https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3074

Denge (Suing as the administrator of the Estate of Agapitus Denge - Deceased) & another v Onyoyo & 3 others (Environment and Land Appeal E044 of 2023) [2026] KEELC 3074 (KLR) (21 May 2026) (Judgment) Neutral citation: [2026] KEELC 3074 (KLR) Republic of Kenya In the Environment and Land Court at Kisumu Environment and Land Appeal E044 of 2023 E Asati, J May 21, 2026 Between Millicent Atieno Denge (Suing as the administrator of the Estate of Agapitus Denge - Deceased) 1st Appellant Edward Ayimba Denge 2nd Appellant and Paul Okumu Onyoyo 1st Respondent Celeb Odhiambo Oguya 2nd Respondent Pamela Achieng Odolo 3rd Respondent District Land Registrar, Kisumu West 4th Respondent (Being an appeal from the Judgment and Decree of Hon. D.O. ONYANGO, C.M delivered at Kisumu on 14th December 2023 in Kisumu CMC ELC No. 246 of 2018) Judgment 1.This appeal challenges the judgment of Hon. D.O. Onyango C.M delivered on 14th December 2023 in Kisumu CMC ELC No. 246 of 2018 (the trial court suit). The Appellants instituted the trial court suit against the Respondents by a plaint dated 27th April 2018. The Appellants averred that at all material times the 1st Respondent was the registered owner of land parcel Title No. Kisumu/Kanyawegi/1425 (Plot No. 1425). The Appellants averred that the 1st Appellant was the widow and administrator of the estate of Agapitus Denge, deceased (the deceased), who at all material times was the beneficial owner of the land parcels Title No. Kisumu/Kanyawegi/1425 (Plot No. 1425) and Title No. Kisumu/Kanyawegi/9104 (Plot No. 9104). 2.The Appellants averred that on 30th October 1995, December 1995, and 24th October 1997, the 1st Respondent sold to the deceased portions of Plot No. 1425 measuring 2 acres at Kshs. 160,000/-, 1 acre at Kshs.95,000/- and 0.5 acres at Kshs. 45,000/- respectively. The Appellants averred that the 1st Respondent agreed to sell to the 1st Appellant additional portions of Plot No. 1425 on 30th July 2006 and 5th July 2007. 3.The Appellants averred that the 2nd Appellant was the son of the 1st Appellant. The Appellants averred that the 2nd Appellant entered into an agreement with the 1st Respondent on 5th November 2014 through which the 1st Respondent agreed to sell to the 2nd Appellant a portion of Plot No. 1425 measuring 2.3 acres at a consideration of Kshs. 470,000/-. 4.The Appellants averred that, as a sign of their commitment, they paid the required deposit under the said agreements of sale between them and the 1st Respondent. The Appellants averred that the 1st Respondent was to fulfil his part of the bargain by transferring the portions of Plot No. 1425 sold to the deceased and the 2nd Appellant to them. The Appellants averred that in breach of the said agreements of sale, the 1st Respondent failed, refused and/or neglected to fulfil his part of the agreement, and instead subdivided the suit property without the Appellants’ knowledge and sold portions thereof to the 2nd and 3rd Respondents. The Appellants averred that they were entitled to an order for specific performance. The Appellants averred that they were ready and willing to comply with their obligations under the said agreements. The Appellants prayed for judgment against the Respondents for:a.An order for specific performance of the agreements of sale between the parties.b.An order revoking the subdivision of Plot No. 1425 and the registration of the entire parcel of land in the name of the Appellants.c.An order of a permanent injunction restraining the Respondents, whether by themselves, their agents, servants or other persons claiming through them, howsoever, from selling, disposing, charging, transferring, pledging, leasing or by any other means whatsoever disposing of or otherwise dealing adversely with Plot No. 1425 and Plot No. 9104.d.Costs of the suit plus interest thereof. 5.The 1st Respondent filed his statement of defence dated 18th June 2018. The 1st Respondent admitted that he was the registered proprietor of land parcel Title No.Kisumu/Kanyawegi/1425 (Plot No. 1425), and that the land parcel Title No. Kisumu/Kanyawegi/9104 (Plot No. 9104) was registered in the name of Agapitus Apiyo Denge (deceased). The 1st Respondent averred that Plot No. 9104 was fraudulently registered in the name of the deceased. The 1st Respondent averred that Plot No. 9104 was excised from the 1st Respondent’s original parcel of land known as Title No. Kisumu/Kanyawegi/1425 (Plot No. 1425), without the 1st Respondent’s knowledge and/or authority. 6.The 1st Respondent averred that together with his deceased siblings, they entered into two written agreements dated 30th October 1995 and December 1995 with the deceased through which they agreed to sell to the deceased, two different and separate portions of Plot No. 1425, at a price of Ksh.160,000/- and Ksh.95,000/-, respectively. The 1st Respondent averred that the said agreements were not completed by payment of the entire purchase price, issuance of the consent of the Land Control Board to subdivide the original Plot No. 1425, and the actual subdivision and transfer of the respective portions to the deceased. 