Muriuki & another v Embakasi Ranching Company Ltd (Environment and Land Case E496 of 2024) [2026] KEELC 4491 (KLR)

4. The Plaintifis also pleaded that there were no previous proceedings between the parties over the subject matter and that the Court had jurisdiction to hear and determine the dispute. They asserted that the Defendant ignored the demand letter dated 17thOctober 2023 and consequently sought the intervention of the Court. Reliefs Sought 5. The Plaintifis seek an order compelling the Defendant to identify and point out the physical location of Plots Nos. 1741, 1742, 1743 and 1744 situated in Map 10K, undertake the requisite survey, and facilitate the processing and issuance of title deeds in their favour. In the alternative, should the said plots be unavailable, they seek an order directing the Defendant to procure a valuation of the subject plots, allocate to them equivalent parcels of land of similar size and value in another suitable location with any difierence in value being settled by the appropriate party, or compensate them by paying the current market value of the said plots. They further pray for general damages for breach of contract, inconvenience, mental anguish and emotional distress, costs of the suit together with interest thereon, and any other or further relief that this Court may deem fit and just to grant. Response by the Defendant 6. The record shows that the Plaint and Summons to Enter Appearance were duly served upon the Defendant. Despite service, the Defendant neither entered appearance nor filed a Statement of Defence within the prescribed period. Upon the Plaintifis' request, interlocutory judgment was regularly entered against the Defendant, and the matter thereafter proceeded by way of formal proof. Plaintifis' Submissions 7. The Plaintifis filed their written submissions dated 6th February 2026, wherein they submit that the evidence adduced during formal proof proved their case on a balance of probabilities. They identify three issues for determination, namely: whether the Plaintifis have proved their case on a balance of probabilities; whether they are entitled to the reliefs sought in the Plaint; and whether damages for emotional distress are awardable. They contend that the Defendant's failure to enter appearance or file a defence left their evidence uncontroverted and unchallenged. In support of that position, they rely on Shah -Vs- Mbogo & Another [1967] EA 116 and Patel v E.A. Cargo Handling Services Ltd [1974] EA 75. 8. On the merits, the Plaintifis submit that they acquired enforceable proprietary interests upon allocation of the suit properties, which interests are protected under Article 40 of the Constitution and Section 24 of the Land Registration Act. They argue that the Defendant's failure to identify the plots, facilitate survey and issue title deeds entitles them to orders of specific performance, or in the alternative, valuation and allocation of equivalent land or payment of the current market value should the original plots be unavailable. 9. They further urge the Court to award general damages for emotional distress occasioned by the Defendant's conduct, relying on Wreck Motors Enterprises -Vs- Commissioner of Lands & Others [1997] eKLR, Arthi Highway Developers Ltd -Vs -West End Butchery Ltd & Others [2015] eKLR, and Park Towers Ltd -Vs- John Mithamo Njika & 7 Others [2014] eKLR. Analysis and Determination 9. I have carefully considered the Plaint, the evidence adduced during formal proof, the documentary exhibits produced, the Plaintifis' written submissions, and the applicable law. Although the Defendant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4491/eng@2026-07-16 2

