Mungai & another v Cheska Agencies Limited & 3 others (Environment and Land Case 388 of 2017) [2026] KEELC 741 (KLR)
The bottom line
#A Kenyan court dismissed land buyers' claims because they didn't pay on time, and refused a refund since they never asked for one in their lawsuit.
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 Plaintiffs are entitled to an order of specific performance
- 2.Whether the Plaintiffs are entitled to an order of mesne profits
- 3.Whether the Lease registered to the 2nd Defendant should be cancelled
- 4.Whether the 3rd and 4th Defendants should be compelled to hand over vacant possession to the Plaintiffs
Key legal issues
#Whether the Plaintiffs were entitled to specific performance of the sale agreement dated 8th September 2016
Specific performance refused; the Plaintiffs failed to pay the balance of the purchase price by the completion date and were not ready and willing; they are entitled only to a refund (which they did not plead)
PW1 admitted in cross-examination that he drew the agreement as the 1st Defendant's advocate, that the search showed the property charged for over Kshs.4 million, and that Clause 7 required the purchasers' financier to redeem Kshs.1.6 million to obtain the discharge of charge. The Plaintiffs never paid the balance by the 90-day completion date, and even after the court's injunctive order of 15th June 2017 they deposited the Kshs.5 million twelve days late. Following the authorities on rescission for non-payment, the court held the Plaintiffs failed the criteria for specific performance, noting the title had already passed to a third party.
Whether the Plaintiffs were entitled to mesne profits of Kshs. 6,700,000
Claim for mesne profits dismissed for want of proof
Section 2 of the Civil Procedure Act defines mesne profits as profits actually received or which might with ordinary diligence have been received by a person in wrongful possession. The Plaintiffs never took possession, never acquired title since the sale was never completed, and produced no valuation report to substantiate the claimed Kshs.100,000 per month, relying instead on projections from the 1st Defendant. Applying the requirement that the claimant place material before the court demonstrating how the amount was computed, the court found the claim unproved.
Whether the lease registered in the 2nd Defendant's name should be cancelled and vacant possession ordered against the 3rd and 4th Defendants
Title not cancelled; the 2nd Defendant proved lawful acquisition for value and the 3rd and 4th Defendants lawfully purchased from the registered proprietor
Under Section 26 of the Land Registration Act a certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud or misrepresentation to which the proprietor is party, or where acquired illegally, unprocedurally or through a corrupt scheme. The 2nd Defendant entered its agreement on 17th May 2016, before the Plaintiffs' agreement, paid the full purchase price by redeeming the KCB charge, and obtained registration. The 3rd and 4th Defendants conducted due diligence showing nil encumbrance and paid Kshs.10.5 million. No fraud was proved against the 2nd Defendant, so the title stands and possession claims fail.
Legal principles established
#- A purchaser must prove readiness and willingness to perform his contractual obligations, including timely payment of the purchase price, to earn specific performance
- Non-payment of the full purchase price as stipulated renders a sale agreement voidable at the instance of the innocent party
- A registered title is prima facie indefeasible and may be challenged only on grounds of fraud or misrepresentation to which the proprietor is proved to be a party
- A claim for mesne profits must be supported by material demonstrating how the amount claimed was computed
- Evidence must support the pleadings; a party is bound by its pleadings and relief not pleaded cannot be granted
Court orders
#- 1.The Plaintiffs' suit is dismissed
- 2.Costs of the suit awarded to the Plaintiffs, 2nd, 3rd and 4th Defendants, to be borne by the 1st Defendant
- 3.The Plaintiffs are directed to file a fresh suit to claim refund of the purchase price from the 1st Defendant and to obtain the monies they deposited in Court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction over a claim relating to land (sale of Nairobi/Block 129/289), including prayers for specific performance, injunction, cancellation of title and mesne profits
Relief refused
#Specific performance of the sale agreement dated 8th September 2016
Plaintiffs did not pay the balance of the purchase price within the contractual completion period and did not perform their obligations as agreed
Cancellation of the 2nd Defendant's certificate of lease and registration of the suit land in the Plaintiffs' names
No proof of fraud; the 2nd Defendant lawfully acquired the land from the registered owner for value
Mesne profits of Kshs. 6,700,000
Plaintiffs neither took possession nor proved the basis of the claim with a valuation report
Permanent and mandatory injunction and vacant possession against the Defendants
Flowing from failure of the main claims; the 2nd Defendant was legitimate owner and sold to the 3rd and 4th Defendants who took possession
Refund of the deposit/purchase price
Refund was never pleaded, and parties are bound by their pleadings
Costs
Costs of the suit awarded to the Plaintiffs, 2nd, 3rd and 4th Defendants, to be borne by the 1st Defendant
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.
In the foregoing, I find that the Plaintifis have not proved their case on a balance of probability and will proceed to dismiss it.
Costs of the suit is awarded to the Plaintifis, 2nd, 3rd and 4th Defendants to be borne by the 1st Defendant.
I direct the Plaintifis to file a fresh suit to claim the refund of the purchase price from the 1st Defendant and also obtain the monies they deposited in Court.
I find that the Certificate of title for the suit land, which is in the 2nd Defendant’s name is legitimate and will decline to cancel it.
I find that the Plaintifis are not entitled to specific performance as claimed but a refund of the amounts paid to the 1st Defendant towards the purchase price
it is not the business of Courts to rewrite contracts between parties, they are bound by the terms of their contracts, unless coercion, fraud or undue infiuence are pleaded and proved.
Issues in the judgment
#The judgment states the Plaintiffs did not plead refund, yet the 1st Defendant's defence and the disposition itself engage refund of the deposit; the court nonetheless directs a fresh suit
Inconsistent completion dates appear: the 1st Defendant's pleaded completion is 18th December 2016 in one passage and 8th December 2016 elsewhere
Citation for Sehmi & another v Tabarana Company Limited appears internally inconsistent, describing a Petition E030 of 2023 as [2005] KESC 21 (KLR)
The Plaintiffs' deposit is inconsistently pleaded: the Plaint asserts a deposit of Kshs.2.5 million while the 1st Defendant claims only Kshs.1.8 million was paid; DW1 in cross-examination acknowledged Kshs.2.5 million was paid
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mungai & another v Cheska Agencies Limited & 3 others (Environment and Land Case 388 of 2017) [2026] KEELC 741 (KLR)", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/741/eng@2026-02-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.