7.The 1st Respondent averred that the dimensions of the said portions of land sold to the deceased were physically demarcated on the ground, and appropriate boundary features were placed for each portion of land which was the subject of the said agreements of sale. The 1st Respondent averred that the sizes of the portions of land sold indicated in the agreements of sale were an approximation made by the parties without the benefit of a survey being undertaken to verify the same. The 1st Respondent averred that without the consent of the Land Control Board to subdivide the original Plot No. 1425, the actual subdivision of the same, and transfer of the respective portions of the same sold to the deceased to him, the deceased fraudulently and in collusion with the 4th Respondent, and the District Land Surveyor managed to excise a portion of the original Plot No. 1425 and created a new parcel of land known as Title No. Kisumu/Kanyawegi/9104 (Plot No. 9104), adjacent to the 1st Respondent's parcel of land, Title No. Kisumu/Kanyawegi/1425(Plot No. 1425). 8.The 1st Respondent admitted that he entered into a sale agreement dated 7th October 2009 with one Anne Billy Otieno in respect of another separate and different portion of the same parcel of land known as Title No. Kisumu/Kanyawegi/1425(Plot No. 1425). The 1st Respondent averred that by a separate agreement of sale dated 5th November 2014, the 2nd Appellant agreed to purchase the same portion of land previously sold to Anne Billy Otieno together with an additional similar portion of land which jointly were indicated as measuring 2.3 acres which was an approximation of the size of the land concerned as the actual size was demarcated on the ground and physical boundary features placed thereon although without the benefit of a survey. 9.The 1st Respondent averred that he did not subdivide Plot No. 1425 or transfer the portions thereof to the Appellants or otherwise progress with the transactions any further when he discovered that the Appellants had fraudulently sought to extend the boundaries of the portions of Plot No. 1425 sold to them, and claim the whole of the land parcel Title No. Kisumu/Kanyawegi/1425 instead of the rightful portions sold, which did not constitute the entire parcel of land. 10.The 1st Respondent averred that he could not progress the transactions any further when he discovered that the Appellants had fraudulently managed to collude with the land registry at Kisumu to create a new parcel of land known as Title No. Kisumu/Kanyawegi/1904 (Plot No. 1904) from Plot No. 1425 and register the same in the name of the deceased. 11.The 1st Respondent averred that the 2nd and 3rd Respondents legitimately purchased a portion of the original Plot No. 1425. The 1st Respondent averred that the said portion was different and separate from the portions of the same parcel of land which were sold to the Appellants. The 1st Respondent prayed that the Appellants’ suit be dismissed with costs. 12.In his counterclaim against the Appellants and the 4th Respondent, the 1st Respondent averred that, in view of the Appellants’ fraudulent conduct complained of, he was entitled to rescind and did, in fact, rescind by a written notice all the agreements for the sale of the portions of Plot No. 1425 which he entered into with the Appellants. The 1st Respondent sought judgment against the Appellants and the 4th Respondent for:a)A declaration that the agreements for the sale of the portions of Plot No. 1425 entered into between the 1st Respondent and the Appellants be deemed to have been rescinded.b)An order for the Appellants to give vacant possession of all of the portions of the 1st Respondent’s original Plot No. 1425, including Plot No. 9104 in their possession, and in default, an order of eviction therefrom, and the demolition of all the structures erected thereon.c)An order for revocation and or nullification of the register of Plot No. 9104.d)An order that the Appellants return to the Land Registrar, Kisumu County, the title document for Plot No. 9104 for purposes of destruction.e)An order directing the Kisumu County Surveyor, to rectify and or amend the Registry Index Map for Kanyawegi Adjudication Section by removing therefrom Plot No. 9104.f)An order that the costs of the suit and the counterclaim be borne by the Appellants. 13.The 2nd and 3rd Respondents filed a joint statement of defence dated 18th June 2018. The 2nd and 3rd Respondents averred that the 1st Respondent was the registered proprietor of Plot No. 1425. The 2nd and 3rd Respondents averred that they jointly purchased four different and separate portions of Plot No. 1425 for valuable consideration from the 1st Respondent and various members of his family, namely, George Omulo Okumu, George Owinga Ongila and, George Otieno Nyang’or, Peterlis Otieno Nyang’or, Charles Ago Nyang’or and Austine Omondi Nyang’or (vendors), who owned the same, through agreements dated 2nd November 2015, 7th December 2015,7th March 2016 and 26th October 2016, respectively. 