Tridev Builders Company Limited v Asool Trading and Investment Limited (Environment and Land Case E146 of 2025) [2026] KEELC 1654 (KLR)
The bottom line
#A Kenyan buyer who failed to pay for land on time lost both the purchase and the right to keep occupying it as a tenant.
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 the orders sought in the plaint of specific performance
- 2.Whether the defendant should grant vacant possession
Key legal issues
#Whether the plaintiff proved entitlement to specific performance
Specific performance was refused because the agreement had been lawfully rescinded after the defendant failed to pay the balance within the completion period, leaving no contract to enforce
The defendant paid only the deposit of Kshs.11,100,000/- out of Kshs.111,000,000/- and never paid the balance of Kshs.99,900,000/- due within 90 days. Clause 14.3 permitted rescission after a 21-day completion notice, which the plaintiff duly served. The defendant gave no reason for over two years' delay. There being no subsisting contract, and adequate alternative remedies existing, the equitable remedy of specific performance could not issue.
Whether uncontroverted evidence must be accepted as truthful
No; even uncontroverted evidence must be interrogated and the plaintiff must still prove its case on a balance of probability
Although the defendant did not enter appearance or participate despite service, the court relied on authority that uncontroverted evidence must bring out the fault of a defendant and should not be taken as truthful merely because it is unchallenged. The court therefore independently interrogated the evidence before finding breach of the sale agreement established on the documents and testimony.
Whether the defendant should grant vacant possession
Yes; upon termination of the sale agreement the tenancy merged in it also terminated, making the defendant's occupation illegal and entitling the plaintiff to vacant possession and rental income
Having established breach and lawful rescission, the court held the defendant could not continue benefiting from property it had no rights over. The tenancy provision in the terminated agreement fell away, so occupation became illegal. The plaintiff was entitled to restoration of possession and to the rental income lost from the completion date until vacant possession is given, quantified at Kshs.7,680,000/- plus VAT for the first year.
Legal principles established
#- A court cannot re-write a contract between the parties; parties are bound by the terms of their contract unless coercion, fraud or undue influence are pleaded and proved
- Uncontroverted evidence does not automatically entitle a plaintiff to judgment; the plaintiff must still prove its case on a balance of probability
- Specific performance is a discretionary equitable remedy based on the existence of a valid enforceable contract and will not be ordered where an adequate alternative remedy exists
- Upon lawful rescission of an agreement containing a tenancy, the tenancy terminates and the purchaser's occupation becomes illegal, entitling the vendor to vacant possession and mesne profits by way of rental income
Court orders
#- 1.The defendant to settle the rental income arrears of Kshs.7,680,000/= plus VAT being rent arrears from 15th February 2024 to 15th February 2025
- 2.The defendant to pay rent plus VAT till the date of vacant possession is given to the Plaintiff
- 3.Interest on (a) and (b) above
- 4.The defendant to deliver vacant possession of the suit property in tenantable condition within 30 days of the judgment
- 5.Costs of the suit awarded to the plaintiff
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction over a claim for breach of a sale agreement relating to land (suit property title No. 21688/6)
Relief refused
#Prayer for specific performance of the agreement for sale
The contract was lawfully rescinded by notice, so there was no contract in place to specifically perform, and adequate alternative remedies existed
Plaintiff's advocates' scale fees towards drawing the agreement for sale and deed of variation
Not included among the orders in the final disposition
Payment in full of all utility bills till the date vacant possession is obtained
Not included among the orders in the final disposition
Balance of purchase price of Kshs.99,900,000/-
Specific performance refused; rescission of the agreement upheld instead
Costs
Costs of the suit awarded to the plaintiff
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.
For the foregoing reasons, the plaint dated 4th March 2025 is allowed on the following terms
The defendant to deliver Vacant possession of the suit property in tenantable condition within 30 days of this judgment.
The defendant to settle the Rental income arrears of Kenya shillings seven million six hundred and eighty thousand (Kshs.7,680,000/=) plus VAT being rent arrears from the 15th February 2024 to the 15th February 2025.
Costs of the suit awarded to the plaintifi.
A Court of law cannot re-write a contract between the parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded and proved.
Specific performance like any other equitable remedy is discretionary and the Court will only grant it on well principles
It is not automatic that instances where the evidence is not controverted the Claimants shall have his way in Court. He must discharge the burden of proof.
Issues in the judgment
#Internal inconsistency: the court first finds the plaintiff's rescission notice was lawfully issued and that no contract exists, yet simultaneously holds the plaintiff proved breach entitling it to remedies under the terminated agreement; also the judgment refers to 'plaintiffs' and 'Plaintifis' in the plural while a single plaintiff company testified
Date inconsistency: the plaint is dated 4th March 2025 yet the completion date of the agreement is stated as February 2024 and the judgment notes the balance remained unpaid 'more than two years after the completion date in February 2024', which exceeds the period between February 2024 and the suit filing
Judgment dated 23rd March 2026 but recites a formal proof hearing on 4th December 2025 and submissions dated 27th January 2026, while the earlier text describes the notice of rescission and suit as arising in 2025; the narrative chronology (90-day completion period ending in 2024) is consistent but the 'two years' delay statement conflicts with the filing date
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tridev Builders Company Limited v Asool Trading and Investment Limited (Environment and Land Case E146 of 2025) [2026] KEELC 1654 (KLR)", Case Analysis (2026). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1654/eng@2026-03-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.