https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3416

Isaas v Mwencha & 2 others (Environment and Land Case E001 of 2024) [2026] KEELC 3416 (KLR) (6 May 2026) (Judgment) Neutral citation: [2026] KEELC 3416 (KLR) Republic of Kenya In the Environment and Land Court at Kisii Environment and Land Case E001 of 2024 AA Omollo, J May 6, 2026 Between Agnes Kwamboka Isaas Plaintiff and Joel Matara Mwencha 1st Defendant Cooperative Bank Ltd 2nd Defendant The Land Registrar Kisii 3rd Defendant Judgment 1.Vide a plaint dated12th March, 2024 the Plaintiff sued the three (3) Defendants stating inter alia that she was the registered owner of the suit parcel Kitutu/Mwabundusi/265. She pleads that on or about 18th October, 2022 she agreed to sell this land to the 1st Defendant at Kshs 3,200,000. The agreement was reduced into writing. 2.The Plaintiff asserts that the 1st Defendant only paid her Kshs 360000 leaving a balance of Kshs 2,840,0000 which is outstanding todate. She continued to state that the 1st Defendant used one of her sons in tricking her to release the original title deed to him with a false promise that the 1st Defendant would pay the balance of purchase price after a few days. 3.It is her case that she has discovered the 1st Defendant has transferred the land to himself and proceeded to have charged to the 2nd Defendant. She denied that signed any application for LCB consent to transfer the property to the 1st Defendant.The 3rd Defenfdant is being blamed for failing to supply her with official searches despite several requests. 4.She lists the particulars of fraud against the Defendants thus; 5.She therefore prays for judgment against the Defendants jointly and severally as follows.a.Cancellation and nullification of the transfer of title Central Kitutu/Mwabundusi/265 in the name of the 1st Defendant and rectification of the register to reflect the Plaintiff as the registered owner.b.An order of discharge of the charge created by the 1st Defendant over the title Central Kitutu/Mwabundusi/265 in favour of the 2nd Defendant.c.A permanent injunction restraining the Defendants either by themselves, their agents servants and or employees from interfering with the suit title.d.General damages against the Defendants for negligently having the suit property fraudulently transferred into the 1st Defendant’s name and subsequently creating a charge instrument in favour of the 2nd Defendant.e.Costs of the suit.f.Any other relief the court deems fit and just to grant. 6.The 1st Defendant filed a statement of defence dated 29th July, 2024 denying each and every allegation set out in the plaint. He avers the suit land Central Kitutu/Mwabundusi/265 was sold to him and legally transferred and registered in his name. That the transfer to his name was done with full participation of the Plaintiff. 7.He pleaded that there is no legal basis to award the Plaintiff damages. The 1st Defendant also pleaded that the issue in dispute relates to taking of accounts following the sale of land hence outside the purview of section 13 of the Environment and Land Court Act. 8.The 2nd Defendant filed a statement of defence dated 15th October, 2024 wholly denying the claim. It pleaded that it is a stranger to the cliam as set out in paragraphs 6,7, and 8 of the plaint. 9.The 2nd Defendant stated that the 1st Defendant approached it for a loan facility to be secured with the property known as Central Kitutu/Mwabundusi/265 and the loan purpose was to purchase the said property. That upon consideration of the borrower’s bonafides the application was allowed for Kshs 1920000 and the bank proceeded to prepare a charge over the same. 10.The 2nd Defendant pleads that the sum of Kshs 1920000 was remitted to the Plaintiff’s Family Bank account number 02XXXXXXXX99. The 2nd Defendant denies the particulars of fraud levelled against it and prayed that this suit be dismissed with costs. 11.The 3rd Defendant did not file any defence. 12.The matter proceeded to hearing with the Plaintiff and the 1st and 2nd Defendants each calling one witness. The Plaintiff testified on 10th October, 2025 adopting her written witness statement dated 12th March, 2024. She continued to state that the land she was selling is at Nyagetibo and the agreed purchase price was Kshs 3,200,000. 13.The Plaintiff acknowledges payment of Kshs 360,000 and the balance was to be paid by March, 2023. It is her evidence that the 1st Defendant tricked her through her son to release the original title deed and that the balance was to be paid after a few days. 14.This witness averred that after the signing of the sale agreement, the 1st Defendant took her to Kisii where she was taken to Family bank to open an account. After opening the account, the 1st Defendant informed her that he was processing a loan from the 2nd Defendant to enable him clear the balance. 