14.The 2nd and 3rd Respondents averred that the said portions of Plot No. 1425 sold to them were combined and surveyed as one parcel of land, and carved out of Plot No. 1425 following a subdivision. The 2nd and 3rd Respondents averred that following the said subdivision, their parcel of land was given Title No. Kisumu/Kanyawegi/10146 (Plot No. 10146). The 2nd and 3rd Respondents averred that Plot No. 10146 was transferred to them by the 1st Respondent and registered in their names, as the owners thereof. 15.The 2nd and 3rd Respondents averred that the original Plot No. 1425 was registered in the name of the 1st Respondent as early as 11th September 2012, and that all transactions relating to the sale of the said portions of Plot No. 1425 to them by the said vendors were conducted with the mutual understanding that they were the actual beneficial owners of the same. The 2nd and 3rd Respondents averred that Plot No. 1425 was registered in the name of the 1st Respondent to hold in trust for the said vendors, awaiting transfer of their respective shares to each of them or to such person as they deemed appropriate. 16.The 2nd and 3rd Respondents averred that, from the time of purchase of the said portions of land from the said vendors until after the same were transferred to them, they were not aware of any adverse claims by anyone else over the same portions of land. The 2nd and 3rd Respondents averred that the Appellants were not entitled to the remedies sought against them, as the suit was misconceived, frivolous, and constituted an abuse of court process. The 2nd and 3rd Respondents prayed that the suit be dismissed with costs. 17.The 4th Respondent filed a statement of defence dated 15th July 2020. The 4th Respondent denied all the allegations made against it in the plaint. The 4th Respondent averred that if indeed any subdivision was effected on the suit property, the same was done lawfully and procedurally. The 4th Respondent prayed that the Appellants’ suit be dismissed with costs. 18.The Appellants filed an undated reply to defence and a defence to the 1st Respondent’s counterclaim. The Appellants joined issue with the 1st Respondent in his defence, save where the same consisted merely of admissions. In their defence to the counterclaim, the Appellants denied each and every allegation made against them in the counterclaim. The Appellants denied that the deceased acquired a portion of Plot No. 1425 fraudulently. The Appellants further denied that the 1st Respondent was entitled to the reliefs sought in the counterclaim. 19.The trial court heard the Appellants’ claim and the 1st Respondent’s counterclaim and rendered a judgment on 14th December 2023. The trial court found that the Appellants were not entitled to the equitable relief of specific performance. The trial court further found that the agreement of sale between the 1st Respondent and the 2nd Appellant was null and void for want of Land Control Board consent. The trial court further found that the title held by the 2nd and 3rd Respondents was acquired lawfully. The Court dismissed the Appellants’ claim against the Respondents. With respect to the 1st Respondent’s counterclaim, the trial court found that Plot No. 9104 was registered in the name of the deceased irregularly and illegally. The trial court held that since the deceased acted in bad faith in having Plot No. 9104 irregularly and fraudulently transferred to his name, the 1st Respondent was entitled to rescind the contract for the sale of the property to the deceased. The trial court further held that, since the 1st Respondent did not discover the deceased’s fraud until 2018, the 1st Respondent’s counterclaim was not time-barred. The trial court entered judgment in favour of the 1st Respondent as prayed in the counterclaim. 20.The Appellants were aggrieved by the trial court’s judgment and preferred the present appeal. In their Memorandum of Appeal filed on 20th December 2023, the Appellants challenged the trial court’s judgment on the following grounds:1.The Learned Magistrate completely misunderstood the evidence before him, wrongly analysed the evidence, thus dismissing the Appellants’ case.2.The Learned Magistrate erred in law and fact by finding that the Appellants were fraudulently registered as owners of land parcel Nos. Kisumu/Kanyawegi/9104 and Kisumu/Kanyawegi/1425.3.The Learned Magistrate erred in law and fact by failing to hold that the Appellants had acquired ownership of the suit property by adverse possession as they had been in occupation thereof for more than 20 years, and the Respondent’s counterclaim was time-barred by the Limitations of Actions Act, Cap. 22, Laws of Kenya.4.The Learned Magistrate erred in law and fact by failing to appreciate the totality of the evidence before him and the submissions made on behalf of the Appellants, thus reaching a conclusion that was contrary to the evidence before him.5.The Learned Magistrate erred in law in failing to follow the law established through judicial precedent.6.The Learned Magistrate erred in law and fact in basing his judgment on facts not pleaded.7.The Learned Magistrate totally misunderstood and wrongly evaluated the evidence before him and therefore arrived at a wrong conclusion. 