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Chelogoi v Wekesa (Civil Appeal 244 of 2020) [2026] KECA 1326 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KECA 1326 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal 244 of 2020 DK Musinga, PO Kiage & AO Muchelule, JJA July 10, 2026 Between Davis Nathan Chelogoi Appellant and Dr. Noah Mahalang’ang’a Wekesa Respondent (Being an appeal from the Judgment and Decree of the Environment and Land Court at Nairobi (Okong’o, J.) (as he then was) dated 6th February 2020 in ELC Case No. 427 of 2012) Judgment JUDGMENT OF MUSINGA, J.A. 1.This appeal arises from the judgment of the Environment and Land Court at Nairobi (Okong’o J.) (as he then was) delivered on 6th February 2020 dismissing the appellant’s claim for alleged unpaid balance of the purchase price of two parcels of land, alternative claim for rescission of the sale, and cancellation of the transfers thereof. 2.The dispute that gave rise to this appeal concerned two parcels of land known as Kapkoi/Mabonde Block 1/268 and Kapkoi/Mabonde Block 1/269 (hereinafter referred to as “the suit properties”). At all material times, the appellant was the beneficial owner of the suit properties, although parcel No. 269 was registered in the name of one Sammy Silas Komen. The appellant was a retired civil servant and former Deputy Provincial Commissioner, while the respondent was at the material time the Member of Parliament for Kwanza Constituency. 3.By a plaint dated 20th July 2012, the appellant sought judgment against the respondent for Kshs. 6,000,000, being the balance of the purchase price for the suit properties and/or damages for breach of legitimate expectation, and in the alternative, rescission of the agreement for sale and cancellation of the transfers effected in favour of the respondent. 4.The crux of the appellant’s case was that by an agreement for sale dated 10th September 2009, he agreed to sell, and the respondent agreed to purchase, the suit properties at a consideration of Kshs. 12,000,000. According to the appellant, the respondent paid a deposit of Kshs. 200,000, leaving a balance of Kshs. 11,800,000, which was to be financed through a loan facility from the Parliamentary Service Commission (PSC), and paid upon transfer of the suit properties to the respondent and registration of a charge in favour of the PSC. He contended that although the suit properties were duly transferred and charged, the respondent only remitted a further payment of Kshs. 5,800,000 through his advocates, bringing the total amount paid to Kshs. 6,000,000, leaving an outstanding balance of Kshs. 6,000,000. The appellant, therefore, maintained that the respondent was in breach of the agreement for sale and had frustrated his legitimate expectation that the full purchase price would be paid upon completion of the transaction. 5.In his statement of defence dated 27th August 2012, the respondent denied that the agreed purchase price was Kshs. 12,000,000. He pleaded that the only agreement executed by the parties was one dated 10th September 2009, providing for purchase price of Kshs. 6,000,000. He admitted having paid a deposit of Kshs. 200,000 and pleaded that the balance of Kshs. 5,800,000 was subsequently paid through loan proceeds obtained from the PSC. Although he admitted obtaining a mortgage facility of Kshs. 11,800,00 from the PSC, he maintained that the amount of the loan had no relationship with the agreed purchase price. He therefore denied owing the appellant any further sum, and asserted that the purchase price had been paid in full. 6.In his amended reply to defence, the appellant denied being party to any agreement reflecting a purchase price of Kshs. 6,000,000. He maintained that the agreement presented to the PSC and relied upon by the respondent in obtaining financing reflected a purchase price of Kshs. 12,000,000. He further contended that the respondent, having benefited from that agreement by obtaining the loan facility, was estopped from denying its validity. 7.At the trial, the appellant testified as the sole witness in support of his claim. He adopted his witness statement dated 20th July 2012 and produced various documents, including an agreement for sale dated 10th September 2009, which reflected a purchase price of Kshs. 12,000,000, correspondence from the PSC dated 11th September 2009 and 18th July 2011, and another agreement for sale dated 10th September 2009 indicating a purchase price of Kshs. 14,000,000. He testified that he received a deposit of Kshs. 200,000 from the respondent and thereafter surrendered the title documents, executed transfer instruments and Land Control Board documents to Messrs Jackline P.A. Omolo & Co. Advocates to facilitate completion of the transaction. He stated that the suit properties were subsequently transferred to the respondent and charged in favour of the PSC. 8.The appellant further testified that despite the transfers having been effected, he only received a further Kshs. 5,800,000 through the respondent's advocates, bringing the total amount paid to Kshs. 6,000,000. It was his evidence that the agreed purchase price was Kshs. 12,000,000, and that the respondent had failed to pay the outstanding balance of Kshs. 6,000,000, thereby breaching the agreement for sale and frustrating his legitimate expectation that the entire purchase price would be paid upon completion of the transaction. In cross-examination, the appellant acknowledged that he had signed the transfer instruments relating to the suit properties. He maintained, however, that he had signed blank transfer forms, and denied entering into an agreement for sale in which the purchase price was stated as Kshs. 6,000,000. He also denied knowledge of the circumstances under which the agreement reflecting a purchase price of Kshs. 14,000,000 was generated, and maintained that the respondent remained liable to pay the balance of the purchase price. 9.The respondent testified in his own defence and adopted his witness statement dated 5th September 2012. He produced, among other documents, an agreement for sale dated 10th September 2009 reflecting a purchase price of Kshs. 6,000,000, transfer instruments relating to the suit properties, and correspondence exchanged between the parties and their advocates. His evidence was that the agreed purchase price for the suit properties was Kshs. 6,000,000 and that the appellant received a deposit of Kshs. 200,000 together with a further Kshs. 5,800,000, and therefore, the full purchase price had been paid. 10.The respondent further testified that although he obtained a mortgage facility of Kshs. 11,800,00 from the PSC, that amount did not represent the purchase price of the suit properties. According to him, the parties executed two versions of the agreement for sale, one showing the actual purchase price of Kshs. 6,000,000, and another one indicating Kshs. 12,000,000 which was intended solely to facilitate approval of a larger loan facility from the PSC. He maintained that the agreement showing a purchase price of Kshs. 12,000,000 did not reflect the true consideration agreed upon between the parties, and denied any knowledge of the agreement reflecting a purchase price of Kshs. 14,000,000. 