Hellen Wanjiru Nyaga & another v Bank of Africa Kenya Limited
The bottom line
#A Mombasa court ordered Bank of Africa to refund a property buyer Kshs 45 million with 14% interest after the bank breached their sale agreement.
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 have proved their claim against the defendant
- 2.Whether the defendant has proved its counterclaim against the defendants by counterclaim
- 3.Whether the plaintiffs are entitled to the reliefs sought
- 4.Whether the defendant is entitled to the reliefs sought in the counterclaim
- 5.Who shall bear costs of the suit and counterclaim
Key legal issues
#Whether the defendant breached the sale agreement dated 01.02.2022
Yes - breach found on three grounds: failure to deliver all completion documents under clause 8, repudiation by advertising the property for auction on 19.04.2022, and default on disclosure obligations under clauses 16.7 and 16.9
Only 7 of 9 completion documents were forwarded, with no explanation for the missing rates receipts. The auction advertisement showed the defendant did not consider itself bound by the private treaty sale. The defendant knew of supervening suits and the ARA restriction but failed to disclose them as required by clauses 16.7 and 16.9.
Whether the defendant had good and marketable title at the material time
No - the court rejected the plaintiffs' contention that the chargee lacked good and marketable title on 01.02.2022
The record showed no encumbrances as at the date of the agreement; prior suits had been concluded with no orders against the defendant, and the injunction, stay and ARA restriction all arose after the agreement was made.
Whether the defendant proved its counterclaim for specific performance and mandatory injunctions
No - the counterclaim failed to the required standard
The plaintiffs had paid the full purchase price and owed nothing; the defendant's own breach entitled the plaintiffs to discharge from the agreement; and the transaction could not lawfully be completed given the pending interim court order and Court of Appeal stay.
Whether the plaintiffs were entitled to punitive, aggravated and general damages
No - only the refund of the purchase price with interest was awarded
No legal basis was demonstrated for punitive or aggravated damages, and any additional loss beyond the refund should have been specifically quantified and pleaded as special damages rather than left to general damages.
Legal principles established
#- Costs follow the event under the proviso to section 27 of the Civil Procedure Act
- A vendor's advertisement of the property for auction after a private treaty sale, while holding the purchaser's full purchase price, constitutes breach or repudiation of the sale agreement
- Unquantified additional loss from breach of contract is not recoverable as general damages but should be pleaded and proved as special damages
Court orders
#- 1.A declaration that the Defendant materially breached its warranties and contractual obligations thereby entitling the plaintiffs to be freed of its obligations
- 2.An order for the defendant to refund the Plaintiffs the purchase price of Kshs 45,000,000/= together with interest at 14% per annum with effect from 15.02.2022 until payment in full
- 3.The plaintiffs awarded costs of the suit
- 4.The defendant's counterclaim dismissed in its entirety with costs to the plaintiffs only
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 suit property (Title No. Mombasa/XVII/586); no specific provision cited
Relief refused
#Punitive and aggravated damages at 20% of the purchase price
No legal basis demonstrated for such an award
General damages for breach of contract
Any additional loss should have been quantified and claimed as special damages
Declaration that the transfer by chargee is false and cannot be registered (prayer (b))
Court granted only prayers (c) and (d) of the plaint
Defendant's counterclaim reliefs including specific performance and mandatory injunctions
Counterclaim not proved; breach entitled plaintiffs to be discharged from the agreement
Costs
The Plaintiffs shall be awarded costs of both the suit and the counterclaim; the counterclaim dismissed with costs to the plaintiffs only.
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.
The court finds that the defendant did not fulfil its obligations under clause 8 of the agreement.
The court agrees with the plaintiffs' position that the Defendant's said conduct was a breach or repudiation of the sale agreement dated 01.02.2022.
The court is satisfied that the defendant had full knowledge of the suits which were filed after the making of the sale agreement
The court is thus far from satisfied that the defendant has proved its counterclaim to the required standard.
(ii) An order for the defendant to refund the Plaintiffs the purchase price in the sum of Kshs 45,000,000/= together with interest at 14% per annum with effect from 15.02.2022 until payment in full.
The defendant's counterclaim is hereby dismissed in its entirely with costs to the plaintiffs only.
Issues in the judgment
#Defence and counterclaim dated 15.07.2025 and reply dated 07.02.2026 postdate the plaint of 30.11.2023 but judgment delivered 24.09.2026 - dates appear internally inconsistent
Conflicting references to the restraining proceedings - E049 of 2023 in the reply versus ELC No.51 of 2022 in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hellen Wanjiru Nyaga & another v Bank of Africa Kenya Limited", Case Analysis (2026). ELC Case No. E044 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5781/eng@2026-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.