21.The Appellants prayed that the appeal be allowed and the judgment of the learned Magistrate dated 14th December 2023 be set aside. The Appellants also prayed for costs of the appeal. 22.The appeal was argued by way of written submissions. The Appellants filed their submissions while the Respondents failed to do so. Appellants’ Submissions 23.The Appellants filed submissions dated 4th April 2025. The Appellants submitted that the 1st Appellant was the administratrix of the estate of Agapitus Apiyo Were (deceased) and was claiming Plot No. 9104 before the trial court, while the 2nd Appellant claimed Plot No. 1425. The Appellants submitted that the deceased and the 2nd Appellant purchased the suit properties from the 1st Respondent in the 1990s, before land adjudication was carried out in the area where the properties are situated. The Appellants submitted that by the time the adjudication was conducted in 2005, they were in occupation of the properties and as such were registered as the first owners thereof. The Appellants submitted that the 1st Respondent thereafter fraudulently subdivided the suit properties and sold portions thereof to the 2nd and 3rd Respondents. 24.The Appellants submitted that the 1st Respondent’s counterclaim was based on the allegation that the deceased was fraudulently registered as the first owner of the suit property during land adjudication. The Appellants submitted that adjudication disputes should have been dealt with through the dispute adjudication mechanism provided for in the Land Adjudication Act, Chapter 284 Laws of Kenya, which the 1st Respondent failed to do. The Appellants submitted that by the time the 1st Respondent filed his counterclaim in July 2018, the Appellants had been in open, uninterrupted and notorious occupation of the suit properties for over 20 years. The Appellants cited Section 7 of the Limitations of Actions Act, Chapter 22 Laws of Kenya, and the cases of Kimani Ruchine & Another v. Swift Rutherford & Co. Ltd & Another (1980) KLR 10 and Iga v. Makerere University (1972) E.A and submitted that the 1st Respondent’s counterclaim was time-barred. 25.The Appellants submitted that their families had lived on and cultivated the suit properties for over 12 years, thus satisfying the criteria for adverse possession. In support of this submission, the Appellants cited Kasuve v. Mwaani Investments Ltd & Others [2004] 1 KLR 184 and Mtana Lewa v. Kahindi Ngala Mwangandi [2015] eKLR. The Appellants urged the court to allow the appeal. Analysis and Determination 26.I have considered the pleadings and the proceedings of the trial court, the judgment of the court, the memorandum of appeal and the submissions filed by the Appellants. In their submissions, the Appellants raised some issues that were never pleaded, tried, and determined by the trial court. As observed by the trial court in the impugned judgment, parties are bound by their pleadings. It is not open to any party to raise, at the trial or submission stage, issues that are not founded on the pleadings. In Independent Electoral and Boundaries Commission & Another v. Stephen Mutinda Mule & 3 others [2014]eKLR the Court of Appeal cited with approval the Malawi Supreme Court of Appeal case of Malawi Railways Ltd v. Nyasulu [1998]MWSC 3 where the judges quoted an article by Sir Jack Jacob entitled “The present Importance of Pleadings” published in [1960] Current Legal problems, at P. 174 where the author stated as follows:“As the parties are adversaries, it is left to each one of them to formulate his case in his own way, subject to the basic rules of pleadings … for the sake of certainty and finality, each party is bound by his own pleadings and cannot be allowed to raise a different or fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The court itself is as bound by the pleadings of the parties as they are themselves. It is no part of the duty of the court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings. Indeed, the court would be acting contrary to its own character and nature if it were to pronounce any claim or defence not made by the parties. To do so would be to enter upon the realm of speculation. Moreover, in such event, the parties themselves, or at any rate one of them might well feel aggrieved; for a decision given on a claim or defence not made or raised by or against a party is equivalent to not hearing him at all and thus be a denial of justice…” 27.This court will therefore deal only with the issues raised and determined by the trial court, which is the subject of the appeal before the court. The court will not consider whether the trial court erred in failing to hold that the Appellants had acquired the suit properties by adverse possession. Although the Appellants claimed before the trial court that the 1st Respondent’s counterclaim was time-barred, and the parties submitted on the issue, and the issue was considered by the Court and a determination made, the Appellants never claimed to have acquired the suit properties by adverse possession either in their pleadings, evidence or submissions before the trial court. The time bar issue was raised solely as a defence to the counterclaim, and the court will consider it as such. 28.This being a first appeal, this court has to reconsider and re-evaluate the evidence on record and draw its conclusions on the issues that were raised for determination before the trial court. In Gitobu Imanyara & 2 Others v. Attorney General [2016] KECA 557 (KLR), the Court of Appeal stated as follows on the mandate of the court on a first appeal:“...this Court is not bound necessarily to accept the findings of fact by the court below and that 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 allowances in this respect.” 