11.The respondent also called Ms. Jackline P.A. Omolo (Ms. Omolo), Advocate, who had prepared the agreement for sale, acted in the conveyancing transaction, and represented the PSC in relation to the mortgage facility. She adopted her witness statement and testified that the genuine agreement executed by the parties was the one dated 10th September 2009, reflecting a purchase price of Kshs. 6,000,000. According to her, the agreement indicating a purchase price of Kshs. 12,000,000 was created after page two of the original agreement had been altered and substituted so as to replace the figure of Kshs. 6,000,000 with Kshs. 12,000,000. In cross-examination, she maintained that the Kshs. 12,000,000 agreement was not the original agreement executed by the parties, and that the actual purchase price agreed upon remained Kshs. 6,000,000. 12.Upon considering the pleadings, evidence and submissions, the learned judge identified four issues for determination, namely: whether the agreement for sale between the parties provided for a purchase price of Kshs. 6,000,000 or Kshs. 12,000,000; whether the respondent breached the agreement for sale; whether the appellant was entitled to the reliefs sought in the plaint; and who should bear the costs of the suit. 13.On the first issue, the learned judge found that the parties entered into only one legal and valid agreement for sale, namely, the agreement dated 10th September 2009 in which the purchase price for the suit properties was agreed at Kshs. 6,000,000. The court found that the agreement reflecting a purchase price of Kshs. 12,000,000 was created by the respondent, with the knowledge of the appellant, for purposes of deceiving the PSC into advancing a larger mortgage facility than the respondent would otherwise have qualified for. 14.In arriving at that finding, the trial court relied on the respondent's affidavit sworn on 19th September 2013 in which he admitted that the agreement indicating a purchase price of Kshs. 12,000,000 had been created for purposes of obtaining a larger loan from the PSC. The trial court also relied on the evidence of Ms. Jackline P.A Omolo, Advocate, who testified that the agreement showing a purchase price of Kshs. 12,000,000 was generated by substituting page two of the original agreement, in which the purchase price had been stated as Kshs. 6,000,000. The trial court further relied on correspondence exchanged between the appellant and his former advocates, particularly the appellant's letter dated 7th July 2011 and the demand letter dated 22nd February 2011, which the trial court found demonstrated that the appellant was aware of both agreements and had acknowledged the existence of the agreement reflecting a purchase price of Kshs. 6,000,000. 15.The trial court observed that both parties denied having entered into the agreement showing a purchase price of Kshs. 14,000,000, and consequently attached no evidential value to that document. The trial court further found that the appellant had not been candid with the court when he denied having signed the agreement reflecting a purchase price of Kshs. 6,000,000. The trial court ultimately concluded that although the parties may have had a separate verbal arrangement under which the respondent was to pay the appellant additional monies arising from the respondent's loan transaction with the PSC, the only legal and enforceable agreement executed by the parties was the agreement providing for a purchase price of Kshs. 6,000,000. 16.Having found that the agreed purchase price was Kshs. 6,000,000, the learned judge held that the respondent had fully discharged his obligations under the agreement by paying Kshs. 200,000 as a deposit, and a further sum of Kshs. 5,800,000 upon completion of the transaction. The trial court consequently found that the appellant had received the full purchase price stipulated in the agreement and that the respondent had not breached the agreement for sale. 17.On the issue whether the appellant was entitled to the reliefs sought, the trial court held that having found that the agreed purchase price was Kshs. 6,000,000, and that the same had been paid in full, the appellant was not entitled to any further payment from the respondent. The court further held that no basis had been laid for rescission of the agreement for sale, which had been fully performed. 18.With regard to the appellant's contention that the Land Control Board consents had been fraudulently procured, the court found that clause 4 of the agreement placed the obligation of obtaining the requisite consents upon the appellant. The court further found that both the respondent and Ms. Omolo had testified that it was the appellant who procured the said consents, and that no evidence had been adduced to show that the respondent obtained them fraudulently. The court observed that, if any fraud attended the acquisition of the consents, the same could only be attributed to the appellant. The court, therefore, concluded that the appellant had failed to establish any basis for the reliefs sought in the plaint. 19.In the end, the learned judge found no merit in the appellant's claim and dismissed the suit. However, although the respondent was successful, the court declined to award him costs. The court held that the respondent had been involved in the illegal and fraudulent alteration of the agreement for sale, and had used the altered agreement to obtain a loan from the PSC which he would otherwise not have qualified for. The court expressed its disapproval of that conduct by directing that each party bears its own costs. 20.Being dissatisfied with the judgment, the appellant lodged this appeal. In his memorandum of appeal, he contends that the learned judge erred in law and in fact by, inter alia, finding that the valid and enforceable agreement for sale was the one dated 10th September 2009 providing for a purchase price of Kshs. 6,000,000 rather than Kshs. 12,000,000; failing to appreciate that the respondent's defence was founded on altered, forged and otherwise illegal documents; relying on evidence that was inconsistent with the law and the weight of the evidence on record, including the testimony of Ms. Omolo, notwithstanding her alleged conflict of interest and the advocate-client relationship that existed between her and the appellant; admitting and relying on correspondence exchanged on a without prejudice basis; failing to appreciate the legal consequences of the respondent's admitted alteration of the sale agreement and the public policy implications arising therefrom; failing to find that there existed a basis for rescission of the agreement and cancellation of the transfers on account of fraud, irregularities in the Land Control Board consents and other alleged illegalities surrounding the transaction; failing to properly evaluate the evidence concerning the purchase price, the deposit paid, the loan facility obtained from the PSC, the parties' contractual obligations and the amounts allegedly paid to the appellant; failing to grant the appellant the reliefs sought notwithstanding findings implicating the respondent in fraudulent and unlawful conduct; failing to make appropriate orders consequent upon such findings; improperly declining to award the appellant costs; and generally reaching conclusions that were unsupported by the pleadings, the evidence and the law. 21.The appellant seeks, inter alia, that the judgment and decree of the Environment and Land Court delivered on 6th February 2020 be set aside, that this Court be pleased to compel the respondent to pay the appellant the balance of Kshs. 6,000,000 together with interest, or in the alternative, that the sale and transfer of the suit properties be rescinded, and that he be awarded the costs of the suit and of this appeal. 