15.She asserted that whenever the 1st Defendant deposited money into her account, he would ask her to withdraw the same and give back to the 1st Defendant under the guise to enable the 1st Defendant get a statement favourable for getting the loan from the 2nd Defendant. That she innocently acceded to this request. The 1st Defendant never paid the balance as agreed and when they inquired at the Lands office, she discovered the property had been registered in the 1st Defendant’s name. 16.The witness affirms that she never signed any application form nor made any application to the relevant Land Control Board for consent to transfer the property to the 1st Defendant. It is her contention that she has suffered loss because the property was transferred and subsequently charged before she was paid the purchase price in full. She urged the court to grant the reliefs sought. 17.During cross-examination, the Plaintiff denied that her bank statement showed Kshs 1,200,000 had been deposited. She admitted that on 20.2.2023, a sum of Kshs 590000 was deposited in her account but insists that she withdrew it and gave it back to the 1st Defendant. She denied that a sum of Kshs 240000 was deposited in her account on 2.2.2023. She affirms that there is no document to show she gave back the monies to the 1st Defendant and no one witnessed the return of the money. 18.The Plaintiff admitted she signed some documents which the 1st Defendant brought by placing her thumbprint. She added she does not know how to read so she did not know what the documents were. She was not aware of the deposit of Kshs 1,920,000 as she had not gone to the bank to confirm. 19.In cross-exam by the 2nd Defendant, the Plaintiff confirms she had no dealings with them. She affirms that she owns a bank account at Family Bank. She had not been to the bank in the last two years so she could not confirm the 2nd Defendant had remitted the sum of Kshs 1920000 on 19th February, 2024 to her account but if the same was deposited, it can be returned to the 1st Defendant. 20.The 1st Defendant gave his testimony on 29th September, 2025. He confirmed he was buying the Plaintiff’s land Central Kitutu/Mwabundusi/265 situated in Nyamira County. The sale agreement was reduced into writing and is the one dated 18th October, 2022. Dw1 stated that he paid the purchase price in part and the other part was offset through a loan. He narrated that at the time of signing the agreement, he had paid Kshs 200000. Thereafter, he made 5 deposits into the Plaintiff’s account at Family Bank Ltd and the statements produced by the Plaintiff reflect the said deposits. 21.The 1st Defendant added that the last instalment of Kshs 1920000 was paid into the Plaintiff’s account on 19th February, 2024 and this case was filed on 13th March 2024. The 1st Defendant said that during the negotiations pursuant to directions from the court, he asked the Plaintiff what happened to the Kshs 1920000. The Plaintiff answered that her lawyer and her son had adviced that the money be returned to the 2nd Defendant and they did so. On visiting the 2nd Defendant, it confirmed receipt of the refund which they placed in a suspense account. Subsequently, the money was returned to the Plaintiff after she accepted to receive the money. 22.The 1st Defendant confirmed the title is registered in her names and produced application for LCB Consent made to Mosocho LCB as Dex2(a) and (b). The 1st Defendant denied obtaining the suit title fraudulently and explained that the Plaintiff and her children especially the sons who signed the agreement had approached him through the daughter working at Getare Dispensary to buy the land. 23.In cross-examination by the 2nd Defendant, the 1st Defendant affirmed to approaching the 2nd Defenadnt to advance to him a loan facility. He agreed to giving the bank manager of the 2nd Defendants made to family bank ltd (for the Plaintiff). The 1st Defendant states the Plaintiff signed the sale agreement by thumbprint and there were witnesses. He also confirmed he has not finished paying for the loan. 24.During further cross-examination by the Mr Mokaya learned counsel for the Plaintiff, the 1st Defendant, he said the lawyer’s office who drew the sale agreement is located at Gusii Deluxe building in Kisii. He read clause 6 of the sale agreement which provided that Kshs 3 million was to be paid on or before 31st March, 2023. 25.He stated that he did not have the full purchase price hence the reason he applied for a loan soon after the signing of the agreement. The witness was referred to the 2nd Defendant’s letter dated 7th December, 2022 which mentions an application for the loan dated 19.10.2022. He denied he executed the agreement dated 31st December, 2022. 26.On the payment of Kshs 200000, Dw1 said the lawyer witnessed him paying Kshs 100000 and not Kshs 200000. The 1st Defendant asserted the Plaintiff attended the Land Control Board on 7th March 2023. Asked about the transfer form, the witness confirmed he had one and the court directed a court be placed in record. 27.The witness was put to task about the lawyer who witnessed the documents who has offices in Nairobi instead of Kisii. He asserted that the firm of Okong’o Omogeni had sent his assistant to Kisii with the documents for them to sign. He admitted assisting the Plaintiff to open a bank account since she did not have one at the time they were transacting. 28.The 1st Defendant said that he deposited a total of Kshs 1280000 into the Plaintiff’s account. He would give her cash and she makes the deposit by herself then give him the deposit slips to give to his bank because he was applying for a loan. The 1st Defendant affirmed that from the bank statement, when a deposit of kshs 100000, the Plaintiff a few hours later withdrew Kshs 95000. Another deposit of Kshs 90000 was also followed with a withdrawal. He denied the monies withdrawn were returned to him 29.He acknowledged that by 31st of March, 2023, he had not paid the entire purchase price. He was refered to clause 10 which provided that any one in breach would pay three times the purchase price. He insisted that by the time the Plaintiff came to court, he had paid the full purchase price. He was not aware the Plaintiff had logded a complaint with the 3rd Defendant. 30.Joel Okong’o Odhiambo testified as DW2 on behalf of the 2nd Defendant. He adopted his witness statement dated 30th September 2024. DW2 confims the 1st Defendant is their customer and that he applied for a loan facility. He produced the six documents in the list dated 15.10.2024 to wit; loan facility consideration approval, offer by the bank and acceptance by the borrower, the Charge documents duly executed by the borrower, a copy of the title deed with the charge encumbrance denoted, the instructions letter to pay the Plaintiff and a receipt from Family Bank Limited. 31.Dw2 stated they did not give the 1st Defendant Kshs Three Million as he was supposed to contribute 40% and the bank pays the 60%. That it was a condition he had to prove he had credited the 40% into the buyer’s account and he brought deposit slips to confirm. After this, the bank selected Okong’o Omogeni to act on their behalf and perfect the security. He referred to the charge documents produced at page 25 of their trial bundle. He was also aware that the sum of Kshs 1920000 was paid. 32.He avers that he did the RTGS but it was returned/reversed after the Vendor said she was not aware of the money. However, the Plaintiff was subsequently paid after she and the 1st Defendant visited the offices of the Bank. It is the 2nd Defendant’s case that it was not part of the sale transaction. He also confirmed that the 1st Defendant has not finished paying for the loan advanced. 33.During cross-examination, the witness said the bank did due diligence before releasing the money. He was not sure if the fact of the vendor’s signature on the transfer form not being witnessed by an advocate was flagged by the bank. The loan was advanced to assist the 1st Defendant pay for the suit land. The suit title was registered in the 1st Defendant’s name on 18th April, 2023 and the charge registered on it on 4th May 2023. He did not see any anomaly in this process. 34.In re-exam, DW2 stated that when one is buying another person’s land and the letter of offer is handed over to them by the legal department, they transfer the property before funds are released. That the transfer comes first before the release of the money as they have to protect themselves. They urged the court to have the charge remain in place until the loan is offset. 35.At the close of the oral hearing, the parties were given time to file their respective submissions. The Plaintiff’s submissions are dated 30th October, 2025; the 1st Defendant’s submissions are dated 11th November, 2025; and the 2nd Defendant’s submissions are dated 30th November, 2025. I have read all three sets of submissions and shall refer to the relevant passages in my determination. Analysis and Determination: 36.I have reviewed the evidence presented and the submissions made, and in determining this dispute, I adopt the questions framed by the Plaintiff in her submissions, thus:a.Whether the agreed purchase price was paid by the 1st Defendant.b.Whether the 1st Defendant is in breach of the sale agreement dated 18.10.2022.c.Whether the transfer and registration of the property to the 1st Defendant was valid. Whether the purchase price was paid: 37.It is settled law under sections 107 and 109 of the Evidence Act, Cap 80 that the burden of proof lies with the Plaintiff in this case. It is her responsibility to prove that the purchase price was not paid in full, as alleged, and to prove the particulars of fraud pleaded. 38.I deduce that the Plaintiff’s case is that she was selling her parcel of land, Central Kitutu/Mwabundusi/265, to the 1st Defendant at an agreed purchase price of Kshs 3,200,000. The Plaintiff does not deny signing the sale agreement dated 18th October, 2022. The sale agreement has several witnesses, some of whom the 1st Defendant avers are her sons. 39.The law as it is that courts do not rewrite contracts for parties as held in the case of National Bank Ltd vs. Pipeplastic Samkolit Limited and Another (2001) KECA 362 (KLR). The Plaintiff also cited inter alia the case of Fidelity and Commercial Bank Ltd versus Kenya Grange Vehicle Industries Ltd (2017)eKLR where the Court of Appeal held thus;“Courts adopt the objective theory of contract interpretation and profess to have the overriding aim of giving effect to the expressed intentions of the parties when construing a contract. This is what is sometimes called the principles of four corners of an instrument, which insists that a document’s meaning should be derived from the document itself without reference to anything outside the document (extrinsic evidence), such as the circumstances surrounding its writing or the history of the party or parties signing it.” 40.The question, therefore, is whether the parties complied with the terms of that agreement. Regarding payment of the purchase price, at the time of execution of the sale agreement, the Plaintiff acknowledged that she had received Kshs 200,000 from the 1st Defendant. During the 1st Defendant’s cross-examination, counsel attempted to imply and later submitted that only Kshs 100000 was witnessed by an advocate at the signing of the sale agreement. 41.The burden of proving whether the Plaintiff received this money was on her to discharge, having signed that she received Kshs 200000. She did not call any of the witnesses to the agreement, including her sons, to support evidence that the amount paid as a deposit at the time of execution does not match what is stated on the face of the agreement. 42.The second issue in dispute concerns how the remainder of the purchase was (not) paid. The Plaintiff confirms that the 1st Defendant took her to Kisii to open a bank account with Family Bank Ltd. She produced bank statements from Family Bank Ltd confirming the existence of the account. The Plaintiff also admits that the 1st Defendant gave her money on various dates to deposit into that account. 43.The bank statement covers the period from 19th December 2022 to 17th August 2023. It shows cash deposits of Kshs 100000 on 23.12.2022; Kshs 90000 on 23.12.22; Kshs 240000 on 2.02.2023; Kshs 250000 on 7.02.2023; Kshs 590000 on 20.2.2023; Kshs 20000 on 23.5.2023; and Kshs 40000 on 21.7.2023. 44.The Plaintiff acknowledges that the 1st Defendant was the source of all these monies deposited into her account, and that they were intended for payment of the purchase money for the land. However, she states that as soon as the money was deposited into her account, the 1st Defendant asked her to withdraw it and return it to the 1st Defendant. The bank statements confirm that these deposits were withdrawn on the same day as the deposit. 45.According to the Plaintiff, the reason she did this was to generate a favourable statement to enable the 1st Defendant to obtain the loan from the 2nd Defendant. During cross-examination, the Plaintiff said there was no one who witnessed her give back the 1st Defendant monies she had withdrawn soon after the deposit. The 1st Defendant denied such an arrangement, creating a need to prove the allegations on the balance of probabilities. She did not discharge this burden. 46.The 1st Defendant may or may not have had a bad motive in taking advantage of the Plaintiff by taking money once deposited to show progress in clearing the balance. These deposits were spread over time, not a one-off event. In her evidence, the Plaintiff does not speak of coercion. She does not explain, given her evidence that she is illiterate and old, why she never invited any of her witnesses, who are her children, to accompany her to the Bank whenever the 1st Defendant invited her for such payments. She also does not elaborate on how the KShs 260000 she admits receipt of was paid. 47.It is trite law that allegations of fraud must be strictly proved. The mere fact that a deposit is made and a withdrawal is made almost immediately cannot be taken as evidence of fraud on the part of the 1st Defendant. The 2nd Defendant’s evidence was that the condition of advancing the facility to the 1st Defendant was that he had paid 40% of the purchase price. This, in my view, explains why the 1st Defendant preferred to pay through the bank and to take the banking slips to the 2nd Defendant, as confirmed by DW2. 48.The assertion by the Plaintiff that the 1st Defendant was putting the monies in her account but taking back to generate a good statement for the bank to advance the facility in a way corroborates the Defendants’ evidence of proof of payment of the part purchase price. The point of departure was that the monies withdrawn were given back to the 1st Defendant and which allegation has not been supported with any evidence. 49.The second part of the payment of Kshs 1,920,000 was expected from the 2nd Defendant and it did come by way of an RTGS to the Plaintiff’s bank. The confirmation of receipt was produced by the 2nd Defendant, as well as the Plaintiff’s re-wiring the money back to the 2nd Defendant. The Plaintiff was returning the payment on account of it being done after the date of 31st March 2023, and the Plaintiff now complains that she did not execute transfer instruments in favour of the 1st Defendant. 50.Thus, it is my finding that there is evidence presented that the entire sum of Kshs 3,200,000 was paid out to the Plaintiff. This brings out the second issue whether the full purchase price having been paid out of time, the Plaintiff is entitled to damages as set out in clause 10 of their sale agreement. Whether there is proof of fundamental breach: 51.Clause 10 states thus;“any party who breaches a fundamental term of this agreement shall pay the other three times the purchase price.” 52.The said clause speaks to a party who was in fundamental breach which in this case is submitted as the 1st Defendant paying the purchase price out of time and fraudulently causing the suit title to be registered in his name. Clause 7 provided thus:“the vendor agrees to cooperate with the purchaser in order to facilitate the transfer of the title to the purchaser’s name after the payment of the last instalment.” 53.Besides paying the purchase price outside of the stipulated time in the agreement, the 1st Defendant caused the title to be registered in his name before paying the last instalment. So, this was a second breach. 54.The circumstances surrounding the delay in paying the full purchase price on time are discernible from the face of the documents produced in evidence, namely the time taken to process the loan from the bank. According to Dw2, the monies could not be released to the 1st Defendant until he had provided proof that he had paid 40% of the purchase price. 55.An evaluation of the bank statement shows that the 1st Defendant was only able to pay 40% by February 2023, leaving him one month to pay the remaining 60%. By this time, he had received the bank’s approval (dated 6.12.2022) to advance the facility, as shown in document one of the 2nd Defendant’s bundle. The purpose of the loan is stated in that document as plot purchase. 56.The Plaintiff was aware that the 1st Defendant had applied for a loan to pay off the property. This is clear from her evidence that the deposits were made into her bank account to “generate a favourable statement to the 1st Defendant to get a loan.” By 31st of March, 2023 the 1st Defendant had not become the registered owner of the suit property. 57.He acquired ownership on 18th April, 2023, according to the copy of the title produced in evidence. The 2nd Defendant explained that, for them to rely on the funds to the 1st Defendant, the property had to be registered in the name of the charge to allow for the denoting/registration of the charge on the title to secure the loan. There is also evidence produced that, as soon as the property was charged, the monies were released to the Plaintiff. 58.In light of the evidence produced, can a conclusion be reached that there was a fundamental breach? A fundamental breach of a contract is a breach of a major term that allows the aggrieved party to rescind the contract and seek damages. The Plaintiff did not serve notice of rescission immediately after 31st March, 2023. The letters from her advocate on record are addressed to the Land Registrar, seeking the supply of certain documents. 