29.In Kenya Ports Authority v. Kuston (Kenya) Limited [2009] 2EA 212 the Court of Appeal stated that:“On a first appeal from the High Court, the Court of Appeal should 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 that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence.” 30.From the grounds of appeal, I am of the view that the issues arising for determination by this court are; whether the trial court erred in its finding that the Appellants had failed to prove their case against the Respondents to the required standard to warrant the grant of the relief sought by them before the court, whether the 1st Respondent had proved his counterclaim against the Appellants, and whether the appeal should be allowed and if so on what terms. 31.In Halsbury’s Laws of England, 4th Edition, Volume 17, at paras 13 and 14, the authors have stated as follows on the burden of proof:“ 13.The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. 14.The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case with separate issues.” 32.In Miller v. Minister of Pensions [1947] 2 All ER 372, Lord Denning J. stated that:“Thus proof on a balance of preponderance or probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties' explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained”. 33.I must say that the Appellants’ case was not properly pleaded. There was no clarity about what each Appellant was claiming. That lack of precision in the claim can also be gleaned from the submissions filed herein by the Appellants. From the evidence presented at trial, the 1st and 2nd Appellants had separate and distinct claims against the Respondents, in relation to the land parcels, Title Nos. Kisumu/ Kanyawegi/1425 and Kisumu/Kanyawegi/9104(Plot No. 1425 and Plot No. 9104). Plot No. 1425 and Plot No. 9104 were similarly separate and distinct registered parcels of land. The register for Plot No. 1425 was opened on 17th February 2005 with Onyoyo Ajwang’, Michael Nyangor Onyoyo, Ongila Onyoyo, Paul Okumu Onyoyo and Oluoch Onyoyo, as the first registered owners who held the property as tenants in common in equal shares. From its register, Plot No. 1425 measured 2.32 hectares (approximately 5.73 acres). 34.Plot No. 1425 was transferred to Paul Okumu Onyoyo, the 1st Respondent herein, on 11th September 2012. It is not clear under what circumstances this transfer was effected. From the record, it is indicated that the 1st Respondent acquired the property through succession. As at 11th September 2012, four (4) of the registered owners of Plot No. 1425 were deceased. Only the 1st Respondent was alive. It is not clear how the 1st Respondent could have acquired the entire property held by five (5) people as tenants in common in equal shares through succession, while he had one share in the property and was alive. The validity of the process through which the 1st Respondent acquired the whole property cannot be verified from a copy of the register which was produced in evidence. The issue was not raised before the trial court; for that reason, I will leave it there. 35.On 9th March 2016, the register of Plot No. 1425 was closed following the subdivision of the property into six (6) portions, namely, Title Nos. Kisumu/Kanyawegi/10143, 10144, 10145, 10146, 10147, and 10148. These titles were registered in the names of different individuals. Some of the persons in whose names these subdivisions of Plot No. 1425 were registered, such as George Owinga Ongila and George Omulo Okumu, were not parties to the trial court suit. 36.The 1st Appellant brought the trial court suit as the administratrix of the estate of Agapitus Apiyo Denge (deceased). At the time the trial court suit was filed, Plot No. 9104 was registered in the name of the deceased. The register of Plot No. 9104 was opened on 17th February 2005 with the deceased as the first registered owner. Plot No. 9104 measured 1.17 hectares (approximately 2.89 acres). 