22.At the hearing of this appeal learned counsel Mr. Omaiyo appeared alongside Mr. Orioki for the appellant, while the respondent was represented by learned counsel Mr. Mungla. Both counsel highlighted their respective client’s written submissions. 23.Highlighting the appellant's written submissions dated 7ᵗʰ October 2020, Mr. Omaiyo submitted that the learned judge erred in finding that the valid agreement between the parties was the agreement reflecting a purchase price of Kshs. 6,000,000. Counsel contended that the transaction was permeated by fraud, irregularities and illegalities which ought to have led the court to invalidate it. It was submitted that the respondent relied on different agreements reflecting purchase prices of Kshs. 6,000,000, Kshs. 12,000,000 and Kshs. 14,000,000 at various stages of the transaction, thereby demonstrating a deliberate manipulation of transactional documents to obtain financial advantage, depending on the institution with which he was dealing, whether by securing a larger loan facility or by understating the true consideration payable under the transaction. Counsel further contended that the respondent’s reliance on those inconsistent agreements was irreconcilable with his assertion that the agreed purchase price was Kshs. 6,000,000, and constituted evidence of fraud which the trial court failed to properly appreciate. According to him, if the true purchase price was Kshs. 6,000,000 as alleged by the respondent, there would have been no reason for the respondent to present documents indicating substantially higher purchase prices. 24.In support of the allegation of fraud, counsel relied on Kibiro Wagoro Makumi v Francis Nduati Macharia & Another [2018] eKLR, where the court adopted Black's Law Dictionary's definition of fraud as follows:“Fraud consists of some deceitful practice or wilful device, resorted to with intent to deprive another of his right, or in some manner to do him an injury. As distinguished from negligence, it is always positive, intentional. As applied to contracts, it is the cause of an error bearing on a material part of the contract, created or continued by artifice, with design to obtain some unjust advantage to the one party, or to cause an inconvenience or loss to the other. Fraud, in the sense of a Court of equity, properly includes all acts, omissions, and concealments which involve a breach of legal or equitable duty, trust, or confidence justly reposed, and are injurious to another, or by which an undue and unconscientiously advantage is taken of another…" 25.Counsel further relied on Kibiro Wagoro Makumi v Francis Nduati Macharia & Another (supra), where the court reiterated that fraud is a serious allegation which must be specifically pleaded and proved to a standard higher than a balance of probabilities, though not beyond reasonable doubt. Drawing from Wallingford v Mutual Society (1880) 5 App. Cas. 685, Garden Neptune v Occident [1989] 1 Lloyd's Rep. 305, Lawrence v Lord Norreys (1880) 15 App. Cas. 210, Davy v Garrett (1878) 7 Ch. D. 473 and Insurance Company of East Africa v Attorney General & 3 Others, HCCC No. 135 of 1998, the court emphasized that allegations of fraud must be distinctly pleaded and strictly proved by evidence. Counsel submitted that the evidence on record demonstrated fraudulent conduct on the part of the respondent, particularly in relation to the preparation and use of the various sale agreements and other transactional documents. 26.Counsel further relied on the same decision, which in turn cited Arthi Highway Developers Limited v West End Butchery Limited & 6 others [2015] eKLR and Dr. Joseph Arap Ng'ok v Justice Moijo Ole Keiwua & 5 Others, Civil Appeal No. Nai. 60 of 1997, in setting out the law on fraud and indefeasibility of title.Counsel submitted that although section 23(1) of the repealed Registration of Titles Act, now substantially reflected in sections 25 and 26(1) of the Land Registration Act, accords protection to a registered proprietor, such protection is unavailable where the proprietor is shown to have been a party to fraud or misrepresentation. Counsel also relied on John Peter Mureithi & 2 Others v Attorney General & 4 Others [2006] eKLR for the proposition that the doctrine of indefeasibility of title cannot be invoked to shield glaring fraud and irregularities. It was therefore submitted that having found that the respondent participated in the alteration and use of inconsistent sale agreements, the trial court ought to have found that the respondent's title was impeachable. 27.Counsel additionally referred to Kitale Chief Magistrate's Court Criminal Case No. 1053 of 2018 arising from the transaction, in which the respondent was charged with offences relating to the making and use of false documents. Counsel submitted that the charges, which stemmed from the alleged alteration and use of sale agreements reflecting different purchase prices for the suit properties reinforced the appellant's contention that the transaction was tainted by fraud and illegality and ought not to have been upheld by the trial court. 28.Turning to the issue of Land Control Board consents, counsel submitted that the trial court failed to appreciate the significance of the irregularities surrounding the procurement of the consents. Referring to sections 6 and 7 of the Land Control Act, counsel contended that a transaction involving agricultural land becomes void where the requisite consent is not lawfully obtained. Relying on Moses Kamande Nyambura v Francis Munyua Ngugi [2018] eKLR, he submitted that where such a transaction is rendered void, any monies paid remain recoverable as a civil debt. He therefore asserted that the respondent would suffer no prejudice if the transaction is nullified since any monies paid could still be recovered through the statutory mechanism provided under the Act. 29.Counsel further submitted that the respondent did not disclose the alleged purchase price of Kshs. 6,000,000 to the Land Control Board, and instead indicated a nil purchase price, thereby denying the Board an opportunity to assess the fairness of the transaction. It was contended that the respondent executed Land Control Board documents as though he already possessed proprietary interests in the suit properties, and that certain signatures appearing on the relevant documents did not belong to either party. According to counsel, those irregularities demonstrated that the transfer process was tainted by fraud and illegality. 