Mary Kadogo Sungura v Andrew Ngaruiya Mugo & 3 Others

b) Immediate refund of costs of Kshs 1,163,958.47/= incurred by the Plaintiff. c) Liquidated damages of Kshs 450,000/= as per the Sale Agreement. d) An Order of permanent injunction restraining the Defendants, jointly and severally either by themselves, their servants and or agents from carrying out the business of selling as they engaged in fraud on unsuspecting citizens. e) Interest on (a) and (b) and (c) above. f) Costs of this suit. Plaintiff’s Case 2. The Amended Plaint outlines that the Plaintiff entered into a Sale Agreement with the Defendants for Ruiru East/Juja East Block 2/5663 (suit property) approximately 1.361 ha for a consideration of Kshs 1,800, 000/= payable in installments. The Plaintiff paid the purchase price in three installments: Kshs. 900,000/= the initial deposit through one Sarah Karambu to the 1st Defendant, a further deposit of Kshs. 600,000/= to the 1st Defendant, who at all material times carried himself as an agent of the 2 nd and 3rd Defendants, and a final deposit of Kshs. 300, 000/= to the Defendants and was subsequently issued with a receipt. However, despite full payment, the Defendants refused to grant possession or transfer title to the Plaintiff. ELCLC NO. E145 OF 2024 2|Page

page 2 of 16

3. That in December 2018 the Defendants admitted difficulty in transferring the suit property and proposed alternative land. Consequently, on the 21/01/2019, the parties signed an Addendum Agreement and the Defendants deposited with the Plaintiff the titles to DONYO SABUK/DONYO BLOCK 1/3153, 3154, 3152, 3151. 3150 and 3149, all of SABUK/DONYO 1259 located in Machakos County. The Agreement stated transferred to that the if the Plaintiff, suit these property was not parcels would be transferred instead. The Plaintiff, however, later discovered that none Defendants’ of the properties names and were registered argues that in the Defendants failed/refused to honour both agreements. 4. The Plaintiff outlines that the Defendants misrepresented themselves as the beneficial owners of the suit property, received full purchase price but failed/refused to transfer or give possession to the Plaintiff and she thus incurred travel expenses and loans trying to recover the land considering that she works in the USA. Further, the Plaintiff states that searches conducted confirmed that the Defendants owned no single land among the properties promised. In addition, the Agreement provided for liquidated damages of Kshs. 450,000/= in case of breach which the Plaintiff now seeks to enforce. 5. It is the Plaintiff’s case that the Defendants refused to refund the monies despite demand notices and that the 1 st ELCLC NO. E145 OF 2024 3|Page

page 3 of 16

Defendant even asked for facilitation money to look for replacement property. 6. In particular, the Plaintiff pleads special damages comprising of the purchase price of Kshs. 3,600,000/= together with related expenses, brokage fees of Kshs. 100,000/=, fencing costs of Kshs.10, 000/= and facilitation costs of Kshs. 15,000/=. She further incurred significant travel expenses, including multiple air tickets amounting Kshs 1,128,958.47/=. Plaintiff’s Evidence 7. The Plaintiff testified as PW1 and adopted her witness statement dated 18/09/2025 as her evidence in chief and also asked the Court to adopt her list of documents as exhibits contained at pages 15-41 of the trial bundle and asked that the same be produced as evidence before the honourable Court. She reiterated her claim and prayed that the Court assists her in recovering the purchase price together with expenses incurred. Counsel for the Plaintiff thereafter closed the Plaintiff’s case. Plaintiff’s Submissions 8. The Plaintiff through her Counsel submits that her claim arises from breach of Sale Agreement, fraud, failure to transfer property, and refusal to refund the purchase price despite full payment. 9. She avers that she entered into a valid Sale Agreement dated 16/02/2016 with the 1st Defendant for land known as ELCLC NO. E145 OF 2024 4|Page

