https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11747

Chako v Mmbukane (Civil Appeal E067 of 2024) [2026] KEHC 11747 (KLR) (28 July 2026) (Judgment) Neutral citation: [2026] KEHC 11747 (KLR) Republic of Kenya In the High Court at Vihiga Civil Appeal E067 of 2024 RN Nyakundi, J July 28, 2026 Between Javana Chako Applicant and Ainea Mmbukane Respondent (Being an Appeal from the Decision of Hon. M. Ochieng Senior Principal Magistrate of Hamisi Law Court Civil Case No. 29 of 2021 and Delivered on 13th May 2022)) Judgment Litigation History 1.The Plaintiff Ainea Mmbukane filed a plaint dated 22nd July 2021 against the Defendant Javan Kisinya Chako seeking the following remedies:a.Refunding of Kshs 25,000b.Costs of this suitc.Interests on (a) and (b) above at Courts rated.Any other or further relief as may be just to so grant 2.The claim was based on the following pleadings that on 30th of October 2018 the Defendant purporting to sell Land Parcel No. Kakamega/Kedoli/978 entered into a sale agreement with the Plaintiff who was buying the said land parcel. It is from that intention to form a contract for the sale of land that on execution the Plaintiff remitted Kshs 20,000 to the Defendant who acknowledge receipt of the same. According to the Plaintiff soon thereafter the Defendant started to play hide and seek games and refused to complete the sale. This conduct by the Defendant triggered the filing of the suit based on the following grounds:a.Purporting to sale L.P No. Kakamega/Kedoli/978 when the Defendant had no intentions of completing the saleb.Receiving Kshs 20,000 from the Plaintiff by falsely pretensec.Dodging and or evading to co-operate with the Plaintiff in order to perfect the sale agreementd.Refusing and or neglecting to refund the said Kshs 20,000 despite persistent requests 3.This dispute proceeded into a full trial before the Subordinate Court and the judgement by the learned trial Magistrate pronounced on 13th May 2022 settled the issues as follows:It is clear that there was a Sale Agreement between the Plaintiff and the Defendant herein made on the 30th October 2018 for the suit property. The consideration was Kshs.1,350,000/-. Paragraph 2 of the sale Agreement indicates that “Kshs. 20,000/- has been paid to the Vendor by the Purchaser at the execution hereof safe receipt whereof by him is hereby acknowledged by his execution." The Defendant states that the Sale Agreement was a forgery of his signature. He however failed to prove the same by providing any handwriting expert to confirm or deny his allegations. In any case, PW2's evidence that he witnessed the execution of the said Sale Agreement was not challenged at all. I do note that the Sale Agreement is silent on the default clause. Parties are bound by their contract. This being the case this Court finds that there was breach of contract on the part of the Defendant who did not honour his end of the bargain. The Plaintiff must therefore be compensated Kshs. 20,000/-which was undisputedly received by the Defendant at the time of the execution of the Sale Agreement made on the 30th October 2018. In the foregoing judgment is entered in favour of the Plaintiff against the Defendant for Kshs. 20,000/- together with interest at Court rates from the time of this Judgement until payment in full and cost. 4.The Defendant now Appellant to this appeal was aggrieved with the decision of the trial Court from the memorandum of appeal filed in Court on 10th December 2024 provided the following grounds to be considered in appeal:a.That the Hon. Senior Principal Magistrate erred in facts and law in failing to scrutinize the particulars of the Respondents as evidenced in exhibits to the Court.b.That the Hon. Senior Principal Magistrate erred in law and facts by failing to identify the content in exhibits used, occasioned to a miscarriage of justice.c.That the Hon. Senior Principal Magistrate erred in law and facts by failing to identify that the demand letter dated 21/06/2021 was not served upon the applicant requiring him to refund Kshs. 20,000 which the applicant failed to comply with.d.That the Hon. Senior Principal Magistrate erred in law and facts by using the demand letter that was not served upon the applicant hence occasioning to a miscarriage of justice.e.That the Hon. Senior Principal Magistrate erred in law and facts by failing to determine on 23/11/2023 that the applicant had paid to Respondent on 05/10/2023, 28/09/2023 and 07/09/2023, Kshs. 2,500, Kshs. 2,000 and Ksh. 3,000 respectively hence committing applicant to civil jail at Kisumu Maximum prison on 23/11/2023.f.That the Hon. Senior Principal Magistrate erred in law and facts by committing the applicant to civil jail hence occasioning to a miscarriage of justice after abiding with her ruling dated 23/09/2023 in open Court at Hamisi law Court.g.Reasons whereof the Applicant prays for ordersa.That this application be allowed.b.That the decision be set aside, quashed/and or varied.c.That the Respondent be condemned to pay the cost of this appeal and the claim at the High Court.d.That the Respondent be condemned to pay any other relief that this honourable Court shall deem fit and just to grant. 