30.Counsel also faulted the learned judge for relying on what was described as a "gentleman's agreement" between the parties. He submitted that any such arrangement was unenforceable in law because it was not reduced into writing as required by section 3(3) of the Law of Contract Act. Counsel asserted that contracts relating to the disposition of interests in land must be in writing, signed by the parties and properly attested. Reliance was placed on Silverbird Kenya Limited v Junction Limited & 3 Others [2013] eKLR for the proposition that section 3(3) is couched in mandatory terms and does not in fact divest the court of jurisdiction in instances where there is no compliance. Consequently, the trial court is said to have erred in relying on an alleged unwritten arrangement to explain the discrepancies in the parties' documentation and conduct. 31.Further, counsel submitted on what he described as material inconsistencies in the transfer instruments, valuation forms and related transactional documents. He submitted that some transfer documents omitted the purchase price altogether, while valuation forms simultaneously reflected nil values for the suit properties, and a value of Kshs. 1,000,000 for purpose of stamp duty. According to counsel, those inconsistencies demonstrated deliberate under-declaration and concealment of the true consideration, and should have led the court to conclude that the transaction was fraudulent. 32.Counsel also challenged the admission and reliance upon the evidence of Ms. Omolo, contending that she acted for both parties in the transaction as well as the PSC, which financed the purchase, thereby placing her in a position of conflict. In support of that argument, counsel relied on Nils Staffan Wirell v Emily Chepkosgey [2018] eKLR, where the court observed that an advocate acts in conflict of interest where he or she serves competing or incompatible interests, and that justice must not only be done but must also be seen to be done. Counsel therefore submitted that given Ms. Omolo's multiple roles in the transaction, her evidence ought not to have been admitted or relied upon by the trial court. 33.Counsel further submitted that the respondent's fraudulent conduct was not confined to the alteration of the sale agreement, but extended to the preparation and use of statutory transfer and registration documents. He contended that the various transfer forms contained material omissions and inconsistencies, including the failure to disclose the consideration payable for the suit properties. Referring to Item 12A of the Schedule to the Stamp Duty Act, counsel submitted that stamp duty is payable on an instrument of transfer before registration, and that proper assessment of duty necessarily depends on disclosure of the true consideration. He relied on section 46 of the Land Registration Act and contended that the transfer instruments presented for registration did not comply with the statutory requirements governing land transactions. It was submitted that the respondent variously declared the value of the suit properties as nil or failed altogether to disclose the consideration in documents submitted to the Land Control Board, the valuer and the lands registry, thereby facilitating the registration of the transfers on the basis of false or misleading information. Counsel maintained that these irregularities were not mere procedural defects but formed part of a deliberate scheme to conceal the true nature and value of the transaction. 34.He further contended that the respondent, being a Member of Parliament and therefore a public officer within the meaning of the Public Officer Ethics Act, was under a statutory duty to act honestly and with integrity. Referring to sections 19 and 20 of that Act, counsel contended that the respondent breached those obligations by knowingly making false declarations and concealing material information during the transfer process. According to counsel, the respondent's conduct demonstrated a persistent pattern of dishonesty and illegality, which ought to have led the trial court to reject the impugned transaction. 35.Counsel also relied on the decision of the Supreme Court of Uganda in David Kizito Kamonya & 7 Others v Betty Kizito, Civil Appeal No. 187 of 2012, for the proposition that under- declaration of consideration and failure to disclose material information affecting a land transaction may amount to fraud sufficient to invalidate the resulting transfer. He contended that the respondent's conduct in declaring inconsistent values and failing to disclose the true consideration attracted the same legal consequences. Counsel additionally invoked section 26(2) of the Statutory Instruments Act, 2013, contending that omissions affecting the substance of prescribed forms and calculated to mislead could not be dismissed as mere procedural defects. 36.On the issue of the correspondence relied upon by the trial court, counsel submitted that the learned judge improperly admitted and relied on documents exchanged on a "without prejudice" basis. In support thereof, counsel cited section 23 of the Evidence Act which provides that in civil cases, no admission may be proved if it is made either upon an express condition that evidence of it is not to be given, or in circumstances from which the court can infer that the parties agreed together that evidence of it should not be given. 37.Counsel therefore contended that the correspondence exchanged on a “without prejudice” basis was inadmissible under section 23 of the Evidence Act and ought not to have been considered by the trial court. Counsel further relied on Collector of Land Acquisition, Anantnag & Another v Mst Katiji & Others (1988) SC 897, where the Supreme Court of India observed that judicial authority exists not to legalize injustice on technical grounds, but to remove injustice. It was submitted that the court ought to have approached the dispute from the standpoint of substantive justice rather than relying on inadmissible evidence. 38.In conclusion, counsel submitted that the evidence on record disclosed a consistent pattern of fraud, illegality, misrepresentation and procedural irregularities on the part of the respondent. He reiterated that the respondent altered agreements, manipulated transactional documents, procured irregular consents, concealed the true consideration, and benefited from documents whose authenticity was doubtful. In view of the foregoing, we were urged to allow the appeal, set aside the judgment of the Environment and Land Court, grant the reliefs sought in the memorandum of appeal, and, in the alternative, annul the respondent's title and restore ownership of the suit properties to the appellant. 