Kilifi Plantation Ltd v Karimi (Civil Appeal E039 of 2023) [2026] KECA 910 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed a Kshs.5.6 million award against Kilifi Plantation, holding the company could not add new contract terms after the deal was done.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether the appellant breached the contract between itself and the respondent so as to warrant the award of Kshs.5,631,621 to the respondent; and
- 2.if the answer to (a) above is in the affirmative, whether the claim of Kshs.5,631,621 was proved.
Key legal issues
#Whether the appellant breached the contract so as to warrant the award of Kshs.5,631,621 to the respondent
The appellant breached the agreement by allocating the suit property to a third party and later demanding specifications (five boreholes) not contained in the original agreement; a party cannot add or modify contract terms through extrinsic evidence.
The letter dated 21st July 2016 confirmed the agreement but did not state the number of boreholes or their specifications. The appellant's later demands as to the number and standard of boreholes came too late and were an affront to the original terms. The appellant allocated the property, the respondent took possession and developed it, and the appellant reneged. Courts cannot rewrite contracts or imply terms, absent fraud or public policy grounds.
Whether the claim of Kshs.5,631,621 as special damages was strictly proved
Yes. Special damages must be specifically pleaded and strictly proved, but proof is not restricted to receipts; a valuation report by a qualified valuer suffices where receipts were not kept and the report was not rebutted.
The law requires special damages to be specifically pleaded and strictly proved, but the degree of certainty depends on the circumstances. The respondent could not have anticipated litigation and kept receipts; the only way to prove expenditure was a valuation. He produced a valuation report of a qualified valuer assessing the developments at Kshs.5,631,621, which the appellant did not rebut. The court concluded the special damages were proved.
Whether the appellant's counterclaim for breach of contract (poor workmanship) was proved
No. The burden lay on the appellant to prove the alleged poor workmanship; it failed to discharge it, and the counterclaim stands dismissed.
The appellant alleged that the boreholes were dry or malfunctioned due to poor workmanship, failure to install casings/screens and use of substandard materials. However, the evidence, including DW1's admission that he had no written complaint on how the boreholes were dug and that both parties had made mistakes, did not establish breach. The trial court's dismissal of the counterclaim was based on evidence and correct principles and was upheld.
Legal principles established
#- A court cannot rewrite an agreement between the parties, neither can a party add or modify the terms of a contract through extrinsic evidence.
- Special damages must be specifically pleaded and strictly proved, but strict proof is not restricted to receipts; what amounts to strict proof depends on the circumstances of the case, and a valuation report may suffice where receipts are unavailable.
- The burden of proving breach of contract and poor workmanship lies on the party alleging it.
Court orders
#- 1.The appeal is dismissed with costs to the respondent.
- 2.The entire Judgment of the Environment and Land Court at Malindi (Odeny, J.) dated and delivered on 8th November 2022 is upheld.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Malindi
- Malindi ELC No. 236 of 2017
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction over Environment and Land Court decisions
Relief refused
#The appellant's prayer that the appeal be allowed, the respondent's claim dismissed and the counterclaim allowed with costs and interest
None of the grounds of appeal merited; the appellant was the defaulting party and the respondent proved the special damages by valuation report.
Costs
The appeal is dismissed 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.
It is trite law that a court cannot rewrite an agreement between the parties, neither can a party add or modify the terms of a contract through extrinsic evidence.
The law on claims for special damages is that they should be specifically pleaded and strictly proved. All that the claimant is required to do is to produce evidence of the expenditure(s) incurred, which is not restricted to receipts.
In sum, we find that none of the grounds of appeal merit. The appeal is hereby dismissed with costs to the respondent. Accordingly, we uphold the entire Judgment of the Environment and Land Court at Malindi (Odeny, J.) dated and delivered on 8th November 2022.
Issues in the judgment
#Internal inconsistency in the record: the judgment states the valuation report was dated 20th May 2016 when first listing the documents, but later refers to it as dated 20th May 2015.
The judgment dates the trial court's judgment as November 2022 in one passage but as 8th November 2022 in another; and the delivery date appears on the face of the judgment as 15th May 2026 although the appeal was heard on 15th October 2025.
Typographical defects in the memorandum of appeal grounds: several distinct grounds are each numbered 'ii.'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kilifi Plantation Ltd v Karimi (Civil Appeal E039 of 2023) [2026] KECA 910 (KLR)", Case Analysis (2026). Court of Appeal at Malindi, appeal from Malindi ELC No. 236 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/910/eng@2026-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.