page 4 of 16

Ruiru East/Juja East Block 2/5663 at a consideration of Kshs. 1,800,000, which she fully paid and that the agreement was witnessed by, among others, the 4th Defendant. She further notes that despite receiving the full purchase price, the 1 st Defendant failed, neglected/refused to transfer the property or grant possession. 10.The Plaintiff submits that later the 1 st Defendant proposed alternative parcels and executed an Addendum Agreement dated 21/01/2019, promising to transfer parcels in DONYO SABUK LR 1259, however, searches conducted by her revealed that none of those parcels belonged to the Defendants, nor did any titles bear their names. 11.She contends that to date, she neither received the properties the properties nor a refund, and the 1 st Defendant has failed to provide a lawful solution. Consequently, she seeks refund of the purchase price, liquidated damages, special damages, costs, and interest thereon. 12.She also submits that on the 6 th of May 2026, the Defendants failed to appear for hearing despite being served with a hearing notice as such she testified and closed her case. 13.On whether a valid enforceable agreement existed, the Plaintiff quotes Section 3(3) of the Law of Contract Act and Section 38(1) of the Land Act, where both require contracts for disposition of land to be in writing, signed, and witnessed. She argues the Sale Agreement dated 16 th ELCLC NO. E145 OF 2024 5|Page

page 5 of 16

February, 2016 satisfied these requirements. She further cites Nelson Harun (Practicing Law as Nelson Harun & Company Advocates) v Land Registrar, Kajiado North District & Another; Perirose Limited (Interested Party) (Environment & Land Case 340 of 2017) [2024] KEELC 5906 (KLR) (17 September 2024) where the Court held that a written Sale Agreement is a prerequisite for validity. She adds that the Addendum Agreement of 21/01/2019 reaffirmed the 1st Defendant’s obligations and acknowledged debts owed to the her. 14.The Plaintiff argues that she fully performed her obligations by paying the entire purchase price and additional expenses and that the 1st Defendant failed to transfer the property, grant possession, provide valid titles or refund monies owed which conduct amounts to fundamental breach and fraud. She cites Section 13(5)(a) and (e) of the Environment and Land Court Act, 2011 which empowers the Court to grant injunctions and specific performance. She places further reliance on Sections 24(a) and 26(1) (a) and (b) of the Land Registration Act, 2012 which vests absolute ownership in registered proprietors and allows challenge of title obtained through fraud or misrepresentation respectively. 15.The Plaintiff submits that the Defendant’s conduct amounted to fraudulent misrepresentation inducing her to part with money and cites Elijah Mbatha v Madivest Co. Ltd [2018] KEELC 3033 [KLR], where breach entitled ELCLC NO. E145 OF 2024 6|Page

page 6 of 16

purchaser to refund and liquidated damages. Court held purchasers are entitled to refund with interest upon vendor’s breach. 16.She further submits that Clause 8 of the 2016 Sale Agreement provided for 25% liquidated damages upon breach, she therefore seeks refund of Kshs. 1,800,000/=, liquidated damages and attendant costs. 17.The Plaintiff reiterates she paid Kshs. 1,800,000/= in full and is entitled to refund upon vendor’s breach and relies on Kiley Ltd v Virginia Wanjiku Kimani [2013], KEHC 6265 [KLR] where Court ordered a refund after vendor failed to complete sale. 18.Additionally, she invokes Section 120 of the Evidence Act (Cap 80) Laws of Kenya which provides for the doctrine of estoppel, barring a party from denying facts which by their conduct induced another to believe and act upon it. She argues that the Defendants received and acknowledged money, represented ownership, and are thus estopped from denying liability. 19.Further she premises her claim on Section 107(1) of the Evidence Act (Cap 80) Laws of Kenya which places burden of proof on the party asserting facts. She avers that she bears this burden by producing agreements, receipts, search results, and travel records and specifically pleaded and proved special damages; purchase price, brokerage fees, ELCLC NO. E145 OF 2024 7|Page

page 7 of 16

fencing costs, facilitation costs, and air ticket/travel expenses, supported by receipts. 20.The Plaintiff submits that Clause 8 of the Agreement provided for 25% of purchase price (Kshs. 450,000/=) as liquidated damages. She invokes Section 13(7) of the ELC Act, 2011 which empowers Court to award damages and injunctive relief. 21.She further states that Courts consistently uphold liquidated damages clauses and cites Kiley Ltd v Virginia Wanjiku Kimani [2013] supra and Irungu v Muchoki [2018] KEELC 4919 [KLR] in both contractual penalty clauses were enforced clauses. She thus urges enforcement of clause and award of Kshs. 450,000/=. 22.The Plaintiff acknowledges that Courts rarely award general damages for breach of contract but argues exceptional circumstances exist due to fraud and deceit. She refers to Section 3A of the Civil Procedure Act, 2010 which gives Court inherent powers to ensure justice is done. Additionally, she invokes Article 10 of the Constitution of Kenya, 2010 which enshrines integrity, transparency, and accountability, which she argues the Defendants violated as they induced the Plaintiff to part with money while purporting to own land they did not. She stresses that their conduct was fraudulent, oppressive and malicious warranting general damages. ELCLC NO. E145 OF 2024 8|Page