39.On his part, Mr. Mungla, highlighting the respondent's written submissions dated 28ᵗʰ October 2020, urged the Court to dismiss the appeal and uphold the judgment of the Environment and Land Court. Counsel began by outlining the background to the dispute, submitting that the parties entered into a sale transaction in respect of the suit properties through an agreement prepared by Messrs Jackline P.A. Omolo & Co. Advocates. He noted that the transaction was completed, the suit properties transferred to the respondent, and title documents issued in his favour. Counsel pointed out that the dispute only arose approximately two years after completion when two agreements dated 10ᵗʰ September 2009 surfaced, one reflecting a purchase price of Kshs. 6,000,000, and the other Kshs. 12,000,000. 40.Before addressing the merits of the appeal, counsel reiterated the mandate of this Court on a first appeal, namely, to reconsider, re- evaluate and independently analyse the evidence on record and draw its own conclusions, while bearing in mind that it neither saw nor heard the witnesses testify. In support of that proposition, counsel relied on Abok James Odera & Associates v John Patrick Machira t/a Machira & Company Advocates [2013] eKLR. 41.Turning to the substance of the appeal, counsel submitted that the appellant had anchored much of his case on allegations of fraud, illegality and collusion, yet no evidence had been adduced before the trial court to prove those allegations. He contended that although fraud featured prominently in the pleadings and submissions, the appellant did not pursue those allegations in his testimony, and no evidence was led to support them. Counsel maintained that fraud therefore never emerged as a live evidentiary issue before the trial court and could not properly form the basis of the appeal. He further submitted that parties are bound by the evidence adduced at trial and not by mere allegations contained in pleadings. 42.In that regard, counsel relied on Kenneth Nyaga Mwige v Austin Kiguta & 2 Others [2015] eKLR, where the Court explained that a document merely filed in court does not become evidence unless it is formally produced as an exhibit by a witness and admitted by the court. Counsel contended that documents not produced as exhibits remain unproved and do not constitute part of the evidentiary record upon which a court may base its decision. He further relied on the decision of this Court in Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & Another [2014] eKLR for the proposition that submissions cannot take the place of evidence, and that a party must prove his case through evidence adduced at trial rather than through arguments advanced by way of submissions. Counsel also cited East African Portland Cement Co. Ltd & Another v Peter Ividah Muliro [2019] eKLR, where the court underscored the obligation imposed by Order 18 rule 2 of the Civil Procedure Rules requiring parties to present evidence in support of the issues they seek to prove. On the strength of those authorities, counsel contended that matters such as the alleged criminal proceedings, issues relating to Land Control Board consents and other allegations raised by the appellant could not properly be relied upon because they were either not supported by evidence, or did not form part of the evidentiary record before the trial court. 43.According to counsel, the central question before both the trial court was which of the two agreements dated 10ᵗʰ September 2009 represented the genuine arrangement between the parties. He contended that the evidence overwhelmingly established that the valid agreement was the one reflecting a purchase price of Kshs. 6,000,000. In that regard, counsel relied heavily on the testimony of Ms. Omolo, the advocate who prepared the agreement, who testified that the purchase price agreed by the parties was Kshs. 6,000,000, and that the appellant had been paid in full. He submitted that her evidence was particularly significant because she was directly involved in the preparation and completion of the transaction. 44.Counsel further submitted that the respondent candidly explained the existence of the agreement reflecting a purchase price of Kshs. 12,000,000 by admitting that it had been altered and presented to the PSC for purposes of securing a larger loan facility. According to counsel, that admission explained the source of the Kshs. 12,000,000, agreement and demonstrated that it was not the operative contract governing the transaction between the parties. 45.It was further submitted that several pieces of documentary evidence corroborated the respondent's position. Counsel pointed to the transfer instruments which reflected a consideration of Kshs. 3,000,000 for each parcel, giving a combined consideration of Kshs. 6,000,000. He also relied on correspondence authored by the appellant, which, he said, acknowledged the existence of the Kshs. 6,000,000 agreement and distinguished it from another agreement containing false particulars. Counsel asserted that these admissions demonstrated that the appellant was aware that the genuine agreement reflected a purchase price of Kshs. 6,000,000, and that his claim for an additional Kshs. 6,000,000 was therefore unsustainable. 46.Counsel maintained that upon evaluating all the evidence, the trial court correctly concluded that the valid and enforceable agreement between the parties was the one dated 10ᵗʰ September 2009 providing for a purchase price of Kshs. 6,000,000. He submitted that the learned judge's finding was firmly grounded on the evidence and should not be disturbed on appeal. 47.Addressing the appellant's complaint regarding the evidence of Ms. Omolo, Mr. Mungla submitted that the issue of conflict of interest had never been raised before the trial court and was therefore an afterthought. He contended that the appellant did not object to her testimony during the trial, and that, having drawn the agreement and handled the transaction, she was both a competent and compellable witness capable of assisting the court to determine which agreement constituted the genuine contract between the parties. 48.In conclusion, counsel submitted that although the trial court criticized the respondent's conduct in altering the agreement presented to the PSC, that conduct did not affect the validity of the underlying sale agreement. He contended that the appellant had improperly transformed that issue into the foundation of his claim, despite the absence of evidence linking it to the reliefs sought. Counsel further pointed to the appellant's admission during cross-examination that he had abandoned his supplementary witness statement, contending that the matters raised therein were consequently abandoned at trial. For those reasons, he urged this Court to dismiss the appeal with costs and affirm the trial court’s judgment. 