Patel & another v Greenview Developers Limited (Environment and Land Case E174 of 2025) [2026] KEELC 3168 (KLR)

f. Any other relief that this Honourable Court may deem fit to grant. 2. By the plaint, the Plaintifis state that the Defendant, a real estate development company, entered into a joint venture with Archibald Githinji for the construction of eleven town houses on Land Reference Number 1870/VIII/120, Nairobi. The Plaintifis further state that the Defendant engaged Elemech Engineering Limited to supply construction materials for the said development, which materials were supplied at a total cost of Kshs. 38,885,226.72, an amount acknowledged by the Defendant vide its letter dated 5th February 2018. 3. The Plaintifis further aver that arising from negotiations between the Defendant and Elemech Engineering Limited, part of the debt owed by the Defendant, being Kshs. 22,000,000, was assigned to the 1st Plaintifi, who was a director of the said company. Consequently, the Defendant entered into an Agreement for Sale dated 6th June 2014 with the Plaintifis for the purchase of House Number 2 in Peponi View, Nairobi, erected on Land Reference Number 1870/VIII/120, at a purchase price of Kshs. 40,000,000. 4. The Plaintifis state that pursuant to the terms of the said Agreement for Sale, they paid the Defendant a deposit of Kshs. 10,000,000 together with a further sum of Kshs. 8,000,000, both of which payments were duly acknowledged by the Defendant. The Plaintifis further aver that the assigned debt of Kshs. 22,000,000 was applied towards the balance of the purchase price, thereby fully settling the consideration due under the sale agreement and extinguishing any debt owed to Elemech Engineering Limited. 5. The Plaintifis have set out the particulars of breach of contract against the Defendant and contend that despite full performance of their obligations under the Agreement for Sale, the Defendant has neglected, refused and/or failed to register and transfer the sublease in favour of the Plaintifis. The Plaintifis further aver that the Defendant unlawfully purported to terminate the sale agreement vide a letter dated 17th February 2025, thereby threatening the Plaintifis’ proprietary interests in the suit property despite their continued occupation and full payment of the purchase price. 6. The Defendant was duly served with Summons to Enter Appearance but failed and/or neglected to enter appearance or file a statement of defence within the prescribed timelines. Consequently, the matter proceeded undefended and was listed for formal proof hearing on 2nd December 2025. Despite service of the hearing notice, the Defendant neither attended Court nor participated in the proceedings. 7. The hearing therefore proceeded ex parte, during which the 1st Plaintifi testified on his own behalf and on behalf of the 2nd Plaintifi and adopted his witness statement together with the Plaintifis’ bundle of documents. The Plaintifis reiterated that they had fully performed their obligations under the Agreement for Sale and maintained that the Defendant’s purported termination of the agreement and threats of eviction were unlawful, unjustified, and in breach of their proprietary rights over the suit property. Submission 8. Upon close of the Plaintifis’ case, counsel for the Plaintifis filed written submissions summarizing the evidence adduced before the Court and contending that the Plaintifis had fully proved their claim against the Defendant. The Plaintifis submitted that the documentary evidence produced, together with the testimony of the 1st Plaintifi, suficiently established the existence of a valid sale agreement, full payment of the purchase price, and the Defendant’s breach arising from its refusal to transfer and register the suit property in favour of the Plaintifis. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3168/eng@2026-05-25 2

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9. In their submissions, the Plaintifis identified the following issues for determination by the Court: whether there existed a valid and enforceable sale agreement between the Plaintifis and the Defendant; whether the Plaintifis fulfilled their contractual obligations under the sale agreement; whether the Defendant breached the agreement; and whether the Plaintifis are entitled to the reliefs sought, including specific performance, a vesting order, and a permanent injunction. 10. In support of their submissions, the Plaintifis relied on several authorities, including National Bank of Kenya Ltd Vs Pipeplastic Samkolit (K) Ltd & Another (2001) eKLR, where the Court held that parties are bound by the terms of their contract unless vitiating factors are proved; Thara & Another Vs Actae Development Limited & Another (Environment & Land Case 196 of 2015) [2022] KEELC 3382 (KLR). 11. On the binding nature of contracts voluntarily entered into by parties; Reliable Electrical Engineers (K) Limited Vs Mantrac Kenya Limited (2006) KEHC 2855 (KLR) on the principles governing the grant of specific performance; Giella Vs Cassman Brown & Co. Limited (1973) EA and Nguruman Limited Vs Jan Bonde Nielsen, Harmanus Philipus Steyn and Hedda Steyn, NRB CA Civil Appeal No. 77 of 2021 (2014) eKLR on the principles for grant of injunctive reliefs; and Mrao Ltd Vs First American Bank of Kenya Ltd & 2 Others [2003] KLR 125 on the definition of a prima facie case. Analysis and Determination 12. From the pleadings, evidence and submissions on record, the issues arising for determination are: a. Whether the Plaintifis proved that they fully performed their obligations under the Agreement for Sale dated 6th June 2014 and whether the Defendant breached the said agreement. b. Whether the Plaintifis are entitled to the reliefs sought, including specific performance, a vesting order, and a permanent injunction. Issue No:1 whether the Plaintifis fulfilled their obligations under the Agreement for Sale dated 6th June 2014 and whether the Defendant breached the said agreement. 13. The Plaintifis produced before Court the written Sale Agreement dated 6th June 2014 for the purchase of House Number 2 on Land Reference Number 1870/VIII/120 at a purchase price of Kshs. 40,000,000. The agreement was executed by the parties and therefore met the requirements of Section 3(3) of the Law of Contract Act, which requires contracts relating to disposition of an interest in land to be in writing and executed by the parties thereto. 14. The Plaintifis further adduced evidence showing that they paid the contractual deposit of Kshs. 10,000,000, a further sum of Kshs. 8,000,000, and an additional Kshs. 1,000,000, all acknowledged by the Defendant. The Plaintifis also demonstrated that the debt of Kshs. 22,000,000 owed by the Defendant to Elemech Engineering Kenya Limited was assigned to the 1st Plaintifi and applied towards settlement of the balance of the purchase price. The evidence tendered before Court therefore established that the Plaintifis fully settled the purchase price in accordance with the terms of the agreement. 15. In National Bank of Kenya Ltd Vs Pipeplastic Samkolit (K) Ltd & Another (2001) eKLR, the Court held that a court cannot rewrite a contract between parties and that parties are bound by the terms of their contract unless vitiating factors are pleaded and proved. Similarly, in Thara & Another Vs Actae Development Limited & Another (Environment & Land Case 196 of 2015) [2022] KEELC 3382 (KLR), the Court afirmed that parties who voluntarily enter into a contract are bound by its terms and conditions. In the present case, the Defendant neither entered appearance nor challenged the validity https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3168/eng@2026-05-25 3

