Fit- Tight FA-Steners Limited v Akiba Bank Limited (Civil Appeal 218 of 2019) [2026] KECA 139 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that an unsigned land sale agreement is unenforceable, so a buyer who paid a deposit could not recover damages for breach.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there was a binding contract between the parties to the suit
- 2.Whether the appellant is entitled to damages
Key legal issues
#Whether the correspondence between the parties constituted a binding contract, including one for the sale of land compliant with section 3(3) of the Law of Contract Act
There was no binding contract. The sale agreement for the land was never executed by the respondent and thus offended section 3(3); as to the movables, no evidence apportioned any part of the single Kshs. 4.5 million deposit to the goods so as to bring the transaction under the Sale of Goods Act.
The Court compared the letters of 11th August 2004 and 30th June 2005 and noted a single deposit covering both movable and immovable property with no allocation. The formal sale agreement was never counter-executed by the respondent. Mumias Sugar was distinguished because it predated the 2003 amendment to section 3(3). Accordingly no contract existed, whether for the land or the goods.
Whether the appellant was entitled to damages for breach of contract
No. With no contract there could be no breach and no damages founded on it; special damages were not pleaded and strictly proved, and no exceptional conduct warranted general damages.
The appellant's 'simply damages' claim for wasted outlay, legal fees and interest resolved into special or general damages. Special damages must be pleaded and strictly proved. General damages are not available for breach of contract except where conduct is oppressive, high-handed, outrageous, insolent or vindictive, which was not demonstrated.
Legal principles established
#- A contract for the disposition of an interest in land must be in writing, signed by all parties, and attested by a witness under section 3(3) of the Law of Contract Act; unsigned agreements for the disposition of land are unenforceable.
- There can be no estoppel against an Act of Parliament, and no binding contract arises from an unexecuted agreement for the disposition of land.
- General damages are not ordinarily awardable for breach of contract, save in exceptional circumstances where the defendant's conduct is oppressive, insolent, high-handed, outrageous or vindictive.
- Special damages must be specifically pleaded and strictly proved.
Court orders
#- 1.Dismissal of the appeal with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (the judgment identifies itself as 'a first appeal')
Relief refused
#Damages for breach of contract (including 'simply damages' for wasted outlay, legal fees, title investigation expenses and interest on the deposit)
There was no binding contract, so damages could not be founded on it; special damages were neither pleaded nor strictly proved; no exceptional conduct justified general damages.
Specific performance and order for execution of the sale agreement
No contract enforceable under section 3(3) of the Law of Contract Act existed; the suit property had also been transferred to a third party.
Costs
The appeal was dismissed with costs to the respondent - "we find that this appeal has no merit and dismiss this it with costs to the respondent."
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
We therefore, find that there was no binding contract between the appellant and the respondent.
Consequently, we find that this appeal has no merit and dismiss this it with costs to the respondent. It is so ordered.
since there was no contract, damages cannot be sought based on the nonexistent contract
general damages cannot be awarded for breach of contract and that proposition makes sense because damages arising from a breach of a contract are usually quantifiable and are not at large
Being first appeal we must re-evaluate the evidence and come to our own conclusions but always bearing in mind that we did not hear the witnesses nor observe their demeanour.
Issues in the judgment
#The judgment refers to the Transfer of Property Act both as '1882' and '1982' in different passages.
Typographical errors in the text, e.g. 'ofier' for 'offer' and 'dismiss this it'.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kimani & another v Mohammed alias Jaro Mohammed Abdi & 2 others (Enviromental and Land Originating Summons E022 of 2022) [2026] KEELC 5192 (KLR)[2026] KEELC 5192 (KLR)29 Jul 2026applied
Cite this brief
#Cite this brief
Caselaw, "Fit- Tight FA-Steners Limited v Akiba Bank Limited (Civil Appeal 218 of 2019) [2026] KECA 139 (KLR)", Case Analysis (2026). Not stated in the judgment (memorandum of appeal dated 22nd May 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/139/eng@2026-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.