5.This appeal was canvased by way of written submissions. First and foremost the Appellant Javan Kisinya shared with the Court the write-up and narration dated 26th February 2026 in which he dealt comprehensively with the contradictions in the testimony of the Plaintiff/Respondent and his documentary evidence in support of the same. The Appellant further argued and contended that the sale agreement before the trial Magistrate was never an instrument negotiated and agreed upon with the Respondent as founded by the trial Court in its judgment. The Appellant went further to submit that the subject parcel of land sale price was never Kshs 20,000 as alleged by the Plaintiff/Respondent for it had a market value of Kshs 4,000,000 and above and therefore the down payment of 20,000 is a false statement by the Respondent. It was also the Appellant’s contention that on diverse dates namely; On 28/09/2023 Paid to Counsel Kshs 2,000 On 07/09/2023 Paid Kshs 3,000 through Mpesa No. 072xxxx07 On 05/10/2024 Paid Kshs 2,500 through Mpesa No. 072xxxx07 On 02/12/2024 Paid Kshs 22,500 through Mpesa No. 072xxxx07 Total amount paid Kshs 60,000 6.In keeping view of the dispute the Appellant told the Court that he would have completed the decretal sum due to the Respondent had he not been committed to civil jail at Kodiaga prisons on grounds that he had disobeyed a Court order on execution and enforcement of the judgment. The Appellant therefore argued and submitted that the appeal should be allowed based on documentary evidence account showing payments to the Respondent as part of the final settlement of the decree extracted by the Magistrate’s Court. 7.Whereas learned Counsel for the Respondent strongly opposed the line of arguments presented by the Appellants by demonstrating the chronology of the transactions for the sale of land involving the two parties to this appeal. In addition, learned Counsel for the Respondent took the Court through the documentary evidence which on being scrutinized shows and establishes that indeed there was a sale agreement and that payment was made but thereafter it was not perfected by the Appellant. The upshot of it all on the part of learned Counsel was that the appeal lacks merit and the same should be dismissed. 8.The submissions by both the Appellant and the Respondent together with the trial record would form basis upon which this appeal would be determined. Legal Analysis and Determination i. The Law 9.In this jurisdiction the core elements for a valid contract formation include inter alia, offer, acceptance, consideration and intention to create legal relations. The Court consistently relies on these principles to determine if a binding agreement exists, even in cases of oral or implied contracts. The direct insight into how Courts have interrupted these legal principles are hereby demonstrated by the following cases: Offer, Acceptance & Intention (Oral Contracts): Kulevih v Kemboi (Civil Appeal E041 of 2023): The High Court assessed an oral business agreement between parties operating between Eldoret and the DRC. It highlighted that despite the absence of a written contract, mutual consent, agreement on terms, and consideration successfully validate a contract. Consideration & Mutual Assent: Morjaria v Patel (Civil Case 153 of 2018) The Court found that verbal agreements and partial repayments can serve as sufficient evidence of offer, acceptance, and consideration, proving that a formal written document is not always mandatory for a binding contract. Failure to Prove Contractual Elements: Timau Agro Industries Limited v National Oil Corporation of Kenya (Civil Case 349 of 2017) This judgment outlines what happens when a contract fails to form. The Court held that incomplete negotiations, missing consideration, and unfulfilled preconditions do not constitute a legally enforceable contract, dismissing the claim for specific performance. Similarly, the Court of Appeal in William Muthee Muthami v Bank of Baroda [2014] eKLR, “the aggrieved party to an agreement must, in addition, prove that there was offer, acceptance and consideration. It is only when those three elements are available that an innocent party can bring a claim against the party in breach.”In addition to the above, the Court from the common law jurisdiction in RTS Flexible Systems Ltd v Molkerei Alois Muller GmbH & Co KG (UK Production) [2010] UKSC 14, [45] held that:“The general principles are not in doubt. Whether there is a binding contract between the parties and, if so, upon what terms depends upon what they have agreed. It depends not upon their subjective state of mind, but upon a consideration of what was communicated between them by words or conduct, and whether that leads objectively to a conclusion that they intended to create legal relations and had agreed upon all the terms which they regarded or the law requires as essential for the formation of legally binding relations." 