Musuna v Abdullahi (Environment and Land Case E005 of 2022) [2026] KEMC 703 (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 undated written agreement of 2014 between the parties is null and void for failure of consideration, lack of capacity and misrepresentation
- 2.What the terms of the contract provided in the event of breach
- 3.Whether each party honoured their respective obligations under the agreement
- 4.What remedies are available to the parties, including rescission and specific performance
Key legal issues
#Validity of the 2014 exchange agreement
The agreement is valid and binding; the plaintiff failed to prove nullity for fraud, misrepresentation, lack of consideration or capacity
Both parties exchanged the motor vehicle for possession of the land, showing the contract was executed and partly performed. The contract expressly warranted the vehicle's clean documentation and allocated responsibility for documentation problems to the defendant. The plaintiff, however, had not transferred the land portion, so he could not portray himself as an innocent party. Fraud was pleaded but not proved to the required standard.
Availability of rescission
Rescission refused; the plaintiff was not an innocent party and substantial restitution was impossible after over a decade
Rescission restores parties to their original position and is available for misrepresentation, duress or fraud, but only in favour of an innocent party who has performed his obligations. The plaintiff had taken no steps to transfer the land. Further, the 1995-manufactured motor vehicle had, by 2026, undergone substantial wear and tear while land appreciates, so restitution would unjustly enrich the plaintiff.
Specific performance of the exchange agreement
Specific performance granted on mutual terms: plaintiff to transfer the land portion, defendant to transfer the vehicle
Specific performance is discretionary and may be declined for hardship or disproportion. However, cross-examination showed both parties remained willing to complete the contractual journey - the plaintiff was ready to transfer the land and the defendant undertook to cause the vehicle transfer. The contract was not incapable of performance, making specific performance the most efficacious and equitable remedy in the circumstances.
Legal principles established
#- A court cannot rewrite a contract between parties; parties are bound by their terms unless coercion, fraud or undue influence is pleaded and proved
- Rescission is only available to an innocent party who has performed his own part of the bargain
- Rescission is not available where substantial restitution cannot be achieved
- Specific performance is an equitable discretionary remedy that may be refused where it causes severe hardship or where performance is wholly out of proportion to the benefit
Court orders
#- 1.A declaration that the undated agreement of year 2014 between the Plaintiff and the Defendant is valid and binding between the parties
- 2.An order of specific performance that the Plaintiff transfer a portion measuring 30*33 metres from land parcel No. MUTOMO/KAWELU/1665 to the Defendant, with the Plaintiff meeting the costs of the transfer
- 3.An order that the Defendant effect/cause transfer of motor vehicle Reg. No. KAG 040T and have the same registered in the name of the Plaintiff, the costs of transfer and any other attendant costs to be borne by the Defendant
- 4.The Defendant to have costs and interests of the suit as well as the counterclaim
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil suit (contract and land) before the Senior Principal Magistrates' Court; no specific constitutional/statutory provision invoked in the judgment
Relief refused
#Declaration that the 2014 agreement is null and void and unenforceable
Plaintiff failed to prove nullity; the agreement was found valid and binding
Rescission of the contract and restoration of parties to their original positions
Plaintiff was not an innocent party having not transferred the land, and substantial restitution was impossible after over a decade
Permanent injunction restraining the Defendant from interfering with Mutomo/Kawelu/1665
Consequent upon nullification of the agreement which was declined
General damages for breach of contract
Consequent upon nullification of the agreement which was declined
Costs
The Defendant shall have costs and interests of the suit as well as the Counterclaim
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.
A declaration be and is hereby issued that the undated agreement of year 2014 between the Plaintiff and the Defendant is valid and binding between the parties.
That the Plaintiff to transfer a portion measuring 30*33 metres from land parcel NO. MUTOMO/KAWELU/1665 to the Defendant with the Plaintiff meeting the costs of the transfer.
That the Defendant to effect/cause transfer of motor vehicle Reg. NO.KAG 040T and have the same registered in the name of the Plaintiff, -the costs of transfer and any other attendant costs to be borne by the Defendant.
A court of law cannot re-write a contract between the parties. The parties are bound by their term of contract, unless coercion, fraud, undue influence is pleaded and proved.
The Plaintiff herein is not an innocent party, the evidence on record shows that he had not taken steps to transfer the subject property to the Defendant. He is thus not entitled to rescission since he is equally in breach.
I am thus persuaded to grant an order of specific performance herein as it the most efficacious and equitable in the circumstances herein.
Issues in the judgment
#Judgment dated 12/08/2026 but filed submissions are dated 2026 after the plaint of 2022; also internal references to 'court of Appeal case' and apparent typo dating submissions ('17/3/2026' and '15/6/2026') predate or coincide with judgment date - dates appear inconsistent with a 2022 filing
Typographical errors in judgment, e.g. 'null and void' passage contains doubled word and 'recession' used for 'rescission'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Musuna v Abdullahi (Environment and Land Case E005 of 2022) [2026] KEMC 703 (KLR)", Case Analysis (2026). ELC No. E005 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/703/eng@2026-08-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.