49.As this is a first appeal, it is our duty to analyze and re-assess the evidence on record and reach our own conclusions in the matter. It was put more appropriately in Selle -vs- Associated Motor Boat Co. [1968] EA 123, thus:“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally ( Abdul Hameed Saif vs. Ali Mohamed Sholan (1955), 22 E. A. C. A. 270).” 50.Although the memorandum of appeal contains numerous grounds challenging the judgment of the trial court, it is apparent that this appeal turns principally on the following three interrelated issues: which of the competing agreements dated 10ᵗʰ September 2009 constituted the genuine and enforceable agreement between the parties; whether the respondent discharged his obligations under that agreement; and whether the appellant established fraud, illegality or any procedural or evidentiary impropriety capable of impeaching the completed transaction or otherwise, entitling him to rescission and cancellation of the respondent's title or any of the other reliefs sought. I shall address those issues sequentially, bearing in mind that the resolution of the first issue largely informs the determination of the others. 51.On the first issue, which, in my view, lies at the heart of this appeal, the germane question is which of the two agreements relied upon by the parties, namely, the agreement stipulating a purchase price of Kshs. 6,000,000 and that stipulating a purchase price of Kshs. 12,000,000 embodied the parties’ true contractual intention. The appellant consistently maintained that the suit properties were sold for Kshs. 12,000,000, and that, having received only Kshs. 6,000,000, the respondent remained indebted to him in the sum of Kshs. 6,000,000. The respondent on the other hand asserted that the agreed purchase price was Kshs. 6,000,000, and that he had fully discharged his obligations under the agreement. Upon evaluating the evidence, the learned judge accepted the respondent’s position and held that the agreement reflecting a purchase price of Kshs. 6,000,000 constituted the only valid and enforceable agreement between the parties. 52.I have reviewed the record and am not persuaded by the appellant's contention that the learned judge erred in finding that the agreement reflecting a purchase price of Kshs. 6,000,000 constituted the genuine agreement between the parties. In stating so, I note from the record that three agreements, all dated 10ᵗʰ September 2009, emerged in the course of the dispute reflecting purchase prices of Kshs. 6,000,000, Kshs. 12,000,000 and Kshs. 14,000,000 respectively. The existence of multiple agreements bearing the same date, same parties, yet stipulating materially different purchase prices inevitably raised questions regarding the authenticity and probative value of the documents relied upon by the parties. Notably, neither the appellant nor the respondent accepted the agreement reflecting a purchase price of Kshs. 14,000,000 as genuine, and no evidence was adduced to demonstrate that it embodied the parties' actual bargain. In those circumstances, the learned judge was entitled to accord that document no evidential weight. The inquiry, therefore, rightly narrowed down to whether the agreement reflecting a purchase price of Kshs. 6,000,000 or that reflecting Kshs. 12,000,000 represented the parties' true contractual bargain. 53.In resolving that question, the learned judge undeniably had before him cogent evidence which adequately supported the conclusion that the agreement reflecting a purchase price of Kshs. 6,000,000 embodied the parties' true bargain. Central to that evidence was the testimony of Ms. Omolo, the advocate who prepared the sale agreement and conducted the conveyancing transaction. She testified that the original agreement executed by the parties provided for a purchase price of Kshs. 6,000,000. As the advocate who drew the agreement and oversaw the completion of the transaction, she was well placed to speak to the circumstances under which the parties contracted. Although the appellant challenged her credibility on the basis of an alleged conflict of interest, her testimony remained direct and material evidence on the central issue before the court, namely, which of the competing agreements embodied the parties' true bargain. 54.Ms. Omolo's testimony did not stand in isolation. It found considerable support in the documentary evidence on record. In particular, the transfer instruments executed in furtherance of the transaction, appearing at pages 216 to 219 of the record of appeal, reflected a consideration of Kshs. 3,000,000 in respect of each parcel of land, yielding an aggregate consideration of Kshs. 6,000,000. More significantly, the respondent admitted that the agreement reflecting a purchase price of Kshs. 12,000,000 had been crafted and utilized to support his application for a larger mortgage facility from the PSC. That admission was wholly consistent with Ms. Omolo's evidence and substantially undermined the appellant's assertion that the Kshs. 12,000,000 agreement embodied the parties' true bargain. Taken together, the documentary evidence and the respondent's own admission provided compelling support for the learned judge's conclusion that the agreement reflecting a purchase price of Kshs. 6,000,000 was the genuine one. 55.The learned judge also drew support from correspondence exchanged between the appellant and his former advocates, particularly the appellant's letter dated 21ˢᵗ July 2011 and the letter by M/s O.N. Ojwang' & Co. Advocates dated 22nd February 2011. Having examined that correspondence, I am satisfied that the learned judge properly appreciated its evidential significance. In his letter of 21ˢᵗ July 2011, the appellant instructed his advocates to disregard what he described as the "gentleman's agreement", and asserted that the documents presented to the District Land Control Board reflected a consideration of Kshs. 11,800,000, upon which the respondent subsequently obtained financing from the PSC. The appellant further acknowledged that he had received Kshs. 6,000,000, leaving an outstanding balance of Kshs. 6,000,000, which he instructed his advocates to recover. Read in its proper context, the letter was consistent with the learned judge's conclusion that the appellant was fully aware of the documentation employed during the transaction and the differing purchase price reflected therein. 56.The letter dated 22nd February 2011 reinforces that conclusion. In that correspondence, M/s O.N. Ojwang' & Co. Advocates referred to a written agreement reflecting a purchase price of Kshs. 6,000,000, and a separate verbal arrangement for an additional Kshs. 6,000,000. Considered together, the two letters substantially support the learned judge's finding that the appellant himself distinguished between the genuine agreement and the alleged collateral arrangement for the additional Kshs. 6,000,000. The correspondence, therefore, undermines the appellant's contention that the only operative agreement between the parties was the one reflecting a purchase price of Kshs. 12,000,000. 