37.The 1st Appellant’s case was that the deceased had purchased portions of Plot No. 1425 between 1995 and 1997 through four (4) agreements of sale, on terms and conditions set out in the said agreements. The 1st Appellant averred that the total area of the portion of Plot No. 1425 purchased by the deceased measured 5.5 acres (approximately 2.225 hectares). The 2nd Appellant brought his claim as of right. The 2nd Appellant claimed that he purchased a portion of Plot No. 1425 measuring 2.3 acres (approximately 0.93 hectares). The Appellants claimed that they fulfilled their part of the agreements they entered into with the vendors who were being represented by the 1st Respondent, but the 1st Respondent had, in breach of the said agreements of sale, refused or neglected to transfer to them the portions of Plot No. 1425 purchased by them. The Appellants averred that the 1st Respondent had instead subdivided Plot No. 1425 without their knowledge and consent and had sold portions thereof to the 2nd and 3rd Respondents. The Appellants averred that they were ready and willing to complete their part of the said agreement of sale. The Appellants claimed that they were entitled to the whole of Plot No. 1425. It was on account of the foregoing that the Appellants sought the cancellation of the subdivision of Plot No. 1425, and specific performance of the said agreement of sale by the transfer of the entire parcel of land to them. 38.The claim by the 1st Appellant was difficult to understand. It was the 1st Appellant’s case that Plot No. 9104 was acquired by the deceased from the vendors who were represented by the 1st Respondent, and that Plot No. 9104 was initially part of Plot No. 1425. It was common ground before the trial court that the land comprised in Plot No. 9104 was the subject of some of the four (4) agreements of sale that the deceased entered into with the vendors represented by the 1st Respondent. Plot No. 9104 was already registered in the name of the deceased at the time the 1st Appellant came to court, and the same was not the subject of the subdivision and sale complained of by the Appellants. It was not clear as to which agreements of sale the 1st Appellant was seeking to enforce, now that some of the agreements concerned land that was part of Plot No. 9104 already registered in the name of the deceased. 39.From the record, Plot No. 1425 measured only 2.32 hectares (5.75 acres). How could the court grant the 1st Appellant land measuring 5.5 acres, and the 2nd Appellant land measuring 2.3 acres, from land measuring a total of 5.75 acres? The 1st Appellant’s claim was not clear, and as such, the reliefs sought by the 1st Appellant could not be granted. There was no basis upon which an order for specific performance could be granted. The same applies to an order for the cancellation of the subdivision of Plot No. 1425, and the registration of the entire parcel of land in the name of the Appellants. I wonder why the entire land was to be registered in the Appellants' joint names, while they claimed specific portions of the property under separate agreements of sale. I am of the view that the prayer for injunction was also rightly rejected as relates to the 1st Appellant. There was no evidence that the Respondents had interfered with Plot No. 9104, which was registered in the name of the deceased and which was fenced. The 1st Appellant did not prove that Plot No. 9104 extended beyond the deceased’s fence. There was therefore no need for an injunction to restrain interference with Plot No. 9104. 40.As for the 2nd Appellant, his claim was not disputed save for the measurement of the land sold to him, which was contentious. I am of the view that, in the circumstances of the case before the trial court, the court did not err in denying the 2nd Appellant an order of specific performance and granting him instead an order for the refund of the purchase price together with interest. Specific performance is a discretionary remedy, and the court may deny it for good reason even if a claimant has made out a case for it. 41.In the case of Amina Abdulkadir Hawa v. Rabinder Nath Anand& Another [2012] eKLR, the court cited Chitty on Contracts, 28th Edition (Sweet & Maxwell, 1999), Chapter 28 paragraphs 027 and 028 where the authors have stated as follows:“Specific performance is a discretionary remedy. It may be refused although the contract is binding at law and cannot be impeached on some specific equitable ground (such as undue influence) although damages are not an adequate remedy and although the contract does not fall within group of contracts discussed above which will not be specifically enforced. But the discretion to refuse specific performance is not arbitrary discretion but one to be governed as far as possible by fixed rules and principles…specific performance may be refused on the ground that the order will cause severe hardship to the Defendant where the cost of performance to the Defendant is wholly out of proportion to the benefit which performance will confer on the claimant and where the Defendant can put himself into a position to perform by taking legal proceedings against the third party…severe hardship may be a ground for refusing specific performance even though it results from circumstance which arise after the conclusion of the contract which effect the person of the Defendant rather than the subject matter of the contract and for which the claimant is in no way responsible.” 