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ELCAllowedELC Case No. E054 of 2022

James Muchiri Waweru & Another v Faith and Hope Properties Kenya Ltd

Environment and Land Court of Kenya
23 September 2026
3,080 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Machakos land court cancelled a property sale after the buyer failed to pay, awarding the sellers Kshs. 5 million and costs.

What this practically means

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Executive summary

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The plaintiffs, registered proprietors of eight parcels known as Mavoko Town Block 3/13128 to 3/13135 in Machakos County, sued Faith and Hope Properties Kenya Ltd over a sale agreement dated 18th January 2019. Under the agreement the defendant paid a 10% deposit of Kshs. 2,593,750/-, applied to parcel 3/13134 (which was transferred to it), with the balance of about Kshs. 23,343,750/- payable within 120 days. The defendant never completed payment. The plaintiffs issued a notice of default and a deed of rescission and sought permanent injunctions, annulment of the agreement, damages for trespass and conversion, and costs. The defendant blamed the plaintiffs' breach and lack of cooperation, including an ineffective survey and reduced acreage, but called no evidence and filed no submissions; its case was marked closed. The court framed four issues: breach, validity of rescission, entitlement to injunctions and damages, and costs. Applying sections 107 and 109 of the Evidence Act, it held the burden remained on the plaintiffs notwithstanding the defendant's absence, and that breach was proved. Relying on the Law Society Conditions of Sale incorporated by clause 4, it found the rescission valid after due notice. As registered proprietors under sections 24 and 25 of the Land Registration Act, the plaintiffs were entitled to injunctions; trespass being actionable per se and conversion requiring proof of ownership, the court awarded Kshs. 5,000,000/= as damages for trespass and conversion, granted the injunctions and annulment over the seven unpaid parcels, and awarded costs to the plaintiffs. No refund of monies paid was ordered.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the defendant breached the agreement for sale of land between itself and the plaintiff
  2. 2.Whether the plaintiffs validly rescinded the land sale agreement between them and the defendant
  3. 3.Whether the plaintiffs are entitled to the orders of permanent injunctions and damages for trespass and conversion
  4. 4.Who should bear the costs of the suit

Key legal issues

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01

Breach of the sale agreement

Holding

The defendant breached the agreement by failing to pay the balance of the purchase price within the 120-day completion period.

Reasoning

It was undisputed that against an agreed consideration of about Kshs. 23,343,750/= for eight parcels, the defendant paid only the 10% deposit of Kshs. 2,593,750/=, applied to parcel 3/13134, plus a further Kshs. 1,500,000/= conceded by the plaintiffs. No further payment was made within the 120 days. The defence did not deny non-payment, only blaming the plaintiffs. Breach was therefore proved on a balance of probabilities.

p. 14
02

Validity of rescission

Holding

The plaintiffs validly rescinded the agreement for the defendant's fundamental breach, having issued the requisite notice under the Law Society Conditions of Sale.

Reasoning

Clause 4 incorporated the Law Society Conditions of Sale (1989 Edition), under which a defaulting party must receive a completion notice before rescission takes effect. The record shows a letter of 29th June 2020 indicating intention to rescind, a response by the defendant's counsel, and a letter of 1st September 2020 rescinding the contract, followed by a rescission deed. The defendant never showed an intention to remedy the breach.

p. 15
03

Entitlement to permanent injunction

Holding

As registered proprietors, the plaintiffs are entitled to the injunctions sought under sections 24 and 25 of the Land Registration Act.

Reasoning

Section 24(a) vests absolute ownership in a registered proprietor, and section 25(1) makes the proprietor's rights indefeasible except as provided in the Act. The plaintiffs proved registration of the suit parcels, and the defendant, having not completed the purchase, had no legal right to occupy or deal with the seven unpaid parcels.

p. 16
04

Damages for trespass and conversion

Holding

General damages of Kshs. 5,000,000/= awarded for trespass to seven parcels over roughly seven years; trespass actionable per se.

Reasoning

Trespass is actionable per se without proof of actual damage, and the proper plaintiff is the title holder. Conversion requires proof of ownership, which the plaintiffs established as registered proprietors. Considering that seven parcels were trespassed upon from 2019 to date, the court found Kshs. 5,000,000/= reasonable compensation.

p. 18

Legal principles established

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  • The burden of proof remains on the plaintiff even where the defendant fails to defend or present evidence.
  • A material breach of contract entitles the innocent party to rescind the contract.
  • Trespass to land is actionable per se without proof of actual damage.
  • The proper plaintiff in trespass to land is the person with title or deemed possession at the time of the trespass.
  • Conversion requires proof of ownership of the property alleged to have been converted.

Court orders

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  1. 1.A permanent injunction restraining the defendant, its agents, servants, employees, third parties and/or representatives from occupation and use of the suit property, and annulment of the Sale Agreement entered on 18th January 2019 in respect of title Nos. Mavoko town block 3/13128, 3/13129, 3/13130, 3/13131, 3/13132, 3/13133 and 3/13135
  2. 2.A permanent injunction restraining the defendant from offering for sale, transferring, constructing, fencing off and/or destroying any fixtures on the said seven parcels
  3. 3.Damages for trespass and conversion awarded in the sum of Kshs. 5,000,000/=
  4. 4.Costs of the suit awarded to the plaintiffs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land parcels in Machakos County (title Nos. Mavoko Town Block 3/13128-3/13135)

Quotable passages

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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 end, I find and hold that the plaintiffs have proved their case on the required standard and I therefore enter judgment for the plaintiffs against the defendant
p. 18disposition
Damages for trespass and conversion are awarded in the sum of Kshs. 5, 000, 000/=.
p. 20final orders - damages
A permanent injunction is hereby issued restraining the defendant, its agents, servants or employees, third parties, and/or representatives from occupation and use of the suit property
p. 19final orders - injunction
Costs of this suit are hereby awarded to the plaintiff.
p. 20final orders - costs
This burden remains on the plaintiff whether or not the defendant fails to defend the suit or present evidence.
p. 12burden of proof
It is my view that material breach of a contract entitles the innocent party the right to rescind the contract.
p. 14rescission for material breach

Issues in the judgment

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material

Deposit figure inconsistency: Kshs. 2,593,750/- in the judgment narrative versus Kshs. 25,937,500/- in the plaintiffs' submissions as recorded.

minor

Balance of purchase price stated inconsistently as Kshs. 23,243,750/- and Kshs. 23,343,750/-.

minor

Trespass period arithmetic: 'from 2019 to date, a period of 7 years' does not align internally with the judgment's own dates.

minor

Judgment dated and signed at Kakamega although the cause is in the Environment and Land Court at Machakos.

minor

Judgment date of 23rd September 2026 post-dates the plaintiffs' submissions of 11th April 2025 and the cited authority [2026] KECA 298; date may be a typographical error.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "James Muchiri Waweru & Another v Faith and Hope Properties Kenya Ltd", Case Analysis (2026). ELC Case No. E054 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6033/eng@2026-09-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.