10.This appeal is based on the evidence by the Respondent who also produced in Court documentary evidence in a form of sale agreement as between the two parties who negotiated the contract on the sale of the land dated 30th October 2018. It was witnessed by Geoffrey Lazaro. The Appellant/Defendant also was given an opportunity to testify before that Court having adopted this witness in which he denied totally the existence of a binding contract. The role of this Court as an appellate Court is to independently evaluate and reconsider the evidence adduced before the trial Court and come to its own determination while bearing in mind that it neither saw nor heard the witnesses testify. (See Selle & Another V. Associated Motor Boat Company Ltd (1968) EA 123, 126 paras H-I). 11.The key principles applied on the validity of the contract and seal of land include inter alia the following: Breach of Contract: Occurs when a seller fails to transfer the title or a buyer defaults on payment instalments. Equitable Interest: Recognizes customary or equitable holdings (kibanja) versus statutory land titles. Remedies: Include orders for specific performance, refund of deposits, or general damages for trespass and breach. 12.This course of action between the Appellant and the Respondent is based on a sale agreement dated 30th October 2018 which was the subject matter of prosecution before the Trial Court and now on appeal. The brief covenants of the said agreement duly signed by both parties provided inter alia:RE: LR No: Kakamega/Kedoli/978An agreement is made this 30th day of October 2018 between Javan Kisinya Chako of ID No. 12xxxx32 P.O. Box 53 Wodanga With the Republic of Kenya (hereinafter called "VENDOR" and which expression shall where the context so admits include his personal representatives, executors and assigns) on one part and Aineah Mmbukane of ID No 08xxxx6 and of P.O. Box 55 Mahlasoni within the Republic of Kenya (hereinafter called "PURCHASER" and which expression shall where the context so admits include his personal representatives, executors and assigns) on the other part.How is mutually agreed as hereunder 1.The vendor agrees to sell and the purchaser agrees to buy the said parcel/ portion of land as marked on the ground. 2.The purchase price shall be Kenya Shillings ONe Million, Three Hundred Fifty Thousand Shillings (Ksh. 1.35 million only) of which a sum of Kenya Shillings Twenty Thousand (Ksh. 20,000/=) has been paid to the Vendor by the purchaser at the execution hereof safe receipt whereof by him is hereby acknowledged by his act execution. 3.The purchaser shall take vacant possession of the said parcel/ portion of the land immediately and the Vendor shall allow the purchaser full to enter the said parcel/portion of land and develop the same. 4.The Vendor hereof undertakes to executive all documents of sub-division or transfer in favour of the purchase in respect of the sold land. 5.The property is believed and shall be taken to be correctly described and is sold subject to all outgoing easement, restrictions and right affecting the same and if any error misstatement or omission shall be discovered the same shall not annul the sale but be corrected and or adjusted. Owner : Javan Kisinya ChakoID No : 12xxxx32Purchase: Aineah MmbukaneID No. : 08xxxx6WitnessesGeoffrey Omari Lazaro ID No. 22xxxx09 13.The Appellant seems to submit before this Court that there was no such agreement of the sale of land with the Respondent. Unfortunately for him this agreement is in black and white properly inked with terms and obligations of both the purchaser and the seller. Therefore, prima facie there is credible documentary evidence of a contract reduced into writing on a portion of the sale of land to be excised from LR No. Kakamega/Kedoli/978 accompanied with acceptance and consideration as part of the condition precedence in the making of a legal contract. In the defence of the Appellant if indeed if this was a fraud or a forgery nothing should have stopped him from seeking assistance from the National Police Service as provided for under Article 245 of the Constitution as read with the National Police Service Act of Kenya. 14.A cause of action is defined as every fact which is material to be proved to enable the Plaintiff succeed or every fact which if denied, the Plaintiff must prove in order to obtain a judgment. (Cooke vs Gull LR 8E.Р 116, Read v Brown 22 QBD P.31). It is disclosed when it is shown that the Plaintiff had a right, and that right was violated, resulting in damage and the Defendant is liable. This position has been reiterated in the Supreme Court decision of Tororo Cement Co. Ltd v Frokina International Limited SCCA No.2 of 2001. The question of whether a plaint discloses a cause of action must be determined upon perusal of the plaint alone together with anything attached so as to form part of it. See; Kebirungi v Road Trainers Ltd & 2 others [2008] HСB 72, Кapeka Coffee Works Ltd v NPART CACA No. 3 of 2000. It is settled that a cause of action arises when a right of the Plaintiff is affected by the Defendant's acts or omissions. (See; Elly B. Mugabi v Nyanza Textiles Industries Ltd [1992-1993] HСВ 227). 