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of the agreement or the Plaintifis’ evidence regarding payment of the purchase price. The Plaintifis’ evidence therefore remained uncontroverted. 16. The Court is therefore satisfied that the Plaintifis fully performed their obligations under the Agreement for Sale dated 6th June 2014. Despite receipt of the full purchase price, the Defendant failed and/or neglected to transfer and register the suit property in favour of the Plaintifis and instead purported to terminate the agreement vide the letter dated 17th February 2025. In the Court’s view, such conduct amounted to a fundamental breach of the sale agreement by the Defendant. Issue No:2 whether the Plaintifis are entitled to the reliefs sought, including specific performance, a vesting order, and a permanent injunction. 17. The Plaintifis prayed for an order of specific performance compelling the Defendant to transfer and register House Number 2 on Land Reference Number 1870/VIII/120 in their favour. The law regarding the grant of specific performance is now settled. In Reliable Electrical Engineers (K) Limited Vs Mantrac Kenya Limited (2006) KEHC 2855 (KLR), the Court held that specific performance is an equitable remedy founded on the existence of a valid and enforceable contract and will ordinarily issue where damages are not an adequate remedy. 18. In the present case, the Court has already found that there existed a valid and enforceable Sale Agreement between the parties and that the Plaintifis fully discharged their obligations thereunder by paying the entire purchase price. The only outstanding obligation was the transfer and registration of the suit property in favour of the Plaintifis, which obligation the Defendant failed and/or refused to perform. Considering that the subject matter of the dispute is land, which is unique in character, this Court is persuaded that damages would not adequately compensate the Plaintifis. The Court therefore finds that the Plaintifis have satisfied the conditions for the grant of an order of specific performance. 19. The Plaintifis also sought, in the alternative, a vesting order and a permanent injunction restraining the Defendant from interfering with the suit property. Under Section 98 of the Civil Procedure Act, the Court has power to direct execution of documents where a party refuses to do so. Further, the principles governing grant of injunctive relief were set out in Giella Vs Cassman Brown & Co. Limited (1973) EA and reafirmed in Nguruman Limited Vs Jan Bonde Nielsen, Harmanus Philipus Steyn and Hedda Steyn, NRB CA Civil Appeal No. 77 of 2021 (2014) eKLR. The Plaintifis demonstrated that they acquired proprietary interests in the suit property upon payment of the full purchase price and that unless restrained, the Defendant may interfere with their quiet possession and enjoyment of the property. 20. In the circumstances, the Court is satisfied that the Plaintifis proved their case on a balance of probabilities and are entitled to the reliefs sought in the Plaint. Equity demands that the Defendant should not be permitted to retain both the purchase price and the suit property to the prejudice of the Plaintifis who fully performed their obligations under the agreement. 21. Consequently, and having found that the Plaintifis proved their case on a balance of probabilities, Judgment is hereby entered for the Plaintifis against the Defendant in the following terms: a. A Declaration be and is hereby issued that the Plaintifis fully fulfilled their contractual obligations under the Agreement for Sale dated 6th June 2014. b. An Order of Specific Performance be and is hereby issued compelling the Defendant to transfer and register Town House Number 2 in Peponi View, Nairobi, on Land Reference Number 1870/VIII/120 in favour of the Plaintifis in accordance with the Agreement for Sale dated 6th June 2014. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3168/eng@2026-05-25 4

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c. In the alternative to prayer (b) above, a Vesting Order be and is hereby issued vesting House Number 2 on Land Reference Number 1870/VIII/120 in the Plaintifis and authorizing registration thereof in their names without the necessity of execution of completion documents by the Defendant. d. A Permanent Injunction be and is hereby issued restraining the Defendant, whether by itself, its agents, servants and/or employees, or any person acting under its authority, from selling, transferring, alienating, interfering with, or in any manner whatsoever dealing with House Number 2 on Land Reference Number 1870/VIII/120 to the prejudice of the Plaintifis. e. The Plaintifis shall have the costs of this suit together with interest thereon at Court rates. It is so ordered DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 25TH DAY OF MAY, 2026. MOHAMMED N. KULLOW JUDGE Judgment delivered in the presence of: Mr. Manyara for Ochieng ..... for the Plaintifis N/A ............................. for the Defendants Philomena W. ................. Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3168/eng@2026-05-25 5

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