Kinyanjui v Arthur (Civil Case E159 of 2025) [2026] KEMC 183 (KLR)

3. The defendant did not enter appearance despite being served. The matter therefore proceeded for hearing in her absence, with the plaintifi testifying as the sole witness. Thereafter, the plaintifi’s learned counsel filed written submissions, which this court has duly considered. Issues, Analysis And Determination 4. The plaintifi herein has sought special damages of Kshs. 50,000/= for various expenses incurred in the botched sale agreement dated 24th January 2025 and general damages. 5. The plaintifi was not only required to plead his claim for special damages concisely but he was also required to strictly proof the claim. He produced a copy of the sale agreement between himself and the defendant for purchase of the subject parcel of land, and also produced copies of Mpesa statements to support his claim for the sum of Kshs. 50,000/=. He established that he had paid Crystal Valuers Ltd a sum of Kshs. 29,000/= and proved that he had paid legal fees of Kshs. 6,000/= and an additional sum of Kshs. 15,000/= as legal fees. The plaintifi’s averments stood unchallenged as the defendant had failed to enter appearance or file a defence in the matter. 6. As to the claim for general damages, the plaintifi’s learned counsel submitted that the claim was intended to remedy the distinct injury to the plaintifi of losing a unique piece of real estate, the loss of investment opportunity and the severe inconvenience caused by the defendant’s breach of the contract. In her submissions, learned counsel conceded the general rule that general damages are not typically awardable for a pure breach of contract. She however referred this court to the case of Delilah Kerubo Otiso v Ramesh Chander Ndingra [2018] KECA 376 (KLR) Kitololo & 2 others v Housing Finance Company HFC Limited (Commercial Case E560 of 2023) [2025] KEHC 17354 (KLR) (Commercial and Tax) (24 November 2025) (Judgment) and Kenya Power & Lighting Co. Ltd v Nelson Osiebe [2020] KEHC 643 (KLR) and Kitololo & 2 Others v Housing in support of the exception to the general rule, where general damages are awarded where the conduct of the respondent is shown to be oppressive, high handed, outrageous, insolent or vindictive. 7. In the case of Delilah Kerubo Otiso (supra), the parties to that suit had entered into a lease agreement for an educational institution together with the premises therein. A few years later, the respondent, who was the lessee built more amenities at his own expense which turned the school into a prestigious learning institution. About a decade after the parties entered into the initial lease agreement, the appellant agreed to sell the premises to the respondent but reneged on the agreement, when he noted the appreciation of income following an advertisement campaign by the respondent. The Court of Appeal in that matter noted the oppressive and underhanded manner in which the appellant had acted. The Court noted that the appellant had received a deposit from the respondent, he had also approached him to redeem a charge held by a financial institution against the school but had done nothing to advance the transaction. He only re-appeared to claim that the agreement was void pursuant to provisions of the Land Control Act. The Court of Appeal noted that the transaction between the parties was more than a transaction involving just land. 8. In the case of Kitololo & 2 others v Housing Finance (supra) the court awarded the plaintifi general damages to vindicate her rights, to compensate her for an 18-month long delay in release of her title despite the defendant’s receipt of payment and the consequent reputational harm she sufiered in her dealings with business partners. 9. In the present case, it was submitted for the plaintifi that land is a unique, non-fungible asset and the loss of a specific parcel of land cannot be remedied by simply refunding the transactional costs via special damages. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/183/eng@2026-06-24 2

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10. The agreement between the parties herein was entered on 24th January 2025. The parties agreed that the agreement would be completed within 90 days after the execution of the agreement. Unlike the facts in the foregoing authorities, a relatively short period of time lapsed before the present suit was instituted after the defendant’s breach of the agreement executed on 24th January 2025. Further, there was no proof that the plaintifi held his end of the bargain by securing the initial deposit of Kshs. 2,500,000/=. 11. Where a party has paid the full purchase price and taken possession of a parcel of land, courts will usually grant the equitable remedy of specific performance as monetary compensation in those circumstances is considered an inadequate remedy. The vendor in such instances holds the title as a constructive trustee of the purchaser. (See Ngabia v Wachiuri & 2 others (Environment and Land Case 71 of 2020) [2026] KEELC 1499 (KLR) (11 March 2026) (Judgment) 12. In this case, the plaintifi has neither proved that he paid the full purchase price nor has he demonstrated that he took possession of the land. The plaintifi has not availed proof that he obtained financing for the initial deposit as agreed. He has also not demonstrated that he made any financial investment in the transaction beyond what is sought. There is also no proof of sentimental attachment to the land, immense frustration as a result of the defendant’s breach or adverse impact on his borrowing capacity. Further, the plaintifi did not lead evidence to demonstrate that the dealings between him and the defendant extended beyond the instant land transaction as was the case in the foregoing authorities Ultimately, this court finds no proof of oppressive, highhandedness or other vindictive conduct by the defendant that would justify an award in general damages. 13. As to the accrual of interest, this court finds that the plaintifi is entitled to interest from the date of filing suit until payment in full has held by the court in the case of Mukisa Biscuits Manufacturing Company Limited v West End Distributors Limited (1970) EA 469 thus; “ The principle that emerges is that where a person is entitled to a liquidated amount or to specific goods and has been deprived of them through the wrongful act of another person, he should be awarded interest from the date of filing suit.” 14. This court therefore makes the following orders; a. Judgment is entered in favor of the plaintifi against the defendant in the sum of Kshs. 50,000/=; b. The plaintifi shall have the costs of the suit; c. Interest shall accrue on (a) and (b) at court rates from the date of filing suit until payment in full. DATED, SIGNED AND DELIVERED AT MURANG’A THIS 24TH DAY OF JUNE 2026. HON. GRACE WAITHĨRA SENIOR RESIDENT MAGISTRATE Judgment Read On The Virtual Platform In The Presence Of; C/a Jeremiah Ms. Kagendo For The Plaintifi No Appearance For The Defendant Mccc E159 Of 2025 Leonard Kioi Vs Elizabeth Njeri- Judgment Page 2 https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/183/eng@2026-06-24 3

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