page 8 of 16

23. Further, she maintains that the Defendants conduct was fraudulent, oppressive, and malicious, warranting general damages. 24.On the order for permanent injunction the Plaintiff submits that Section 13(5)(a) of the ELC Act, 2011, empowers Court to issue injunctions and thus this Court has jurisdiction to issue permanent injunctions. 25.The Plaintiff also submits that Article 159(2)(d) of the Constitution of Kenya, 2010, requires that justice be carried out without undue regard to technicalities. She further argues that Defendants have shown a pattern of fraudulent land dealings and the Court has jurisdiction under Article 162(2)(b) of the Constitution of Kenya 2010 and Section 13 of the ELC Act, 2011, to restrain the Defendants from further fraudulent land sales. 26.In conclusion the Plaintiff submits she has proved her case on a balance of probabilities pursuant to Sections 107 and 109 of the Evidence Act. She also emphasizes that the 1 st Defendant received money, failed to transfer property, failed to refund the monies owed and misrepresented ownership. Accordingly, she prays that the Court enters Judgment against the Defendants jointly and severally for the refund of Purchase price Kshs. 1,800,000/=, Special damages of Kshs. 1,163,958.47/=; Liquidated damages of Kshs. 450,000/, general damages, an order of permanent injunction, interest thereon and costs. ELCLC NO. E145 OF 2024 9|Page

page 9 of 16

27.The Claim remains uncontested. Issues for Determination 28.Having considered the Plaintiff’s Case, the issues for determination are: 1) Whether a valid and enforceable contract for the sale of land subsisted between the parties pursuant to Section 3(3) of the Law of Contract Act. 2) Whether the Defendants committed a fundamental breach of contract and fraudulent misrepresentation by failing to transfer the suit property or provide alternative parcels. 3) Whether the Plaintiff is entitled to the reliefs sought, including the refund of the purchase price, special damages, liquidated damages, permanent injunction, interest, and costs. Analysis and Determination 29.On the first issue, the threshold question before this Court is whether the transactions between the Plaintiff and the Defendants met the mandatory legal requirements governing contracts for the disposition of interest in land. The Plaintiff relied on a Sale Agreement dated 16/02/2016 for the parcel known as Ruiru East/Juja East Block 2/5663 and a subsequent Addendum Agreement dated 21/01/2019. 30.Section 3(3) of the Law of Contract Act expressly provides that no suit shall be brought upon a contract for the ELCLC NO. E145 OF 2024 10 | P a g e

page 10 of 16

disposition of an interest in land unless the agreement is in writing, signed by all the parties thereto, and the signature is attested by a witness who signed in the presence of the appertaining party. Similarly, Section 38(1) of the Land Act reinforces that contracts for land disposition must adhere to these statutory formalities to be legally efficacious. 31.The record demonstrates that the initial Sale Agreement and the subsequent Addendum Agreement satisfied these statutory dictates, having been duly executed in writing and witnessed. This position is anchored on the binding principle that a written Sale Agreement serves as a foundational prerequisite for validity in land transactions. Consequently, this Court finds that a valid, binding, and enforceable contractual framework subsisted between the parties. 32.This was observed in the case of Njoroge v Maina (ELC 239 of 2017) [2023] KEELC 20293 (KLR) where the Court in its ruling made reference to the fact that because the land Sale Agreement identified the property, specified the consideration, and was properly executed and witnessed, it satisfied the foundational statutory prerequisites to constitute a valid, binding framework as is the case in the matter at hand. 33.Additionally, in Kitonga & 2 Others v Hashtag Biz Hub Company Limited (Environment and Land Appeal E036 of 2025) the Court made the observation that this particular case forcefully reaffirmed that written execution and witness ELCLC NO. E145 OF 2024 11 | P a g e