42.In Gurdev Singh Birdi and Marinder Singh Ghatora v. Abubakar Madhubuti CA No.165 of 1996 it was held that:“…It cannot be gainsaid that the underlying principle in granting the equitable relief of specific performance has always been that under all the obtaining circumstances in the particular case, it is just and equitable so to do with a view to doing more perfect and complete justice. Indeed...a plaintiff must show that he has performed all the terms of the contract which he has undertaken to perform, whether expressly or by implication, and which he ought to have performed at the date of the writ in the action.” 43.As I mentioned earlier in the judgment, as at the time the Appellants filed the trial court suit, Plot No. 1425 was no longer in existence. The property had been subdivided and portions thereof transferred to various people, some of whom were not parties to the suit before the trial court. It was common ground that the 2nd Appellant had not taken possession of the portion of Plot No. 1425 which was sold to him. Some of the persons who purchased portions of the suit property, such as the 2nd and 3rd Respondents, told the trial court that they were unaware of the Appellants’ interest in the property. I am of the view that, in the prevailing circumstances, it would not have been possible for the 1st Respondent to perform the agreement of sale that the vendors he was representing entered into with the 2nd Appellant. The appropriate remedy for the 2nd Appellant was a refund of the purchase price paid. 44.With regard to the 1st Respondent’s counterclaim, it is my finding that the trial court erred in allowing the same. First, there was no basis for the recission of the agreements of sale that the Appellants had entered into with the 1st Respondent and members of his family, and secondly, the counterclaim was time-barred. 45.Black’s Law Dictionary, Ninth Edition defines rescission as:“A party’s unilateral unmaking of a contract, for a legally sufficient reason such as the other party’s material breach or a judgment rescinding the contract ... Rescission is generally available as a remedy or defence for a non-defaulting party and is accompanied by restitution of any partial performance, thus restoring the parties to their pre-contractual positions”. 46.The 1st Respondent could rescind the agreements of sale for a legally sufficient reason, such as a material breach thereof, and in such a case, the 1st Respondent had an obligation to notify the Appellants of the rescission and refund the payments made on account of the purchase price. In Lucy Njeri Njoroge v. Kaiyahe Njoroge [2015] KECA 960 (KLR), the court stated as follows:“As the appellant was not notified of the cancellation of the agreement and accordingly, no effort was made to refund any part of the initial payment, we consider that the agreement could not have been held to have been rescinded. See also Kenya Airways vs Satwant Singh Flora (supra) where the sale agreement was found to have been rescinded following the notification of the purchaser of such rescission, and the refund by the vendor of the deposit paid. As such, the learned trial magistrate, and the judge fell into error when they so found that the agreement had been rescinded by the respondent.” 47.I have perused the 1st Respondent’s notice of rescission to the Appellants dated 5th June 2018. The purported notice was given while the trial court’s suit was pending, in which the 1st Respondent had been sued for breach of the said agreements of sale. The notice was also given when the 1st Respondent was not in a position to fulfil his part of the said agreements, since Plot No. 1425 no longer existed, the same having been subdivided and a portion thereof transferred by the 1st Respondent to himself and other parties. A remedy of rescission is not available to a defaulting party. The 1st Respondent also purported to rescind agreements of sale through which the 1st Respondent and his siblings had sold to the deceased a portion of Plot No. 1425, which was registered in the name of the deceased as Plot No. 9104 on the ground that the registration of the property in the name of the deceased as the first registered owner was fraudulent. An agreement which has been completed cannot be rescinded. Once an agreement is completed, there is nothing to rescind. Where the completion is carried out illegally or fraudulently, there are remedies available to an aggrieved party, but not rescission. The purported rescission could not, therefore, form a basis for the revocation of the title for Plot No. 9104 in the name of the deceased. Secondly, there was no evidence placed before the trial court in proof of the allegation that Plot No. 9104 was excised from Plot No. 1425 fraudulently. The 1st Appellant’s case was that when the 1st Respondent and his siblings sold the land comprised in Plot No. 9104 to the deceased in 1995, the adjudication process had not been completed in Kisumu Kanyawegi Registration Section, and that the portion of Plot No. 1425 sold to the deceased was excised at the time and registered in the name of the deceased as Plot No. 9104. Although the 1st Respondent issued a Notice to Sue the