Suleiman v M'Kiunga (Environment and Land Case 358 of 2009) [2025] KEELC 6108 (KLR)
The bottom line
#A Mombasa court ruled a land seller who sub-divided sold plots must transfer them to the buyer, who rightfully withheld payment until the title was issued.
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 valid legal agreement between the parties
- 2.Whether there was a breach of the said agreement by either of the parties
- 3.Whether the parties are entitled to the orders sought in the Amended Plaint and Amended Counter-Claim respectively
- 4.Who bears the costs of the suit and the Counter-Claim
Key legal issues
#Validity of the sale agreement dated 9th September, 2003
The sale agreement was valid and enforceable, having been made in writing, signed by both parties before a qualified advocate, and containing names, property description, purchase price and payment conditions, complying with Section 3(3) of the Law of Contract Act and Section 38 of the Land Act
The court reproduced the agreement and tested it against Section 3(3) of the Law of Contract Act (Cap. 23) and Section 38(1) and (2) of the Land Act, No. 6 of 2012. Both require a written contract signed by all parties with signatures attested by a witness. The agreement was signed before C.K. Areba Advocate and contained parties' names, property description, price and payment terms, satisfying the statutory formalities. The Plaintiff's complaint that the agreement was drafted by the Defendant's advocate did not invalidate it.
Whether either party breached the agreement
It was the Plaintiff who breached the agreement by failing to deliver the title and by sub-dividing the suit property after selling it; the Defendant's non-payment of the balance was consistent with the term deferring payment until issuance of title
The agreement provided that the final balance would be paid after issuance of title. The Defendant therefore could not be in breach for withholding the balance of Kshs. 320,000/-. The Plaintiff, however, failed to procure the title and sub-divided Plot 21 into MN/I/12860 and MN/I/12861, contrary to the terms of the sale. The court held she was estopped from departing from the agreement's terms, and no coercion, fraud or undue influence was pleaded or proved to justify court intervention.
Entitlement to the orders sought in the Amended Plaint and Counter-Claim
The Plaintiff's suit failed and the Defendant's Counter-Claim succeeded; the Defendant was declared true owner of MN/I/12860 and MN/I/12861 and the Plaintiff was ordered to transfer both parcels
Having found the Plaintiff in breach, the court invoked Sections 40 and 42 of the Land Act on redress for breach of contracts for the sale of land and Section 80 of the Land Registration Act on rectification. The court reasoned that a vendor in breach cannot keep the deposit and sub-divide land already disposed of for valuable consideration, and directed the Plaintiff to honour her obligation to transfer the land, allowing the Counter-Claim in its entirety.
Legal principles established
#- A contract for the disposition of an interest in land must be in writing, signed by all parties and witnessed to be valid and enforceable
- Courts cannot rewrite contracts voluntarily entered into by parties unless coercion, fraud or undue influence is pleaded and proved
- Costs follow the event; the party who on the whole succeeds gets the general costs
Court orders
#- 1.Judgment entered in favour of the Defendant, the Plaintiff in the Counter-Claim, in respect of the Amended Defence and Counter-claim dated 10th June, 2013 in its entirety with costs
- 2.The Plaintiff's (Defendant in Counter-Claim) case as per the Amended Plaint dated 19th January, 2024 found to lack merit and dismissed with costs
- 3.A declaration that the Defendant is the true owner of the land known as sub-division numbers MN/I/12860 and MN/I/12861
- 4.An order directing the Plaintiff/Defendant in the Counter-Claim to transfer to the Defendant/Plaintiff in the Counter-Claim all that land known as sub-division numbers MN/I/12860 and MN/I/12861
- 5.The Defendant/Plaintiff in the Counter-Claim to have the costs of the Amended Plaint dated 19th January, 2024 and the Amended Statement of Defence and Counter-Claim dated 10th June, 2013
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the land dispute and the Defendant's Counter-Claim
Relief refused
#The Plaintiff's claims: mandatory injunction to demolish structures, compensation at market value, general damages for trespass and breach of contract, and specific performance
The court found the Plaintiff herself in breach of the sale agreement by failing to provide the title and sub-dividing the suit property, so her suit failed
Costs
Costs of the Amended Plaint and of the Amended Statement of Defence and Counter-Claim awarded to the Defendant/Plaintiff in the Counter-Claim, to be paid by the Plaintiff/Defendant in Counter-Claim
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.
A look at the said sale agreement confirms that it is a valid sale agreement which is enforceable by the parties.
In the absence of any evidence from the Plaintifi, it is my considered view that, it is the Plaintifi who was in breach of the sale agreement dated 9th September, 2003, terms and conditions stipulated thereof.
The Plaintifi has to honor her obligation to transfer the land to the Defendant.
That a declaration be and is hereby made that the Defendant is the true owner of the land known as sub - division numbers MN/I/12860 and MN/I/12861.
That an order be and is hereby made directing the Plaintifi/ Defendant in the Counter - Claim to transfer to the Defendant/ Plaintifi in the Counter - Claim all that land known as sub division numbers MN/I/12860 and MN/I/12861.
That the Defendant/Plaintifi in the Counter - Claim shall have the costs of the Amended Plaint dated 19th January, 2024 and the Amended Statement of Defence and Counter - Claim dated 10th June, 2013.
Issues in the judgment
#The judgment inconsistently dates the sale agreement as 9th September, 2003 and 9th November, 2003 in different passages
The Defendant is described inconsistently by gender: 'The Defendant was described as an adult male ... She was a citizen of Kenya' and the Defendant is referred to as both 'he' and 'she' throughout
The judgment states it framed 'three (4) Issues' - an internally contradictory count
The testimony records irreconcilable payment figures - the Plaintiff testified a balance of Kshs. 300,000/= while the Defendant's witness testified a balance of Kshs. 320,000/=, and the court itself used both figures
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Suleiman v M'Kiunga (Environment and Land Case 358 of 2009) [2025] KEELC 6108 (KLR)", Case Analysis (2025). Not stated in the judgment (Mombasa Environment and Land Court civil suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6108/eng@2025-09-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.