obligations under the agreement and that the Plaintiff was entitled to the reliefs sought in the Plaint. In the alternative, counsel submitted that the sums paid by the Plaintiff ought to be refunded. Counsel relied on the principle of restitution and on the decision in Abdalla & another v Sheheena Enterprises Limited (Civil Suit 45 of 2019) [2025] KEHC 9881 (KLR). Counsel argued that the Defendant ought not to retain the Plaintiff's payments where the Plaintiff had not received the contractual benefit for which the payments were made. 57. On the Counterclaim, counsel submitted that the Defendant's claim for rent was founded on the premise that ELCLC E073/2025 JUDGMENT 23

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the Plaintiff had been placed in possession of the property and had thereafter failed to utilize or develop it. That premise, counsel argued, was not supported by the evidence. Counsel maintained that the property had never been handed over to the Plaintiff and that the Plaintiff had not been given possession of the specific portions that were the subject of the agreement. 58. Counsel therefore submitted that the Defendant could not recover rent in respect of property which, according to the Plaintiff's case, had never been handed over to it. Counsel again relied in Abdalla & another v Sheheena Enterprises Limited to support the submission that a party should not benefit from its own breach of the agreement. 59. Counsel urged the Court to find that the Plaintiff had proved its case, grant the reliefs sought in the Plaint and dismiss the Defendant's Counterclaim with costs. The Defendant's Submissions ELCLC E073/2025 JUDGMENT 24

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60. The Defendant's written submissions dated 17 th August 2026 were filed through M/s K.K. & Associates Law. 61. Counsel for the Defendant identified four issues for determination: a) Whether the letter of offer dated 30th June, 2021 constituted a binding agreement between the parties; b) Whether the Plaintiff breached its terms c) Whether the termination of the lease was lawful; and d) Whether the Defendant had proved its Counterclaim for rent arrears of USD 33,128.05. 62. On the first issue, counsel submitted that the Plaintiff accepted and executed the Letter of Offer and was therefore bound by its express terms. Reliance was placed on National Bank of Kenya Ltd v Pipeplastic Samkolit (K) ELCLC E073/2025 JUDGMENT 25

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Ltd & another [2001] KECA 362 (KLR) for the proposition that a court cannot rewrite a contract between parties and that parties remain bound by the terms of their agreement unless coercion, fraud or undue influence is pleaded and proved. 63. Counsel submitted that none of those vitiating factors had been pleaded or proved by the Plaintiff. In particular, it was argued that the Plaintiff's allegation concerning oral representations as to the flood-prone nature of the suit properties was unsupported by evidence and could not be relied upon to vary the express terms of the written agreement. 64. Counsel further relied on section 66(1)(a) of the Land Act, which implies in every lease a covenant requiring the lessee to pay the rent reserved by the lease at the times and in the manner specified in the lease. It was submitted that the Plaintiff was consequently bound to comply with its payment obligations under the agreement. ELCLC E073/2025 JUDGMENT 26

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65. On breach, counsel submitted that the Plaintiff was aware of the importance of timely compliance, having previously failed to comply with the requirements of the Letter of Offer dated 19th August 2019, which consequently lapsed. It was argued that, notwithstanding the fresh offer made in 2021, the Plaintiff did not complete payment of the Security Deposit until 25th April 2023, approximately 20 months after the commencement date of 1st August 2021. 66. Counsel further submitted that the Plaintiff failed to provide the Environmental Impact Assessment licence and the project plans or drawings required under the agreement and did not develop the suit properties within the stipulated two-year period. It was also submitted that rent remained unpaid for the years 2021, 2022 and 2023, resulting in arrears of USD 33,128.05. These matters, counsel argued, constituted breaches of the agreement. ELCLC E073/2025 JUDGMENT 27

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67. Counsel relied on Diamond Homes Limited v Shapi [2024] KECA 1161 (KLR) for the proposition that the Court's task in determining a contractual dispute is to give effect to the intention of the parties as discerned from the contractual documents and their conduct. It was submitted that the Court should therefore give effect to the terms agreed by the parties notwithstanding that some of those terms may operate to the disadvantage of the Plaintiff. 68. On termination, counsel relied on section 65(2)(b) of the Land Act and submitted that the provision empowers a lessor to terminate a lease by notice where rent remains unpaid for one month after the due date or where the lessee has failed for one month to observe or perform a condition, covenant or other term of the lease. 69. Counsel submitted that the termination notice dated 26th September 2023 was issued after the expiry of the twoyear development period and at a time when rent remained outstanding. It was further submitted that the Plaintiff ELCLC E073/2025 JUDGMENT 28