Attorney General, neither the Attorney General nor the Department of the Ministry of Lands in charge of Land Adjudication was made a party to the suit. 48.The Adjudication Record and the extract of the register for Plot No. 1425, produced by the 1st Respondent in evidence before the trial court, showed that Plot No. 1425 was adjudicated and registered on 17th February 2005, as measuring 2.32 hectares. The Adjudication Record and the extract of the register for Plot No. 9104, produced in evidence, also showed that the property was adjudicated and registered on 17th February 2005 as measuring 1.17 hectares. All these documents were certified as true copies by the Land Registrar, Kisumu County, and the District Land Adjudication and Settlement, Kisumu County. Apart from the 1st Respondent’s allegation that the measurement in the Adjudication Record for Plot No. 1425 was written using a different ink and that by 1995, when they sold a portion of the suit property to the deceased, the adjudication exercise had been completed, there was no reliable evidence to prove the alleged fraud. If the 1st Respondent was certain about his fraud allegations, I wonder why the 1st Respondent did not call a witness from the Land Adjudication and Settlement Office in Kisumu to confirm when the adjudication within Kisumu Kanyawegi Adjudication Section started and ended, and the circumstances under which Plot No. 9104 was adjudicated in favour of the deceased. The 1st Respondent was not an authority on the adjudication process and adjudication records to be able to declare which one was fraudulent and which was not. I am of the view that there was no evidence before the trial court on the basis upon which the court could find that Plot No. 9104 was registered in the name of the deceased fraudulently. 49.In Vijay Morjaria v. Nansingh Madhusingh Darbar & another [2000] eKLR, the court (Tunoi JA) 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 as distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.” 50.In Railal Gordhanbhai Patel v. Lalji Makanji [1957] EA 314, the court stated as follows at page 317:“Allegation of fraud must be strictly proved: although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required.” 51.It is also incorrect to say that the 1st Respondent only discovered the alleged fraud in 2018. The 1st Appellant produced in evidence before the trial court an acknowledgement of payment dated 5th July 2007, signed by the 1st Respondent and James Oluoch Onyoyo, in which they confirmed the existence of Plot No. 9104 and the fact that it was owned by the deceased (See page 149 of the record of appeal). The 1st Respondent’s counterclaim, which was brought 11 years later in 2018 based on the alleged fraud, was time-barred. The alleged fraud, which was not proved, concerned only Plot No. 9104 owned by the deceased. It is not clear from the judgment of the trial court how it became a basis for the purported rescission of the agreement of sale between the 2nd Appellant and the 1st Respondent and his siblings. It is my finding that the trial court erred in its finding that the 1st Respondent had proved his counterclaim against the Respondents. Conclusion 52.In conclusion, I will allow the appeal in part as follows:1.I uphold part of the trial court’s judgment dismissing the Appellants’ claim against the 2nd and 3rd Respondents.2.I also uphold part of the judgment of the trial court dismissing the appellants’ claim against the 1st Respondent for specific performance.3.I further uphold part of the judgment of the trial court ordering the 1st Respondent to refund to the 2nd Appellant the payment that was made to the 1st Respondent and his siblings on account of the purchase price for the land sold to the 2nd Appellant, together with interest, in lieu of specific performance.4.I set aside part of the judgment of the trial court rescinding the agreements entered into between the deceased, Agapitus Apiyo Denge, and the 1st Respondent and his family members in respect of the land comprised in Title No. Kisumu/Kanyawegi/9104,5.I set aside part of the judgment of the trial court cancelling the registration of the deceased, Agapitus Apiyo Denge, as the owner of land parcel Title No. Kisumu/Kanyawegi/9104.6.I set aside part of the judgment of the trial court granting vacant possession of the land parcel, Title No. Kisumu/Kanyawegi/9104 to the 1st Respondent.7.I set aside part of the judgment of the trial court ordering the 1st Respondent to refund to the 1st Appellant the monies paid as the purchase price by the deceased for land comprised in Title No. Kisumu/Kanyawegi/9104.8.I also set aside the trial court’s order on costs.9.Each party shall bear its costs of the lower court suit and the appeal. WRITTEN AND SIGNED AT NAIROBI BYS. OKONG’OJUDGEDELIVERED, DATED AND COUNTERSIGNED AT KISUMU THIS 21ST DAY OF MAY 2026E.ASATIJUDGEJudgment delivered virtually through Microsoft Teams Platform in the presence of:Sala for the AppellantsNo appearance for the 1st RespondentNo appearance for the 2nd and 3rd RespondentsNo appearance for the 4th RespondentAtika - Court Assistant