57.It is trite that an appellate court will not lightly interfere with findings of fact by a trial court, unless it is shown that the court acted on no evidence, misapprehended the evidence, took into account irrelevant considerations or failed to take into account relevant ones. See Peters v Sunday Post Ltd [1958] EA 424. I am not persuaded that any of those circumstances exist in the present case. The learned judge's finding that the genuine agreement between the parties was the one that stated the purchase price as Kshs. 6,000,000 was firmly anchored on the evidence and cannot be disturbed. 58.Having held that the learned judge was right in finding that the genuine agreement between the parties was the agreement reflecting a purchase price of Kshs. 6,000,000, the natural consequence is that the appellant's claim for an alleged outstanding balance of Kshs. 6,000,000 cannot be sustained. The evidence led before the trial court established, and indeed it was not disputed, that the respondent paid a deposit of Kshs. 200,000 and a further Kshs. 5,800,000 upon completion of the transaction. The appellant acknowledged receipt of those sums. The total amount paid thus matched the agreed purchase price in full. It follows, therefore, that the respondent fully performed his obligation under the agreement, and the learned judge was correct in finding that no balance of the purchase price remained outstanding. 59.The appellant nevertheless contends that, notwithstanding the respondent's performance of the agreement reflecting a purchase price of Kshs. 6,000,000, the transaction was vitiated by fraud, illegality and other procedural improprieties, which entitled him to the reliefs sought. It is in that context that I shall consider his complaints regarding the evidence of Ms. Omolo, the alleged irregularities in the procurement of the Land Control Board consents, the alleged criminal proceedings, the impugned correspondence, and his prayer for rescission and cancellation of title. 60.There can be no dispute that fraud is a serious allegation. The law requires not only that it be specifically pleaded, but also that it be strictly proved. In Vijay Morjaria v Nansingh Madhusingh Darbar & another [2000] eKLR, Tunoi, JA. (as he then was) stated as follows:“It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must, of course, be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.” 61.As regards the standard of proof, this Court held in Peter Siriria v Raphael Kibusi [2019] eKLR thus:“The standard of proof in fraud cases was laid down in the old case of Ratilal Gordhanbhai Patel vs. Lalji Makanji [1957] EA 314 wherein it was stated that:“Allegation of fraud must be strictly proved, although the stand of proof may not be so heavy as to require proof beyond reasonable doubt, but something more than a mere balance of probabilities is required.” 62.It is evident from the plaint that the appellant specifically pleaded fraud, collusion and illegality on the part of the respondent in relation to the transaction. Indeed, the learned judge found that the agreement reflecting a purchase price of Kshs. 12,000,000 had been generated and utilized for the purpose of procuring a larger loan facility from the PSC. That finding was sufficiently grave to deny the respondent an award of costs notwithstanding his success in the suit. The difficulty for the appellant, however, is that those findings did not advance his claim for payment of a further Kshs. 6,000,000. Having found that the parties' genuine and enforceable agreement reflected a purchase price of Kshs. 6,000,000 and that the same had been paid in full, the learned judge could not, at the same time, enforce a claim founded upon the altered agreement reflecting a purchase price of Kshs. 12,000,000. Put differently, proof that the latter agreement was generated for an improper purpose did not advance the appellant's claim; if anything, it undermined the very foundation upon which that claim rested. 63.Having upheld the learned judge's finding that the agreement reflecting a purchase price of Kshs. 12,000,000 was generated and utilized for the improper purpose of procuring a larger loan facility from the PSC, I am satisfied that the learned judge was right in declining to grant relief founded upon that agreement. It is a settled principle that a court will not lend its aid to the enforcement of rights arising from an illegal or unlawful transaction. That principle has long been recognised both at common law and in our jurisprudence. In MAPIS INVESTMENT (K) LTD V KENYA RAILWAYS CORPORATION [2005] 2 KLR 410, this Court cited with approval Lindley, L.J. in SCOTT V BROWN, DOERING, MCNAB & CO (3) [1892] 2 QB 724, at 728 as follows:“Ex turpi causa non oritur action. This old and well- known legal maxim is founded in good sense, and expresses a clear and well recognized legal principle, which is not confined to indictable offences. No court ought to enforce an illegal contract or allow itself to be made the instrument of enforcing obligations alleged to arise out of a contract or transaction which is illegal, if the illegality is duly brought to the notice of the court, and if the person invoking the aid of the court is himself implicated in the illegality. It matters not whether the defendant has pleaded the illegality or whether he has not. If the evidence adduced by the plaintiff proves the illegality the court ought not to assist him.” (Emphasis added). 64.The application of that principle to the present appeal is, in my view, straightforward. Once the learned judge found, and I have affirmed, that the agreement reflecting a purchase price of Kshs. 12,000,000 had been generated and used to mislead the PSC into advancing a larger loan facility, which the appellant was aware of, he could not, consistent with the foregoing principle, invoke that very agreement as the foundation of a contractual claim. To hold otherwise would be to permit the Court to enforce rights said to arise from a transaction tainted by illegality, a course the law plainly forbids. As such, the claim for an additional Kshs. 6,000,000 cannot succeed. 65.I have nevertheless considered the authorities relied upon by the appellant on fraud, illegality and the impeachability of title, particularly Kibiro Wagoro Makumi v Francis Nduati Macharia & Another (supra), Arthi Highway Developers Limited v West End Butchery Limited & Others (supra), Dr. Joseph Arap Ng'ok v Justice Moijo Ole Keiwua & 5 Others (supra) and John Peter Mureithi & 2 Others v Attorney General & 4 Others (supra). I agree with the legal principles enunciated in those decisions. They were, however, decided in materially different factual contexts concerning the acquisition or validity of title through fraud or illegality. The present appeal is, however, fundamentally concerned with identifying the parties' operative agreement and determining whether the agreed purchase price thereunder was fully paid. Once the learned judge found, on the evidence, that the genuine agreement reflected a purchase price of Kshs. 6,000,000, and that the respondent had discharged that obligation in full, those authorities ceased to have any material bearing on the determination of the appellant's contractual claim. 