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neither remedied the alleged breaches after receipt of the notice nor sought relief against forfeiture. 70. Counsel also addressed the Plaintiff's subsequent request for substitution of the suit properties. It was submitted that the request, dated 12 th November 2024, was made after termination of the lease and that there was consequently no subsisting leasehold interest capable of being substituted. The Defendant was therefore said to have been entitled to decline the request. 71. In relation to the Counterclaim, counsel submitted that the Defendant was entitled to recover the unpaid rent notwithstanding the termination of the lease. It was further submitted that the Standard Premium was expressly nonrefundable under the Letter of Offer and that the Security Deposit could only be applied towards the first year's rent subject to compliance with the terms of the agreement. ELCLC E073/2025 JUDGMENT 29

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72. Counsel concluded that the Plaintiff had failed to prove its entitlement to specific performance, refund, injunctive relief or damages. The Court was accordingly urged to dismiss the suit with costs and enter judgment for the Defendant on the Counterclaim as prayed. Issues for Determination 45. Having carefully considered the pleadings, the evidence adduced and the submissions of the parties, the following issues commend themselves for determination. 46. The issues which arise for determination on the Plaintiff's claim are: a) Whether there was a valid and binding contract between the parties. b) Whether the Defendant waived its right to insist on strict compliance with payment timelines c) Whether the Defendant placed the Plaintiff in a position where it could perform the development obligation ELCLC E073/2025 JUDGMENT 30

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d) Whether the Defendant lawfully terminated the agreement. e) Whether the Plaintiff is entitled to the reliefs sought. 47. The issues which arise for determination on the Defendant's Counter-Claim are: a) Whether the Defendant is entitled to rental arrears of USD 33,128.05. b) Whether the Defendant is entitled to general damages. c) Who should bear the costs of the suit? ANALYSIS AND DETERMINATION Whether there was a valid and binding contract between the parties 48. The first issue is whether the Letter of Offer dated 30 th June 2021 constituted a valid and binding contract between the parties. On this issue, there is little controversy. Both ELCLC E073/2025 JUDGMENT 31

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parties rely on the Letter of Offer as the instrument governing their relationship, although they differ on whether its terms were subsequently breached and whether the arrangement was lawfully terminated. 49. The Letter of Offer identified the parties, the property, the proposed term of the lease, the commencement date, the rent and other financial obligations, the development requirements and the circumstances in which the arrangement could be terminated. It was signed by the Defendant on 30th June 2021 and accepted and signed by the Plaintiff on 29th July 2021. More significantly, under the heading “Execution of Lease/Breach of the Covenants”, it provided: “Until such time as the standard form of lease hereafter referred to has been executed and registered, all the covenants and conditions and the rent agreed shall be deemed to be incorporated in this letter.” ELCLC E073/2025 JUDGMENT 32

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50. The foregoing provision demonstrates that the parties did not intend their obligations to remain in abeyance until execution and registration of the standard lease. On the contrary, covenants, they expressly conditions agreed that rent would and the stipulated govern their relationship pending execution and registration of that lease. 51. The fact that a formal lease was not subsequently executed and registered does not, in the circumstances, mean that there was no binding agreement between the parties. In Chon Jeuk Suk Kim & another v E. J. Austin & 2 others [2013] KECA 150 (KLR), the Court of Appeal cited with approval the decision in Souza Figneiredo v Moorings Hotel Co. Ltd [1960] EA 926, where Sir Kenneth O'Connor P stated: "As already stated the Ordinance avoids the creation of an estate or interest in land by unregistered instruments but there is nothing in the Ordinance which renders such instruments ELCLC E073/2025 JUDGMENT 33

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ineffectual as contracts between the parties to them." 52. The Court of Appeal further held: "Those decisions show that an agreement of a lease or unregistered lease where the statute requires registration, though not conferring any legal or equitable estate is nevertheless enforceable as contract between the parties for the period stated in the document and the nonregistration does not preclude the use of the document to show the terms of contract between the parties." 53. The same principle was affirmed in Yusuf Mohammed Jiwa t/a Jiwa Properties & another v Mwangi & 2 others [2024] KECA 38 (KLR), where the Court of Appeal held: "Be that as it may, the respondents having signed the Letter of offer meant that the parties ELCLC E073/2025 JUDGMENT 34

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were bound by the terms, which included an agreement to lease the suit premises to the respondents for a fixed term of 5 years and 6 months." 54. In the present case, the Plaintiff accepted the Letter of Offer and thereafter made payments towards the Standard Premium and Security Deposit, which payments the Defendant received and acknowledged. The Defendant, for its part, continued to demand payment and subsequently relied upon the terms of the Letter of Offer in seeking to terminate the arrangement and in advancing its Counterclaim. The conduct of both parties is consistent with an intention to be bound by the terms of the Letter of Offer. 55. The fact that the parties contemplated the execution of a formal lease does not, however, mean that the Letter of Offer had no contractual effect. The Letter of Offer identified the parties, the suit property, the nature and duration of the proposed ELCLC E073/2025 JUDGMENT lease and the financial obligations to be 35

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undertaken by the Plaintiff. The Plaintiff accepted those terms and proceeded to make the payments required under the offer, which payments were received by the Defendant. The subsequent conduct of the parties must therefore be considered in the context of an agreement whose essential terms had already been agreed, notwithstanding the contemplated execution and registration of the formal lease. 56. I accordingly find that the Letter of Offer dated 30 th June 2021 constituted a valid and binding agreement between the parties. It did not, however, confer upon the Plaintiff the 50year registered leasehold interest contemplated by the proposed lease. Whether the parties performed their respective obligations under that agreement, and the effect of the subsequent events relied upon by either party, are matters for determination under the succeeding issues. Whether the Defendant waived its right to insist on strict compliance with payment timelines ELCLC E073/2025 JUDGMENT 36

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53. The Plaintiff submits that the Defendant accepted payments made on different dates without objection and thereby waived its right to insist upon strict compliance with the payment timelines. The Defendant, on the other hand, submits that the Plaintiff breached the Letter of Offer by failing to make the stipulated payments within the prescribed periods, pointing in particular to the fact that the Security Deposit was not fully paid until 25 th April 2023, about twenty months after the commencement date of 1 st August 2021. 54. The evidence shows that the Defendant received the payments made by the Plaintiff after the dates stipulated in the Letter of Offer and continued to engage with the Plaintiff in relation to the transaction. There is no evidence that, upon receiving the delayed payments, the Defendant treated the delay as bringing the agreement to an end or reserved its right to reject the payments on account of their lateness. ELCLC E073/2025 JUDGMENT 37

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55. The effect of such conduct was considered by the Court of Appeal in Yusuf Mohammed Jiwa t/a Jiwa Properties & another v Mwangi & 2 others (supra), where the Court held: "Essentially, by accepting the signed letter of offer and the deposit contrary to the express terms of the Letter of offer, the appellants acquiesced and assented to a mutual variation of the terms of offer." 56. The Court further stated: "When the above cited authorities are applied to the circumstances of the instant case, it becomes clear that the appellants' acquiescence and acceptance of the signed offer letter and the deposit notwithstanding that they were returned after the stipulated 10 days' period had lapsed, amounted to a waiver and variation of the original terms. By so doing, we find that they were bound by the varied terms of acceptance and estopped from claiming that the respondents ELCLC E073/2025 JUDGMENT 38

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were in breach of the terms of offer that they effectively waived." 57. In my view, the principle emerging from the foregoing decision is applicable to the circumstances before this Court. The Plaintiff made the payments required under the Letter of Offer, albeit after the dates initially contemplated. The Defendant received and retained those payments and continued to deal with the Plaintiff on the basis of the Letter of Offer. It did not reject the payments on account of their timing or communicate to the Plaintiff that the agreement had ceased to have effect by reason of the delay. Its conduct therefore amounted to acceptance of the Plaintiff's performance on terms different from the original payment timelines. 58. I am accordingly satisfied that, having accepted and retained the payments made by the Plaintiff pursuant to the Letter of Offer, the Defendant cannot ELCLC E073/2025 JUDGMENT 39

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59. Rely on the original payment timelines as though they remained unchanged. The parties' conduct altered the position between them in relation to those timelines, and the Defendant was bound by that altered position. Accordingly, the Defendant cannot rely upon the delay in making those payments as a breach of the agreement after accepting and retaining the payments despite that delay. Whether the Defendant placed the Plaintiff in a position where it could perform the development obligation 60. The effect of the Defendant’s acceptance of the Plaintiff’s payments having been determined, the next question concerns the obligations that the parties were thereafter required to perform under the Letter of Offer. The Plaintiff submits that it made several requests to the Defendant to be shown the specific property so that it could assess the site and plan for the intended development, but that those requests were not acted upon. The Defendant, on the other hand, maintains that the Plaintiff was responsible for undertaking its own due ELCLC E073/2025 JUDGMENT 40

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diligence and failed to comply with the obligations imposed by the Letter of Offer. 61. The obligation to develop the property necessarily presupposed that the Plaintiff had been placed in a position to identify, access and assess the property which it was required to develop. The question therefore is whether, having regard to the terms of the Letter of Offer and the conduct of the parties, the Defendant took the steps necessary to place the Plaintiff in that position before seeking to hold it responsible for the failure to undertake the development. 62. The Letter of Offer provided that the premises were to be leased on an “as-is-where-is” basis and required the Plaintiff to develop the premises within twenty-four months from the commencement of the lease. The Letter of Offer did not expressly provide that a formal site inspection was a condition precedent to the agreement. It is nevertheless material that DW 1 explained the Defendant's allocation ELCLC E073/2025 JUDGMENT 41

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process as including showing an investor the location of the property, including its location on a map, before formal handover. 63. The evidence establishes that the Plaintiff was shown the general area in which the property was situated. PW1 acknowledged as much. The dispute is whether the Plaintiff was thereafter given sufficient identification of the specific portions allocated to it to enable it to undertake the necessary planning and development. On this question, DW1 maintained that the Plaintiff had been shown the location and that a map had been provided during an earlier site visit. The map itself was not produced in evidence. More importantly, DW1 confirmed that the specific property was never handed over to the Plaintiff. 64. The correspondence produced before Court provides further evidence of what the Plaintiff sought from the Defendant. The Plaintiff made ELCLC E073/2025 JUDGMENT 42

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repeated requests to be shown the specific property and its beacons and sought the relevant maps to enable it to plan for the intended development. By its email of 14th August 2023, the Plaintiff requested a meeting at which the Defendant would point out the physical location of the property and avail the maps. In a further communication dated 18th April 2024, the Plaintiff again referred to its earlier requests to be shown the property and its beacons. 65. The Defendant’s response to those requests is material. DW1 acknowledged that there was correspondence in which the Plaintiff requested to be shown the property before proceeding with compliance. He also confirmed that the property had not been handed over to the Plaintiff. His explanation was that the maps and survey reports were not subsequently availed because the Plaintiff was already in breach. That explanation is difficult to reconcile with the nature of the alleged breach. The Defendant relied upon the Plaintiff’s failure to develop the premises, yet its own evidence was that the specific property had not been ELCLC E073/2025 JUDGMENT 43

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handed over and that the survey information requested by the Plaintiff had not been availed. 66. I accept that the Letter of Offer placed an obligation upon the Plaintiff to undertake due diligence and to develop the premises within the stipulated period. That obligation, however, required the Plaintiff to know the particular land which it was required to develop. The evidence does not establish that the Plaintiff was given the specific portions identified in the Letter of Offer, their beacons or the map said by DW1 to have been provided. More importantly, the Defendant’s own witness confirmed that the specific property was never handed over to the Plaintiff. 67. In those circumstances, I find that the Plaintiff was not placed in a position in which it could reasonably undertake the development contemplated by the Letter of Offer. The Defendant cannot properly found a claim of non- development upon the Plaintiff’s failure to develop premises which, on its own evidence, had not been specifically identified and handed over to the Plaintiff. ELCLC E073/2025 JUDGMENT 44

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68. The Defendant relied on Export Processing Zones Authority v Lowdan Exporters (EPZ) Limited [2024] KECA 864 (KLR), in which the Court of Appeal upheld the termination of leases containing a twenty-four-month development obligation. The decision, however, turned on the terms of the registered leases and the evidence before the Court. The respondent in that case had taken possession of the suit properties, and the Court found that the appellant had a contractual right to terminate on account of, among other matters, the respondent's failure to undertake the required developments and its failure to pay rent. 69. The decision does not determine the present dispute. The material question here is whether the Plaintiff had been placed in a position to perform the development obligation upon which the Defendant subsequently relied. In Lowdan Exporters, the Respondent was in possession of the properties which it was required to develop. In the present case, the evidence establishes that the Plaintiff was shown ELCLC E073/2025 JUDGMENT 45

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the general area but that the specific portions allocated to it were never handed over. The map said by DW1 to have been provided was not produced and the Plaintiff’s repeated requests to be shown the property and its beacons were not acted upon. 70. The evidence therefore establishes that the Defendant did not place the Plaintiff in a position in which it could reasonably be expected to commence the contemplated development. The Plaintiff was shown the general area, but the specific property was not identified to it in a manner established by the evidence. The Defendant maintained that the Plaintiff was already in breach and, on that basis, did not provide the maps and survey information sought by the Plaintiff. The Defendant cannot then rely upon the resulting failure to develop as though the Plaintiff had been given an identified site upon which it could commence development. 71. I do not consider the Plaintiff’s obligation to undertake its own due diligence to change that conclusion. That ELCLC E073/2025 JUDGMENT 46

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obligation did not relieve the Defendant of the need to identify the particular premises which the Plaintiff was required to develop. In the circumstances of this case, the evidence connects the failure to identify and make available the specific property with the Plaintiff’s inability to undertake the physical and technical preparations necessary for development. The Defendant has not displaced that connection by relying upon the Plaintiff’s obligation to conduct its own due diligence. 72. I therefore find, on the evidence before the Court, that the Plaintiff was not placed in a position to perform the twenty-four-month development obligation. The specific property was not handed over to the Plaintiff, the map relied upon by DW1 was not produced, and the Plaintiff’s repeated requests to be shown the property and its beacons were not acted upon. In the circumstances, the Defendant could not properly treat the Plaintiff’s failure to develop the premises as a breach ELCLC E073/2025 JUDGMENT of the development obligation without 47

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accounting for the fact that the specific property to be developed had not been made available to the Plaintiff. Whether the Defendant lawfully terminated the agreement 73. The conclusion that the Plaintiff was not placed in a position to perform the development obligation brings me to the question whether the Defendant lawfully terminated the agreement on the basis of the breaches stated in its notice dated 26th September 2023. The Defendant submits that it was entitled to terminate because the twenty-four-month development period had expired and rental arrears remained outstanding. The Plaintiff disputes that position and contends that the alleged failure to develop could not constitute a breach in circumstances where the Defendant had not made the specific property available to it. It also contends that service of the notice of termination was not proved. ELCLC E073/2025 JUDGMENT 48

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74. Section 65(2)(b) of the Land Act implies in every lease a covenant empowering the lessor to terminate by notice of intention to terminate where the circumstances specified in the provision arise. Section 65(2)(b)(i) concerns rent remaining unpaid for one month after the due date, while section 65(2)(b)(ii) concerns failure by the lessee for one month to observe or perform a condition, covenant or other term of the lease. The grounds relied upon for termination must therefore be established before the power of termination can properly be invoked. 75. In the present case, the Defendant relied primarily on the Plaintiff’s alleged failure to develop the property within twenty-four months and its alleged failure to pay rent. I have already found that the Plaintiff was not placed in a position to undertake the development obligation. The specific property was never handed over to the Plaintiff, the map said to have been provided was not produced, and the Plaintiff made repeated requests to be shown the property and its beacons and to be provided with the relevant maps. ELCLC E073/2025 JUDGMENT 49

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DW1 confirmed that the requested information was not subsequently provided because the Plaintiff was already regarded as being in breach. 76. The development obligation was therefore to be performed in relation to particular portions of land which the Plaintiff had not been shown and which had not been handed over to it. The evidence does not establish that the Plaintiff was given particular the information premises and necessary undertake to the identify the development contemplated by the agreement. I therefore find that the Plaintiff’s failure to develop the property within the stipulated period did not constitute a breach upon which the Defendant could properly terminate the agreement. 77. A similar question arose in Abdalla & another v Sheheena Enterprises Limited (Civil Suit No. 45 of 2019) [2025] KEHC 9881 (KLR), where the Court considered a party’s reliance on the other party’s failure to ELCLC E073/2025 JUDGMENT 50

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execute a lease which the former had itself failed to provide. The Court held: “The Defendant, having failed to present the Lease Agreement to the Plaintiffs, cannot now claim that the Plaintiffs are in breach for failing to execute a document they were never provided with. In these circumstances, the forfeiture Clause does not arise, and the Defendant's claim to retain the deposit must fail.” 78. The reasoning is applicable to the present case. The Plaintiff was required to develop the particular portions allocated to it. The evidence, however, does not establish that those portions were identified to the Plaintiff, that they were handed over to it or that the information it sought for purposes of undertaking the development was provided. In those circumstances, the alleged failure to develop the property could not constitute the breach relied upon by the Defendant to terminate the agreement. ELCLC E073/2025 JUDGMENT 51

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79. I turn to the notice dated 26th September 2023. The Defendant relies on the notice as the instrument by which it purported to terminate the agreement with effect from 25 th December 2023. The Plaintiff disputes having been served with it. The Defendant did not produce evidence showing when or how the notice was served. There was no acknowledgment of receipt, email transmission, certificate of delivery, delivery note or other evidence establishing its transmission to the Plaintiff in September 2023. DW1 also confirmed that the notice had not been produced from the Defendant’s own records. 80. The notice dated 26th September 2023 appears among the Plaintiff’s documents and was subsequently attached to the Defendant’s letter dated 26th February 2025. That evidence establishes the existence of the notice but does not establish that it was served upon the Plaintiff in September 2023. I therefore find that service of the notice before the date on which the Defendant intended the termination to take effect was not proved. ELCLC E073/2025 JUDGMENT 52

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81. The consequence is that the ninety-day period stated in the notice could not commence to run from 26 th September 2023. The subsequent letter dated 26th February 2025 could not retrospectively cause the notice to take effect from 25 th December 2023. The notice therefore did not effect a termination of the agreement on that date. 82. with There is also the question whether the notice complied the statutory requirements governing forfeiture. Section 75 of the Land Act provides that, before exercising a right of forfeiture for breach of an agreement or condition in a lease, the lessor must serve a notice of not less than thirty days specifying the breach and, where the breach is capable of remedy, requiring the lessee to remedy it within a reasonable period. In a case other than non-payment of rent, the notice must also require the lessee to make reasonable compensation in money for the breach. Even assuming that section 75 applied to the parties’ contractual arrangement, the notice did not satisfy those requirements. ELCLC E073/2025 JUDGMENT 53

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83. Although the notice allowed ninety days before the stated date of termination, it did not require the Plaintiff to remedy the alleged failure to develop the premises within that period or within any other specified reasonable period. It also did not require the Plaintiff to make reasonable compensation in respect of the alleged breach. The notice consequently did not afford the Plaintiff the opportunity contemplated by section 75 to remedy the alleged breach and make the prescribed compensation. 84. The approach is consistent with the reasoning in Mayfair Establishment Limited v Athman & another [2025] KEELC 7895 (KLR), where the Court considered a letter relied upon as a notice preceding forfeiture and stated at paragraph 35: “I was not persuaded that the said letter amounted to the notice before forfeiture required under the law. The letter was not addressed to any particular individual and neither did it give ELCLC E073/2025 JUDGMENT 54

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the lessee notice to redeem the alleged breach. It was certainly not served upon the 1st this case establishes that the Defendant.” 85. The evidence in Defendant purported to terminate the agreement on the ground that the Plaintiff had failed to develop the premises within the stipulated period and had failed to meet its other contractual obligations. The development breach was not established. Service of the notice dated 26 th September 2023 was not proved and, in any event, the notice did not comply with the requirements of section 75 of the Land Act. I therefore find that the Defendant did not lawfully terminate the agreement with effect from 25th December 2023. Whether the Plaintiff is entitled to the reliefs sought 86. Having found that the Defendant did not lawfully terminate the agreement, I now turn to the reliefs sought by the Plaintiff. The Plaintiff seeks specific performance of the ELCLC E073/2025 JUDGMENT 55

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agreement and, in the alternative, a refund of the sums paid to the Defendant. It also seeks general damages and a permanent injunction in respect of the suit property. The question is whether, having regard to the agreement, the conduct of the parties and the findings made above, the Plaintiff has established a basis for any of those reliefs. Specific Performance 87. The Plaintiff’s main relief is an order of specific performance of the agreement. Specific performance is an equitable remedy, granted at the discretion of the Court. The starting point is therefore whether there is a valid and enforceable agreement capable of being specifically performed. Even where that requirement is satisfied, the remedy is not granted as of right. In Reliable Electrical Engineers (K) Ltd v Mantrac Kenya Limited [2006] KEHC 2855 (KLR), the Court explained that: "The Jurisdiction of specific performance is based on the existence of a valid enforceable contract. ELCLC E073/2025 JUDGMENT 56

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It will not be ordered if the contract suffers from some defect, such as failure to comply with the formal requirements or mistake or illegality, which makes the contract invalid or enforceable. Even when a contract is valid and enforceable, specific performance will however not be ordered where there is an adequate alternative remedy." 88. The other consideration is whether the party seeking specific performance has performed, or has been ready and willing to perform, its part of the bargain. In Gurdev Singh Birdi & Another v Abubakar Madhbuti [1997] KECA 13 (KLR), the Court of Appeal stated: “Secondly, there was no evidence that prior to the filing of the suit the appellants tendered the balance of the purchase price to the respondent. This, in my view, only confirms that they were never ready, able or willing to carry out their part of the contract. The appellants simply could not raise the balance of the purchase price on or ELCLC E073/2025 JUDGMENT 57

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before the specified time, i.e. January 31, 1993, and were in fact in breach of the agreement.” 89. The Plaintiff made substantial payments towards the Standard Premium and the Security Deposit under the Letter of Offer. The Defendant received those payments. I have also found that the Defendant was not entitled to treat the Plaintiff’s failure to develop the premises as a breach of the agreement in circumstances where the specific premises had not been made available to the Plaintiff. 90. Specific performance is, however, a discretionary equitable remedy. The Court must be satisfied that the order sought can properly be made in terms of the agreement between the parties and that the circumstances of the case justify compelling performance of the obligation in question. 91. In this case, the agreement identified the premises to be leased as L.R. No. 18474/218 Portions C1 and C2. The order sought by the Plaintiff is for specific performance ELCLC E073/2025 JUDGMENT 58

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in respect of Plot No. 18474/224 C1 and C2. These are not the same descriptions of the property. The Court has no evidence establishing that Plot No. 18474/224 C1 and C2 is the same property as L.R. No. 18474/218 Portions C1 and C2, or explaining the difference between the two descriptions. The Court cannot, in those circumstances, order the Defendant to execute a lease over property which has not been shown to be the property identified in the agreement. 92. The Letter of Offer also contemplated the subsequent execution and registration of a formal lease. That lease was never executed or registered. The Defendant thereafter purported to terminate the agreement, which this Court has found was not a lawful termination. The Court must nevertheless determine the relief to which the Plaintiff is entitled in the circumstances that have been established before it. ELCLC E073/2025 JUDGMENT 59

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93. Specific performance would require the Court to direct the parties to proceed with the grant of a lease over identified premises and to complete a transaction which never reached the stage of execution and registration of the contemplated lease. In view of the unresolved description of the property in the prayer and the circumstances in which the transaction came to an end, I am not satisfied that such an order can properly be made. 94. The prayer for specific performance is therefore declined. I turn to the Plaintiff’s alternative claim for a refund of the sums paid under the agreement. Refund 95. The Letter of Offer expressly provided that the Standard Premium was non-refundable. PW1 also acknowledged during cross-examination that the Standard Premium was non-refundable. I therefore find that the Plaintiff has no contractual entitlement to a refund of the Standard Premium of USD 23,698.80. ELCLC E073/2025 JUDGMENT 60

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96. The Defendant also received the Security Deposit under the Letter of Offer. The contemplated lease was never executed or registered, and the Defendant did not lawfully terminate the agreement on the ground relied upon. The Defendant has not demonstrated any contractual provision entitling it to retain the Security Deposit in those circumstances. 97. In Abdalla & another v Sheheena Enterprises Limited (supra), the Court declined to permit a party to retain a deposit where the failure to complete the transaction was attributable to that party’s own failure to perform its obligations. The reasoning applies to the present case. The Defendant cannot retain the Security Deposit when the transaction did not proceed in circumstances in which the Defendant itself failed to perform obligations necessary for its completion. ELCLC E073/2025 JUDGMENT 61

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98. I therefore find that the Plaintiff is entitled to a refund of the Security Deposit of USD 6,129. The Standard Premium of USD 23,698.80 is not refundable by reason of the express term of the Letter of Offer. General damages 78. The Plaintiff also seeks general damages for breach of contract. The settled position is that general damages are not ordinarily recoverable for breach of contract. In Kenya Tourist Development Corporation v Sundowner Lodge Limited [2018] KECA 312 (KLR), the Court of Appeal set aside an award of Kshs. 30,000,000 in general damages and stated: "…as a general rule, general damages are not recoverable in cases of alleged breach of contract and that has been the settled position of law in our jurisdiction, and with good reason. In Dharamshi Vs Karsan [1974] EA 41, the former Court of Appeal held that general damages are ELCLC E073/2025 JUDGMENT 62

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not allowable in addition to quantified damages with Mustafa JA expressing the view that such an award would amount to duplication….The same situation applies to the case at bar in that the respondent having quantified what it considered to have been the loss it suffered, and gone on to particularize the same, there would be absolutely no basis upon which the learned Judge would go ahead to award the totally different, unrelated, unclaimed and unquantified sum of Kshs. 30 million merely because he believed that the respondent “had suffered serious damages' (sic). What was suffered or was believed to have been suffered, the damage that is, to be compensated by way of damages, could only be known by the respondent and it claimed it in specific terms which, in the event, it was unable to prove. To award it anything else would be to engage in sympathetic sentimentalism as opposed to proofbased judicial determination.” ELCLC E073/2025 JUDGMENT 63

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92. The Court reiterated the same position in Kilonzo v Ndolo [2023] KECA 1030 (KLR) holding that: "It is therefore trite law that general damages are not awardable for breach of contract or breach of contractual obligations. A contract for performance of specific duties or obligations, if breached, would lead to compensation for the specific loss suffered because of the breach, but not general damages." 90. The position was restated in Oisebe v Kenya Power and Lighting Company Ltd [2026] KECA 1662 (KLR), where the Court stated: "The reason why courts do not normally award general damages for a breach of contract is because the law aims at strictly compensating quantifiable financial losses arising from breach of ELCLC E073/2025 JUDGMENT 64

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contract rather than punishing the party at fault by awarding general damages and therefore the court would expect a party claiming breach of contract to seek special damages rather than general damages." 92. In the present case, the Plaintiff pleaded loss of business opportunity, loss of legitimate expectations and loss of resources. These claims were not quantified and no specific monetary loss arising from them was proved. The Plaintiff therefore has not established a basis upon which general damages can be awarded. 93. Accordingly, the claim for general damages is dismissed. Permanent injunction 94. The Plaintiff also seeks a permanent injunction restraining the Defendant from interfering with the suit ELCLC E073/2025 JUDGMENT 65

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property. A permanent injunction is granted to protect an established legal or equitable right. The Plaintiff has not established such a right in the property as would warrant the order sought. 95. The agreement contemplated the grant and registration of a lease over the identified premises. That lease was never executed or registered, and the Court has declined the prayer for specific performance. The Plaintiff's claim in relation to the transaction has instead been addressed by an order for refund of the Security Deposit. 96. In those circumstances, there is no present proprietary or possessory interest of the Plaintiff in the suit property which requires protection by a permanent injunction. The prayer for a permanent injunction is therefore declined. Whether the Defendant is entitled to rental arrears of USD 33,128.05 ELCLC E073/2025 JUDGMENT 66

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95. I now turn to the Defendant’s Counter-Claim. The Defendant seeks rental arrears of USD 33,128.05 and general damages on account of the Plaintiff’s alleged breach of the agreement. The Court must therefore consider whether the Defendant has established an entitlement to the sums claimed. 96. The Defendant counterclaims USD 33,128.05 as rental arrears. DW1 testified that the Plaintiff did not pay rent and service charge for the years 2021, 2022 and 2023. The Plaintiff did not dispute that it had not made those payments. The first question is therefore the amount which became due under the Letter of Offer. 97. The Letter of Offer contemplated the leasing of the identified premises to the Plaintiff and provided for payment of rent from 1st August 2022. The obligation to pay rent was therefore connected to the premises which the Plaintiff was to occupy and develop. ELCLC E073/2025 JUDGMENT 67

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98. I have already found that the Defendant did not hand over the specific premises to the Plaintiff. The Plaintiff repeatedly requested to be shown the property, its beacons and the relevant maps. Those requests were not acted upon. The Plaintiff consequently never obtained possession of the premises which it was required to develop. 99. The Defendant's position is that the Plaintiff was nevertheless liable for rent because the Letter of Offer provided for the premises to be taken on an “as-is-where-is” basis. That provision required the Plaintiff to accept the premises in their existing condition and to make its own arrangements for services. It did not dispense with the Defendant's obligation to make the identified premises available to the Plaintiff. 100. In the circumstances proved before the Court, the Defendant cannot demand rent for premises which it did not make available to the Plaintiff. The Plaintiff's failure to pay rent during that period cannot be treated as a breach while ELCLC E073/2025 JUDGMENT 68

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the Defendant itself had not placed the Plaintiff in possession of the premises in respect of which the rent was claimed. 101. I therefore find that the Defendant is not entitled to the rental arrears claimed in the Counter-Claim. Whether the Defendant is entitled to general damages 102. The Defendant also seeks general damages for breach of contract. The principles applicable to such a claim have already been considered in relation to the Plaintiff's claim for general damages. The Defendant has not pleaded or proved any specific loss arising from the alleged breach beyond the rental arrears which I have found it is not entitled to recover. The claim for general damages therefore fails. Who should bear the costs of the suit? ELCLC E073/2025 JUDGMENT 69

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103. The Plaintiff has substantially succeeded in the suit, while the Defendant's Counter-Claim has failed. I therefore award the Plaintiff the costs of the suit and the Counter-Claim. DISPOSITION 104. In the premises, the Plaintiff's suit succeeds in part. I accordingly make the following orders: a) The Plaintiff's claim for specific performance is dismissed. b) The Defendant shall refund to the Plaintiff the sum of USD 6,129 being the Security Deposit paid under the Letter of Offer dated 30 th June 2021, within sixty (60) days from the date hereof. c) The Plaintiff's claims for general damages and a permanent injunction are dismissed. d) The Defendant's Counter-Claim is dismissed e) The Plaintiff shall have the costs of the suit and the Counter-Claim. ELCLC E073/2025 JUDGMENT 70

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It is so ordered. Delivered and Dated at Machakos this 17th day of September, 2026. HON. J. N. KUYIONI JUDGE 17.09.2026 Judgment delivered virtually through Microsoft Teams Video Conferencing Platform In the presence of; Catherine Court Assistant. Ms. Okemwa holding brief for Ms. Nderu for the Plaintiff Mr. Barmao for the Defendant. ELCLC E073/2025 JUDGMENT 71

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