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neither entered appearance nor filed a defence, that omission did not automatically entitle the Plaintifis to judgment. The burden of proof remained with the Plaintifis throughout these proceedings. Sections 107, 108 and 109 of the Evidence Act, Cap. 80 place the legal burden upon the party who asserts the existence of a fact. Consequently, notwithstanding the Defendant's default, the Court must be satisfied that the Plaintifis have established their claim on a balance of probabilities. 10. Having considered the pleadings and evidence, the Court is of the view that the dispute can conveniently be determined under one issue, namely: Whether the Plaintifis have proved their case on a balance of probabilities and are entitled to the reliefs sought in the Plaint. 11. The Plaintifis' claim is founded upon the allocation of Plots Nos. 1741, 1742, 1743 and 1744 in Map 10K by the Defendant. During formal proof, the Plaintifis adopted their witness statements and produced ownership certificates, receipts evidencing payment of the requisite charges, and correspondence exchanged with the Defendant. The documentary evidence establishes that the Defendant acknowledged the Plaintifis as allottees of the suit properties. Significantly, the Defendant did not challenge the authenticity of those documents nor ofier any explanation for its failure to complete the allocation process. 12. It is now settled that once a land buying company allocates land to a purchaser and receives the agreed consideration, the allottee acquires enforceable equitable rights capable of protection by the Court, Article 40 of the Constitution guarantees every person the right to acquire and own property and protects such interests from arbitrary deprivation. Although the Plaintifis are yet to obtain registered titles, the evidence demonstrates that the Defendant recognized their interests through the issuance of ownership documents and acceptance of payment. 13. The evidence further demonstrates that despite repeated follow-ups by the Plaintifis, the Defendant failed to identify the physical location of the allocated plots, undertake the necessary survey or facilitate the issuance of title deeds. The explanation allegedly given by the Defendant that the plots could not be traced cannot, in the circumstances of this case, absolve it of liability. Having undertaken to allocate the plots and received consideration, the Defendant owed the Plaintifis a contractual and equitable obligation to complete the allocation process. Its failure to do so amounts to a breach of that obligation. 14. The Plaintifis have principally sought an order compelling the Defendant to identify the suit properties, conduct the necessary survey and facilitate the issuance of title deeds. The remedy sought is in the nature of specific performance. Specific performance is an equitable remedy granted where damages would not adequately compensate the injured party and where the subject matter is unique, as is generally the case with land. 15. In Reliable Electrical Engineers Ltd -Vs- Mantrac Kenya Ltd [2006] eKLR, KEHC 2855 (KLR) the Court observed that specific performance is available where a valid and enforceable obligation exists and damages would not be an adequate remedy. In the present case, the Plaintifis bargained for specific parcels of land, and the evidence demonstrates that the Defendant has failed to fulfil its contractual obligations. I am therefore satisfied that this is an appropriate case for the grant of that remedy. 16. The Plaintifis have also pleaded alternative reliefs should the original plots be unavailable. The Court notes that these prayers were specifically pleaded in the Plaint. Where it ultimately becomes impossible for the Defendant to identify or deliver the allocated plots, the Plaintifis cannot be left without a remedy owing to the Defendant's own failure. In those circumstances, the alternative prayers for valuation of the plots, allocation of equivalent parcels of comparable value, or payment of the prevailing market value become appropriate equitable reliefs to ensure that the Plaintifis are not deprived of the benefit of their bargain. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4491/eng@2026-07-16 3

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17. The Plaintifis have further prayed for general damages for breach of contract, inconvenience, mental anguish and emotional distress. However, the law is settled that general damages are not awardable for breach of contract. In Securicor Courier (K) Ltd -Vs- Benson David Onyango & Another [2008] eKLR, the Court of Appeal reafirmed that "this Court has repeatedly held that general damages are not awardable for breach of contract" and cited Dharamshi -Vs- Karsan [1974] EA 41. 18. While the Court appreciates the inconvenience occasioned to the Plaintifis by the Defendant's prolonged failure to perform its obligations, such inconvenience does not, without more, warrant an award of general damages. The Plaintifis are adequately compensated by the substantive equitable reliefs granted herein. Accordingly, I decline to award general damages. 19. In the end, I find that the Plaintifis have proved their case on a balance of probabilities. They are entitled to the principal relief compelling the Defendant to complete the allocation process in respect of the suit properties and, where that is no longer possible, to the alternative reliefs pleaded in the Plaint. The claim for general damages, however, is declined for the reasons stated above. The final orders of the Court shall follow. Disposition 18. In the result, and having found that the Plaintifis have proved their case on a balance of probabilities, judgment is hereby entered in favour of the Plaintifis against the Defendant in the following terms: a. An order of specific performance is hereby issued compelling the Defendant to identify and point out the physical location of Plots Nos. 1741, 1742, 1743 and 1744 situated in Map 10K, undertake the requisite survey, and facilitate the processing and issuance of title deeds in favour of the Plaintifis. b. In the event that the Defendant is unable to comply with order (a) because the said plots are unavailable or incapable of being identified, the Defendant shall: I. Procure a valuation of the said plots by a qualified and registered valuer at its own cost; II. Allocate to the Plaintifis equivalent parcels of land of similar size and value in a suitable location, with any difierence in value to be settled by the appropriate party; or III. Where allocation of equivalent land is not feasible, compensate the Plaintifis by paying the current market value of the suit plots as established by the valuation. c. The prayer for general damages for breach of contract, inconvenience, mental anguish and emotional distress is declined. d. The Plaintifis shall have the costs of the suit together with interest thereon at court rates. It is so ordered. DATED, SIGNED AND DELIVERED VIA E-MAIL AT NAIROBI ON THIS 16TH DAY OF JULY, 2026. MOHAMMED N. KULLOW JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4491/eng@2026-07-16 4

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