page 11 of 16

attestation are not mere structural technicalities but are literal statutory dictates fundamental to the life of a property contract. 34.As to second issue, it is established through uncontroverted oral and documentary evidence that the Plaintiff fully discharged her contractual obligations by paying the entire purchase price of Kshs 1,800,000/= to the Defendants. Despite this full payment, the Defendants failed, neglected, and refused to transfer the suit property or grant vacant possession. Their subsequent attempt to remedy this default through an Addendum Agreement substituting the parcel with alternative lands in Donyo Sabuk proved to be illusory, as official land searches revealed that the Defendants held no proprietary interest in those alternative parcels either. 35.The Defendants' conduct of purporting to sell land they did not own, receiving money under false pretenses, and failing to honour contractual covenants amounts to a fundamental breach of contract and fraudulent misrepresentation. Section 26(1)(a) and (b) of the Land Registration Act, 2012 provides that a certificate of title is absolute and indefeasible save where it is proved that the title was acquired through fraud or misrepresentation to which the proprietor is a party. Here, the Defendants did not even hold valid titles to pass. Furthermore, under Section 120 of the Evidence Act (Cap 80), the doctrine of estoppel applies to prevent the Defendants ELCLC NO. E145 OF 2024 from denying liability, having by their 12 | P a g e

page 12 of 16

representations induced the Plaintiff to alter her position to her detriment. 36.In evaluating similar commercial defaults, the Courts have consistently maintained that where a vendor fails to complete a sale of land or transfer the property as covenanted despite the purchaser paying the full purchase price, the purchaser is entitled to treat the contract as repudiated and demand an immediate refund of the purchase price together with interest. A party in breach cannot retain purchase monies where no consideration passes, and the Court will readily compel restitution to restore the innocent party. 37.In light of the foregoing, the Plaintiff has discharged her burden of proof under Sections 107(1) and 109 of the Evidence Act. The Defendants' total failure to render performance constitutes a grave repudiation of the contract, entitling the Plaintiff to rescind the agreement and claim restitution alongside agreed damages. 38.On the third issue; the Plaintiff has specifically pleaded and strictly proved her expenses incurred brokerage fees, special while and damages, commuting fencing costs, including travel from USA, the supported by documentary receipts. Under Kenyan civil procedure, special damages must not only be strictly pleaded but also strictly proved, a standard the Plaintiff successfully met. ELCLC NO. E145 OF 2024 13 | P a g e

page 13 of 16

39.Regarding liquidated damages, Clause 8 of the Sale Agreement expressly stipulated a 25% penalty amounting to Kshs 450,000/= in the event of a breach. Kenyan Courts routinely enforce unambiguous liquidated damages clauses freely entered into by competent parties, given that contracting parties are strictly bound by the terms of their agreements for sale. 40.Concerning the prayer for a permanent injunction, Section 13(5)(a) of the Environment and Land Court Act, 2011 empowers this Court to grant injunctions and orders of specific performance to secure the ends of justice. Given the undisputed pattern of fraudulent land transactions exhibited by the Defendants, an injunction is merited to protect the public and uphold the tenets of transparency and accountability enshrined under Article 10 and Article 159(2) (d) of the Constitution of Kenya, 2010. 41.Accordingly, Judgment is hereby entered for the Plaintiff against the Defendants, jointly and severally, in the following terms: i) An order is hereby issued for the immediate and full refund of the purchase price of Kshs 1,800,000/= to the Plaintiff by the Defendants. ii) An order is hereby issued for the immediate refund of special damages/expenses amounting to Kshs 1,163,958.47/= incurred by the Plaintiff. ELCLC NO. E145 OF 2024 14 | P a g e

page 14 of 16

iii) The Defendants shall pay to the Plaintiff liquidated damages of Kshs 450,000/= pursuant to Clause 8 of the Sale Agreement. iv) An Order of Permanent Injunction is hereby issued restraining the Defendants, jointly and severally, whether by themselves, their servants, and/or agents, from carrying out fraudulent land selling businesses or misrepresenting ownership of parcels of land to unsuspecting members of the public. v) Interest shall accrue on items (i), (ii), and (iii) above at Court rates from the date of filing suit until payment in full. vi) The Plaintiff is awarded the costs of this suit against the Defendants, jointly and severally. It is so ordered. DATED, SIGNED AND DELIVERED AT THIKA THROUGH MICROSOFT TEAMS ON THIS 6TH DAY OF OCTOBER, 2026. ……………....……… MOGENI J JUDGE Judgment read in virtual Court in the presence of: Mr. Mathenge for the Plaintiff Mr. Andrew – 1st Defendant in person ELCLC NO. E145 OF 2024 15 | P a g e

page 15 of 16

2nd and 3rd Defendants – Absent Ms. Sarah Karumba – 4th Defendant in person Mr. Melita - Court Assistant. ………….....………… MOGENI J JUDGE ELCLC NO. E145 OF 2024 16 | P a g e

page 16 of 16