Ngugi v Ngugi (Environment and Land Appeal E045 of 2023) [2025] KEELC 7455 (KLR)
The bottom line
#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 appeal should be allowed as prayed.
- 2.Who shall bear costs of the appeal?
Key legal issues
#First appellate court's duty on re-evaluation of evidence
The court must reconsider and re-evaluate the evidence and draw its own conclusions while allowing for the trial court's advantage of observing witness demeanor.
The court adopted the settled principles from Seascapes Limited and Selle v Associated Motor Boat Co. Ltd: a first appellate court relooks at the evidence afresh but, having neither seen nor heard the witnesses, gives allowance for demeanor findings. It may not substitute its own view merely because it would have decided differently at first instance.
Whether the Appellant proved entitlement to specific performance of the sale agreements
No. The Appellant failed to pay the balance and failed to transfer the motor vehicle within 90 days, entitling the vendor to rescind under Clauses C and D; the trial court's dismissal of the claim was correct.
Clause C and D of the 14/02/2018 agreement allowed rescission if the vehicle was not transferred within 90 days. The Appellant admitted he never transferred the vehicle (which was not even in his name) and owed Kshs 500,000. His alleged oral variation to pay Kshs 5,000,000 in lieu was denied and unproven. The conduct of the parties confirmed breach and lawful rescission by the seller.
Whether the deposit paid (Kshs 1,100,000) should have been the subject of judgment (unjust enrichment)
The court made no award on the deposit; the agreement did not expressly state what would happen to the deposit received and no interference with the trial court's decision was warranted.
The court noted the contract was silent on the fate of the deposit and that rescission was an option exercised by the vendor. The Appellant sought no independent relief on the deposit that succeeded; the appeal on all grounds failed and the trial judgment was left undisturbed.
Costs of the appeal
Costs follow the event; the Respondent, who successfully defended the appeal, ought to have been awarded costs, and costs were so awarded.
Applying Section 27 of the Civil Procedure Act, the court held that the trial magistrate had directed each party to bear its own costs, but the Respondent ought to have been awarded costs since the suit was properly dismissed. Costs of the appeal were accordingly awarded to the Respondent.
Legal principles established
#- A first appellate court must re-evaluate the evidence afresh and reach its own conclusions, but must give due allowance to the trial court's advantage of seeing and hearing the witnesses, and may not disturb findings merely because it would have reached a different result.
- Courts will not re-write contracts for contracting parties; parties are bound by their voluntary undertakings, and where a defaulting party's contract is lawfully rescinded, specific performance will not be granted.
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal are awarded to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Senior Principal Magistrate's Court, Kikuyu
- not stated on record provided
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court suit (Section 13(7)(a) of the Environment and Land Court Act, 2011 invoked by the Appellant in his prayers)
Relief refused
#Allowing the appeal and setting aside/quashing the subordinate court judgment dismissing the Plaintiff's claim for specific performance
The Appellant breached the Agreements for Sale dated 19/11/2017 and 14/02/2018 by failing to transfer Motor Vehicle KBX 106W to the Respondent within 90 days and failing to pay Kshs 500,000; the contract was lawfully rescinded by the vendor and the trial court's finding disclosed no manifest error.
Costs
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.
Ultimately, it is the view of the Court that the Appellant has not demonstrated any manifest error on the part of the Learned Magistrate's decision and thus the Appeal fails.
Costs to the Respondent.
it is settled law, as submitted by the Respondent that contracts are voluntary undertakings and Courts cannot be seen to re-write contracts for the contracting parties.
it is not open to the first Appellate Court to review the findings of a trial Court simply because it would have reached difierent results if it were hearing the matter for the first time.
The prayer for specific performance would therefore not be awarded in the circumstances the Respondent ought to have been awarded costs.
Issues in the judgment
#Judgment leaves blank the dates on which the parties filed written submissions
Inconsistent dates given for the first sale agreement - paragraph 1 refers to a Sale Agreement dated 9/11/2017 while the trial court findings and subsequent passages refer to 19/11/2017
Typographical errors throughout ('Plaintifi', 'Kesh', 'efiected') in the record as provided
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngugi v Ngugi (Environment and Land Appeal E045 of 2023) [2025] KEELC 7455 (KLR)", Case Analysis (2025). Appeal dated 22/05/2023 (Kikuyu PMCC Suit, Judgment of SPM Jacinta Orwa delivered 12/05/2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7455/eng@2025-11-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.