66.It follows, therefore, that the appellant was not entitled to the equitable reliefs of rescission of the transaction and cancellation of the respondent's title to the suit properties. Those remedies could only arise upon proof of a legal basis for impeaching the completed transaction. Having found that the agreement providing for a purchase price of Kshs. 6,000,000 was valid and enforceable, that the agreed consideration had been paid in full, and that the transfers were completed pursuant to that agreement, I find no legal basis upon which the completed transaction could be rescinded or the respondent's titles cancelled. 67.Turning to the appellant's challenge to the evidence of Ms. Omolo, the complaint is that she acted for both parties and for the PSC and was therefore conflicted. While I accept the general proposition that an advocate ought not to act where there exists a conflict of interest, the germane question is whether the alleged conflict rendered her evidence inadmissible or otherwise so unreliable that the learned judge ought not to have acted upon it. The record shows that no objection was raised when she testified. More importantly, the fact that a witness may have acted for one or more parties to a transaction does not, per se, render that witness incompetent to testify. Put differently, the alleged conflict of interest did not render her evidence inadmissible; it merely bore on the probative value to be attached to her testimony. 68.I am, therefore, satisfied that the learned judge was entitled to consider Ms. Omolo's evidence together with the other evidence on record. In any event, the finding that the agreed purchase price was Kshs. 6,000,000 did not rest solely on her testimony. It was independently supported by the transfer instruments, the respondent's admissions, and the surrounding documentary evidence. Consequently, even if some reservation were to be entertained regarding her evidence, the outcome would remain the same. 69.As regards the issue of the alleged irregularities in the procurement of the Land Control Board consents, I am not persuaded that the learned judge fell into error. The learned judge found that, under clause 4(c) of the agreement reflecting a purchase price of Kshs. 6,000,000, the appellant bore the responsibility for obtaining the requisite Land Control Board consents. In any event, no evidence was adduced to demonstrate that any alleged irregularity in the procurement of the Land Control Board consents rendered the transaction void or otherwise entitled the appellant to the remedies sought. The appellant's assertions in that regard remained unsupported by evidence. As this Court observed in Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & Another, submissions, however forcefully made, cannot take the place of evidence. In the absence of evidential support, the allegations of irregularity could not provide a basis for the reliefs sought. 70.The same conclusion applies to the appellant's reliance on the alleged criminal proceedings instituted against the respondent. Although counsel referred to Kitale Chief Magistrate's Court Criminal Case No. 1053 of 2018 in the appellant's submissions before this Court, the record does not show that the alleged criminal proceedings or any records relating thereto were produced as exhibits before the trial court. Therefore, those matters were not part of the evidentiary record upon which the learned judge was called upon to determine the dispute. The learned judge cannot, therefore, be faulted for determining the case on the basis of the evidence that was properly before him, rather than on matters raised for the first time in submissions. 71.The appellant also challenged the learned judge's reliance on correspondence exchanged between the parties, contending that the same was protected by the "without prejudice" rule under section 23 of the Evidence Act. Even assuming, for argument’s sake, that some of the correspondence ought not to have been considered, we are satisfied that no miscarriage of justice resulted. The learned judge's conclusion was independently supported by several other pieces of evidence, including the testimony of Ms. Omolo, the transfer instruments, the respondent's admissions and the surrounding circumstances of the transaction. Accordingly, even if the impugned correspondence were excluded from consideration altogether, the evidentiary basis for the learned judge's conclusions would remain unaffected. Any error in admitting or relying upon that correspondence, if indeed there was one, did not, in my view, occasion a miscarriage of justice or affect the correctness of the decision. 72.Having carefully reconsidered the entire record, I am satisfied that the learned judge properly directed himself on both the evidence and the applicable law. I equally agree with the learned judge that the respondent's participation in the generation and use of the altered agreement to procure a larger loan facility from the PSC was wholly improper and deserved the censure it attracted. That conduct, however, did not relieve the appellant of the burden of proving his case as pleaded. The appellant failed to establish that any balance of the actual agreed purchase price remained outstanding, or that there existed any legal basis for rescission of the transaction or cancellation of the respondent's title. 73.In the end, I find no merit in this appeal and would dismiss it in its entirety. 74.As regards costs, I note that the learned judge declined to award costs to the respondent after finding that he had participated in the alteration of the agreement used to secure financing from the PSC. That finding has not been challenged by way of cross-appeal. In the circumstances, and bearing in mind the respondent's admitted misconduct, I would uphold the trial court’s finding regarding costs, and equally order that each party bears its own costs of this appeal. 75.As Kiage and Muchelule, JJ.A. agree, it is so ordered. JUDGMENT OF KIAGE, JA 1I have had the advantage of reading in draft the judgment of Musinga, JA. I entirely agree with his reasoning and conclusions, and have nothing useful to add. CONCURRING JUDGMENT OF MUCHELULE, J.A 1.I have had the advantage of reading the judgment in draft of my Brother D. K. Musinga, J.A. and I wholly agree with the reasoning and conclusion therein. 1I therefore have nothing useful to add. DATED AND DELIVERED AT NAIROBI THIS 10TH DAY OF JULY 2026.D. K. MUSINGA…………………… JUDGE OF APPEALO. KIAGE…………………..………… JUDGE OF APPEALA.O. MUCHELULE………………......………..JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR