https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5177

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA** **ELC APPEAL NO. E002 OF 2025** BEATRICE MUKHWANA LUTTAH……………………………………... APPELLANT VERSUS PROTUS CLAUDE AMUKWACHI………………………………...…1ST RESPONDENT MARGARET KAREYA MUMIA…………………………………...…2ND RESPONDENT CHARLES JAMES ATSANGO……………………………………....3RD RESPONDENT *(Being an appeal from the judgment and decree of Hon. P. Mutua, Chief Magistrate, delivered on 11th December 2024 in Kakamega CM ELC No. E049 of 2021)* **JUDGMENT** **A. Introduction** 1. This appeal arises from three agreements made within a period of less than one month over a half-acre portion to be excised from land parcel number MARAMA/SHINAMWENYULI/2949. The appellant entered the land in circumstances of bereavement and buried her son there. What began as an urgent purchase for a burial place later developed into a contest between the appellant, the person who first agreed to sell the portion to her, the registered proprietor and the person for whose benefit the proprietor said she held the portion. 2. By a judgment delivered on 11th December 2024, the trial court dismissed the appellant’s amended plaint and allowed the 1st respondent’s counterclaim. It ordered the appellant to pay the 1st respondent Kshs 300,000 as liquidated damages, to vacate the suit portion within sixty days and, in default, to be forcibly evicted. The 1st respondent was also awarded the costs of the suit and counterclaim. 3. The appellant challenges the whole judgment through the memorandum of appeal dated 29th December 2024. Although it contains twenty-six grounds, the complaints may conveniently be considered under five broad questions: whether the trial court correctly appreciated the pleadings and the effect of the non-participation of the 2nd and 3rd respondents; which of the competing agreements generated an enforceable or superior interest; whether fraud, rescission and breach were proved; whether the reliefs granted on the counterclaim were available; and what orders should issue on the appeal. **B. The pleadings before the trial court** 1. The suit commenced through a plaint dated 19th March 2021 against the 1st respondent alone. In substance, the appellant alleged that the 1st respondent had represented himself as the owner of the suit portion and had received Kshs 150,000 from her, only for her to discover that the land belonged to another person. She sought permanent injunctive relief and costs. 2. The plaint was amended on 13th July 2022 to join the registered proprietor, Margaret Kareya Mumia, and Charles James Atsango as the 2nd and 3rd defendants respectively. The appellant pleaded that, after the first transaction, she entered into a sale agreement dated 13th June 2018 with the 2nd and 3rd defendants for Kshs 310,000, paid the whole price and took possession. She sought, among other reliefs, an injunction protecting her possession, a declaration that she was the rightful purchaser, specific performance against the 2nd and 3rd defendants, refund by the 1st defendant of Kshs 150,000, interest and costs. 3. The statement of defence and counterclaim dated 16th May 2023 was expressly filed by the 1st defendant. He pleaded that he had purchased the portion from the 2nd defendant under an agreement dated 16th May 2018; that the registered proprietor consented to his resale of the portion to the appellant; and that the appellant paid Kshs 100,000 under their agreement dated 7th June 2018 but failed to pay the balance of Kshs 500,000 by 31st October 2018. He sought dismissal of the suit, Kshs 300,000 under the default clause, vacant possession and costs. 4. The record therefore supports the appellant’s criticism that the trial court was inaccurate when it described the defence and counterclaim as a joint pleading by all three defendants. It was not. The pleading, verifying affidavit, witness list and prayers all identified it as the case of the 1st defendant. That error does not, however, automatically establish the amended plaint against the 2nd and 3rd defendants. The legal consequences of their position require separate consideration. **C. The evidence** 1. The appellant testified as PW1. She stated that, while looking for land on which to bury her son, the 1st respondent offered the half-acre portion for Kshs 600,000. They executed an agreement on 7th June 2018 and she paid Kshs 100,000. She said that she later paid Kshs 20,000 and Kshs 30,000, and also advanced Kshs 9,000 and Kshs 12,000 through the 1st respondent’s wife in connection with the house. After the burial, the 2nd and 3rd respondents approached her as the true owners. She then executed the agreement dated 13th June 2018 for Kshs 310,000, which she said she paid in full. 2. In cross-examination, PW1 accepted that she had not conducted a search before executing the agreement of 7th June 2018; that she understood its purchase price to be Kshs 600,000; that she did not fulfil it; and that she did not consult the 1st respondent before entering the later transaction. She did not produce independent proof that Kshs 310,000 was paid to the 2nd and 3rd respondents. She also accepted that she had no title, transfer or Land Control Board consent. Her explanation was that she stopped further performance after discovering that the 1st respondent was not the registered proprietor. 3. The 1st respondent testified as DW1. He relied on his agreement of 16th May 2018 with the 2nd defendant, under which the half-acre portion was sold to him for Kshs 310,000 and Kshs 190,000 was acknowledged as paid, with Kshs 120,000 payable upon receipt of title. He also relied on the agreement of 7th June 2018 with the appellant. He admitted receiving Kshs 100,000 as the initial land payment. Although he acknowledged later receipts of Kshs 20,000 and Kshs 30,000, he attributed those sums to materials used on the house and not to the purchase price. 4. The 2nd respondent gave evidence as a witness for the 1st respondent. She confirmed that she was the registered proprietor and held the half-acre portion for the 3rd respondent. She supported the sale made to the 1st respondent and the evidence that he had paid Kshs 190,000. Her evidence, as captured by the trial court and not displaced on appeal, was that she knew of and consented to the resale to the appellant, but did not know of the separate agreement dated 13th June 2018 relied upon by the appellant. The 3rd respondent did not testify. **D. The parties’ submissions on appeal** 1. For the appellant, it was submitted that the 2nd and 3rd respondents neither entered appearance nor filed a defence and that the trial court therefore had no basis for treating them as having jointly defended the claim. Counsel argued that the 1st respondent had no title capable of being sold; that the appellant was induced by misrepresentation to execute the agreement of 7th June 2018; and that her later agreement with the registered and beneficial owners was valid and fully performed. It was further submitted that the court could not order eviction when the first agreement only provided a monetary consequence for default. 2. For the 1st respondent, it was submitted that he was the first purchaser for value; that the registered proprietor consented to his resale; that the appellant knowingly entered the agreement of 7th June 2018, obtained possession and buried her son, but failed to pay the agreed balance. Counsel maintained that parties are bound by their contracts and relied, among other decisions, on ***National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & another [2001] KLR 112*** and ***Pius Kimaiyo Langat v Co-operative Bank of Kenya Ltd [2017] eKLR***. The Court was urged to dismiss the appeal with costs. **E. Duty of a first appellate court** 1. This being a first appeal, the Court is required to reconsider and evaluate the evidence and draw its own conclusions, while bearing in mind that it did not see or hear the witnesses. That duty was stated in ***Selle & another v Associated Motor Boat Co Ltd & others [1968] EA 123***. An appellate court is not bound by the trial court’s conclusions if it is shown that material evidence was not considered, that irrelevant matters were taken into account, or that the conclusion is not supported by the evidence or the law. 2. The Court must nevertheless exercise caution before disturbing findings that depended upon the credibility and demeanour of witnesses. In the present appeal, most of the decisive facts are contained in the written agreements, the pleadings, undisputed admissions and the legal effect attributed to them. The Court is therefore in as good a position as the trial court to construe those documents and apply the law. **F. Effect of the 2nd and 3rd respondents’ failure to defend** 1. The appellant’s argument that judgment ought automatically to have been entered against the 2nd and 3rd respondents cannot be accepted. The reliefs sought against them included declarations concerning ownership of land, permanent injunctions and specific performance. Those were not liquidated demands for which interlocutory judgment could issue merely upon default. Under Order 10 rule 9 of the Civil Procedure Rules, the suit was required to proceed to hearing. 2. More fundamentally, a defendant’s failure to file a defence does not reverse the burden of proof imposed by sections 107 to 109 of the Evidence Act. A claimant must still establish the facts and legal basis for the relief sought. In ***Kirugi & another v Kabiya & 3 others [1987] KLR 347***, the Court of Appeal emphasised that the burden remains upon the plaintiff to prove the case on a balance of probabilities even where the defence is weak or absent. 3. The 2nd respondent, though not a defending party, testified as the 1st respondent’s witness. Her evidence was admissible and the trial court was entitled to evaluate it. What the court could not properly do was convert her attendance as a witness into a joint defence or counterclaim. The decisive question remains whether the appellant proved the agreement of 13th June 2018, payment of its consideration and an entitlement to specific performance. **G. The competing agreements and interests in the land** 1. The trial court held that the agreement of 16th May 2018 extinguished the interests of the 2nd and 3rd respondents and effectively transferred them to the 1st respondent. With respect, that proposition was too broad. A contract for the sale of land does not, by execution alone, transfer legal title. Sections 24, 25 and 26 of the Land Registration Act attach legal ownership to registration, subject to the qualifications recognised by the Act. The title remained registered in the name of the 2nd respondent. 2. That does not mean that an unregistered purchaser can never acquire an equitable interest. Depending on the agreement, payment, possession and the parties’ conduct, equity may impose a constructive trust or proprietary estoppel where it would be unconscionable for the legal owner to insist upon strict title. The Supreme Court affirmed the availability of constructive trusts in land-sale transactions in ***Shah & 7 others v Mombasa Bricks & Tiles Ltd & 5 others (Petition 18 (E020) of 2022) [2023] KESC 106 (KLR)*** and ***Dias Property Ltd v Thuita & 8 others (Petition E019 of 2024) [2025] KESC 31 (KLR).*** Such an interest arises from proved facts and conscience; it is not the automatic consequence of every sale agreement. 3. As between the registered proprietor and the 1st respondent, the evidence established a written agreement, part-payment of Kshs 190,000 and the proprietor’s continuing acknowledgment of the transaction. The 2nd respondent also witnessed or consented to the resale to the appellant. The 1st respondent therefore had a contractual and equitable interest capable of supporting the transaction of 7th June 2018, even though legal title had not been registered in his name. 4. The later agreement dated 13th June 2018 stood on a materially different evidential footing. The appellant asserted that she paid Kshs 310,000 in full, but produced no receipt, bank record, mobile-money record or independent testimony proving that payment. The 2nd respondent disowned knowledge of that transaction and supported the prior chain of dealings. The 3rd respondent, who was said to be the beneficiary and who appeared as a signatory, was not called by the appellant. 5. The written recital acknowledging payment was evidence in the appellant’s favour, but it was not immune from evaluation alongside the oral evidence and the surrounding chronology. Six days earlier, the appellant had obtained possession from the 1st respondent under an agreement witnessed or consented to by the registered proprietor. Her possession, development and burial of her son therefore originated from that first transaction, not from the agreement of 13th June 2018. In the face of the registered proprietor’s denial and the absence of proof of actual payment, the appellant did not establish a superior equitable interest under the later agreement. 6. Specific performance is a discretionary equitable remedy. A claimant must establish a valid and enforceable obligation, performance or readiness and willingness to perform her own obligations, and circumstances in which damages would not be adequate. On the evidence, the appellant did not prove payment to the 2nd and 3rd respondents or an enforceable superior equity. The trial court was therefore right to decline the declaration and specific performance sought against them, although part of its reasoning on the instantaneous transfer of their interests was erroneous. **H. Fraud, rescission and breach** 1. Fraud must be distinctly pleaded and proved by cogent evidence to a standard higher than an ordinary balance of probabilities, though not beyond reasonable doubt. The principle is settled by decisions including ***Vijay Morjaria v Nansingh Madhusingh Darbar & another [2000] eKLR and Kinyanjui Kamau v George Kamau [2015] eKLR***. The appellant alleged that the 1st respondent falsely presented himself as the registered owner. 2. The agreement of 7th June 2018 is poorly drawn and did not identify the parcel number. Nevertheless, the appellant admitted that the 1st respondent introduced her to the land, that she executed the agreement, paid KShs 100,000, entered possession and buried her son. The registered proprietor’s involvement as a witness or consenting party materially weakened the allegation that the 1st respondent had fabricated an ownership interest. The evidence did not meet the required threshold for fraud. 3. The appellant was entitled, upon discovering the true registration position, to seek rescission if the representation was material and the legal requirements were met. Her difficulty is that she did not communicate an unequivocal rescission at the material time. Instead, she remained in possession and entered a second transaction over the same portion without involving the 1st respondent. Filing suit almost three years later did not retrospectively convert that course of conduct into timely rescission before the agreed completion date. 4. The agreement required the balance of Kshs 500,000 to be paid by 31st October 2018. The appellant admitted that she did not pay it. Her later discovery that title remained in the 2nd respondent’s name did not, on the evidence, establish that the 1st respondent lacked any contractual or equitable capacity, particularly where the registered proprietor had consented to the resale. The trial court was therefore entitled to find that the appellant failed to perform the agreement of 7th June 2018. **I. The KShs 300,000 award** 1. Clause 7 of the agreement stated, in imperfect language, that the defaulting party would pay the other party one-half of the amount in addition to the consideration. The trial court construed it as liquidated damages of Kshs 300,000, allowed the 1st respondent to retain the Kshs 100,000 deposit, and also restored to him the land. The combined result was that the 1st respondent recovered the subject matter, retained the admitted payment and obtained a further one-half of the full price. 2. The principle that courts ordinarily enforce bargains freely made does not require enforcement of a penalty or an unconscionable consequence. ***National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & another*** (supra) recognises that parties are bound by their contract, but it does not authorise a court to ignore illegality, fraud, coercion, undue influence or the established supervisory jurisdiction of equity. More recently, the Court of Appeal in ***Dhiman v Shah (Civil Appeal E380 of 2023) [2025] KECA 1264 (KLR)*** reaffirmed that a contractual term may be declined where its operation is highly oppressive or manifestly unjust. 3. The 1st respondent did not demonstrate that Kshs 300,000 was a genuine pre-estimate of the loss likely to result from non-completion. His evidence was that he intended to use the balance to purchase another parcel. He produced no proof of a completed substitute transaction, forfeited payment or loss approaching Kshs 300,000. Once vacant possession is restored, the subject portion reverts to the benefit of his prior bargain with the registered proprietor. An additional award of fifty per cent of the price, while he retains the deposit, is disproportionate to the proved legitimate interest. 4. The clause was therefore penal in operation and the award cannot stand. The trial court treated the stipulated fraction as conclusive without examining its character, proportionality or the consequence of combining it with recovery of the land and retention of the deposit. That was an error of principle warranting appellate interference. **J. Vacant possession and refund of the deposit** 1. The appellant’s possession began under the agreement of 7th June 2018. After she failed to pay the balance, the 1st respondent demanded Kshs 300,000 and vacant possession through the letter dated 3rd March 2021. The counterclaim specifically sought an order that she vacate. Although the agreement did not use the word “eviction”, the innocent party’s remedies were not necessarily confined to the default clause. Termination of a land sale agreement following a fundamental failure to pay the price ordinarily carries reciprocal restoration of the property and benefits received. 2. The trial court described the appellant as a trespasser merely because she had no registered title. That description overlooked the contractual origin of her entry. She was not a trespasser from inception. Her right to remain, however, could not continue indefinitely after her admitted non-payment, the failure of her later claim to specific performance and the 1st respondent’s demand for restoration. The order for vacant possession was therefore available, but it required corresponding restitution and humane, implementable terms. 3. The appellant pleaded refund of Kshs 150,000. The agreement and the 1st respondent’s admission conclusively prove Kshs 100,000 as the deposit on the purchase price. The later sums of Kshs 20,000 and Kshs 30,000 were disputed as payments for building materials, and the appellant did not prove that they formed part of the land price. Judgment should therefore have been entered for refund of Kshs 100,000, not Kshs 150,000. 4. Restitution is especially necessary because the 1st respondent seeks and obtains the return of the land. Retention of both the land and the purchase deposit, in addition to the penal sum, would confer a windfall rather than compensate proved loss. The refund will attract interest at court rates from the date the lower-court suit was filed, the appellant having specifically prayed for interest and the sum having been admitted throughout. 5. The appellant buried her son on the suit portion and has occupied it for several years. That fact cannot create title where the pleaded and proved legal requirements have not been satisfied, but it is relevant to the manner and time within which vacant possession is implemented. The parties should be afforded an orderly period to arrange the removal of movable property and to address access to the grave with dignity and in accordance with the law. Any forcible eviction must comply strictly with the applicable statutory requirements and be supervised by the lawful court process. **K. Alleged bias and treatment of the parties** 1. The appellant also complained of apparent bias arising from the trial court’s comments that she had tried to be “smart”, that “cheap is expensive”, and that she could confirm that saying from personal experience. Judicial reasons may properly identify conduct established by evidence, but they should do so in restrained language which does not ridicule a litigant or suggest a moral judgment beyond the issues pleaded. 2. Those comments were unnecessary and are disapproved. Viewed in the context of the judgment as a whole, however, they do not by themselves establish actual bias or justify allowing the appellant’s unproved claim to ownership. The appropriate appellate response is to correct the legal and remedial errors demonstrated on the record, rather than to substitute an unsupported decree in the appellant’s favour. **L. Costs** 1. Under section 27 of the Civil Procedure Act, costs follow the event unless the court for good reason orders otherwise. Both parties have succeeded in part. The appellant has failed in her claim to ownership and must yield possession, but she has succeeded against the monetary penalty and is entitled to restitution of the proved deposit. The litigation also arose from poorly documented sequential transactions in which all participants assumed substantial risk. The just order is that each party bears her or his own costs of the appeal and of the proceedings before the trial court. **M. Disposition** 1. In the result, the appeal succeeds in part. The judgment and decree of the Chief Magistrate’s Court are affirmed only to the extent identified below and are otherwise set aside. For clarity and ease of implementation, the final orders of this Court are as follows: 2. The appeal is partly allowed. 3. The dismissal of the appellant’s prayers for a declaration that she is the rightful purchaser of the half-acre portion of MARAMA/SHINAMWENYULI/2949, for permanent injunctive relief founded upon that alleged ownership, and for specific performance against the 2nd and 3rd respondents is upheld. 4. The award of Kshs 300,000 to the 1st respondent as liquidated damages is set aside and that limb of the counterclaim is dismissed. 5. Judgment is entered for the appellant against the 1st respondent for refund of Kshs 100,000, together with interest at court rates from 19th March 2021 until payment in full. 6. Within ninety (90) days from the date of this judgment, the 1st respondent shall pay the sum in order (d), including accrued interest, to the appellant or deposit it in the trial court for her account. 7. Within thirty (30) days after payment or deposit under order (e), the appellant shall give vacant possession of the half-acre portion of MARAMA/SHINAMWENYULI/2949 to the 1st respondent and shall be at liberty, during that period, to remove her movable property and any removable materials without damaging the land. 8. If the appellant fails to give vacant possession within the period stated in order (f), the 1st respondent may enforce the order for vacant possession through the trial court, strictly in accordance with the law governing eviction and court execution. There shall be no forcible eviction otherwise than through lawful court process. 9. The parties shall, in implementing the order for vacant possession, preserve the grave presently on the suit portion and make reasonable arrangements for dignified access by the appellant and her family, unless they mutually agree upon or a competent court subsequently directs a lawful alternative. 10. Each party shall bear her or his own costs of the suit, the counterclaim and this appeal. 11. The lower-court record shall be returned to the Chief Magistrate’s Court at Kakamega for implementation of these orders. DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT KAKAMEGA THIS 27TH DAY OF JULY 2026. **P. MUSYIMI** **JUDGE** **In the presence of:** Court Assistant: Mr. Kevin Injene For the Appellant: Mr. Alphonse Owuocha 1st Respondent: N/A 2nd and 3rd Respondents: N/A