59.Her notice was by way of filing this case, and this was done after the last instalment had been remitted to her account. I think the Plaintiff came to court too late to enforce clause 10 of the sale agreement dated 18th October, 2022. She filed suit after the full purchase price had been remitted to her account. The reasons offered for transferring the land into the name of the 1st Defendant were genuine and were intended to complete the sale. 60.The last question is whether the transfer and registration in the name of the 1st Defendant were fraudulent. The particulars of fraud were alleged against all three Defendants, including one who forged a transfer instrument and the Plaintiff’s signature, transferring the suit property to the 1st Defendant. In her oral evidence (during cross-examination), the Plaintiff stated that the 1st Defendant showed her some documents, which she signed with a thumbprint. 61.A copy of the transfer form was produced by the 1st Defendant, bearing a thumbprint in the place where the registered owner/plaintiff was supposed to sign. She did not call an expert witness to confirm that the signature on that transfer instrument was not hers but a forgery. The fact that her signature was not witnessed does not imply that it was forged. 62.The Plaintiff also stated that the transfer was fraudulent because it was carried out without her knowledge. In her written evidence, the Plaintiff avers that the 1st Defendant tricked her by using one of her sons to obtain the original title deed from him. She does not sue or call this son as a witness to support her assertion that she did not voluntarily release the title to the 1st Defendant. Whether the transfer to the 1st Defendant was fraudulent: 63.The third ground of fraudulently transferring the suit property before paying the purchase price has already been discussed above. The Plaintiff also stated that the 1st Defendant fraudulently obtained the LCB's consent. It was her burden to prove how the fraud was perpetrated, not merely to state it. The 1st Defendant presented application forms for the consent that she (the Plaintiff) had executed. It remained her word against the 1st Defendant that she did not appear before the Mosocho Land Control Board. This was a 2023 transaction, just a year before the filing of the suit. Hence, obtaining records from the Land Control Board for that period would have been easier, yet none was produced, nor was evidence adduced that she experienced difficulties in accessing the information. 64.Lastly, the Plaintiff pleaded that the charge over the suit property was fraudulently registered. At the time the charge was registered, the title had been transferred to the 1st Defendant. The 2nd Defendant produced all documents supporting their transaction with the 1st Defendant. The purpose of the loan stated on the document was to purchase a plot, and indeed the monies were remitted to the Plaintiff’s account, as evidenced by the receipt at page 62 of the Defendant’s bundle. 65.The Plaintiff has not in any way challenged the authenticity of the 2nd Defendant’s exhibits. Accordingly, no fraud has been established in relation to the registration of the charge over the title. 66.In the case of Koinange and 13 others vs Charles Karuga Koinange (1986) KLR the judge relied upon the principle enunciated in Ratilal Patel v Lalji Makanji [1957] EAR 314-317:“There is one observation which we must make – burden of proof–– standard of proof required – allegations of fraud must be strictly proved, although that standard of proof my not be so heavy as to require proof beyond reasonable doubt. Something more than a balance of probabilities is required.” 67.In this instance, the Plaintiff has failed to meet the threshold of proof of fraud beyond a balance of probabilities. Her case also fails on this point. In conclusion, I find that the Plaintiff’s evidence did not answer on a balance of probabilities all three questions raised in the determination of the dispute and or the reliefs sought in the Plaint. 68.The end result is that she does not merit the orders sought under paragraphs a-d of the prayers in the Plaint. The general damages sought were on account of fraudulent transfer and fraudulent registration of a charge over the suit title Central Kitutu/Mwabundusi/265. Having found there is no fraud, I award none, even under the heading of any orders the court deems just to grant. 69.I have considered the circumstances of this case. It is one that requires an order for each party to bear their costs of the suit and I so order. DATED, SIGNED AND DELIVERED AT KISII THIS 6TH DAY OF MAY, 2026A. OMOLLOJUDGE