15.It is settled law in our legal system that Courts cannot rewrite contract for parties who remained bound by their agreed terms unless coercion, fraud or undue influence is proven. In the case of National Bank of Kenya Ltd vs. Pipe Plastics Samkolit (K) Ltd (2002) 2.E.A. 503, (2011) eKLR, the Court of Appeal at page 507 stated as follows:“A Court of law cannot rewrite a contract between the parties. The parties are bound by the terms of their contract, unless coercion, fraud or under influence are pleaded and proved."Similarly, in the case of Puis Kimaiyo Langat Vs. Co-Operative Bank of Kenya Ltd (2017) eKLR the Court of Appeal further stated that;“We are alive to the hallowed legal maxim that it is not the business of the Courts to rewrite contracts between parties, they are bound by the terms of their contracts, unless coercion, fraud or under influence are pleaded and proved" 16.This being a first appeal, the duty of the first appellate Court is as stated in the case of Selle v Associated Motor Boat Co. [1968] EA 123 where the Court of Appeal held that:“The first appellate Court has a duty to re-evaluate the evidence presented before the trial Court and arrive at its own independent conclusion. The appellate Court must subject the entire evidence to a fresh scrutiny and draw its own inferences. While the appellate Court should consider the trial Court's findings, it is not bound by them and must form its own independent judgment”. 17.This is a contract for the sale of land which was reduced into writing and oral evidence cannot be admitted to change the terms and intention of the parties in the making of a legal contract. That is what the Appellant is inviting this Court to do in this appeal. The law is at pains to agree with him on that assertion as demonstrated by the principles in the following cases: in Civil Appeal No. 61 of 2013, Fidelity Commercial Bank Limited Vs Kenya Grange Vehicle Industries Limited (eKLR) where the Court also cited with approval decision in Civil Appeal No. 23 of 2005, Prudential Assurance Company of Kenya Limited Vs Sukhwender Singh Jutney and Another, the Court of Appeal expressed itself in the following manner: “So………. where the intention of parties has in fact been reduced to writing, under the so called parole evidence rule, it is generally not permissible to adduce extrinsic evidence, whether oral or written, either to show the intention, or to contradict, vary or add to the terms of the document, including implied terms. Courts adopt the objective theory of contract interpretation, and profess to have the overriding aim of giving effect to the expressed intentions of the parties when construing a contract. This is what sometimes is called the principle of four corners of an instrument, which insists that a document’s meaning should be derived from the document itself, without reference to anything outside of the document (extrinsic evidence), such as the circumstances surrounding its writing or the history of the party or parties signing it”. 18.My interpretation of this entire appeal among others is based on the following legal core principles: Freedom of Contract: Parties freely enter agreements and must live with the bargains they strike, even if a bargain turns out to be bad or difficult Four Corners Rule: The meaning of a valid written contract must be found within the instrument itself rather than through outside or extrinsic evidence. Intervention Limits: Courts will only interfere, set aside, or invalidate a contract under narrow, proven exceptions like fraud, mistake, illegality, coercion, or undue influence. 19.What the Appellant want this Court to do is to modify contractual terms between him and the Respondent without proving fraud or undue influence. As I delved deeper into this appeal, screening it against the impugned judgment of the trial Court one predominant question which kept popping up is whether this was unconscionable contract. In law, unconscionable bargain is an equitable doctrine that is concerned with the fairness of a contract at the time one enters it. That is when the terms of the contract are unfair and unreasonable in so far as an informed or reasonable person would not agree to it thereby prejudicing the other party. The Courts will often rely on the doctrine of unconscionability to assess and potentially declare contracts it deems prejudicial against the other party, a nullity. However, there are three prerequisites to move into that direction.a.An oppressive bargain that shocks the conscience of the Court.b.The victims bargaining weakness.c.Unconscionable conduct by the stronger party. 20.The Appellant has failed to demonstrate before this Appeal’s Court that this contract as entered into with the Respondent was unconscionable. In the course of evaluating this appeal, the Appellant seems to lean towards an assertion that the sale agreement was a forgery. However, he failed to show by way of evidence that the Respondent committed a fraud and that evidence which was illegally obtained became the basis upon which the impugned judgment was founded by the trial Court. The jurisprudence of this country which is also now well settled has answer to the Appellant in the following dicta: fraud must be strictly pleaded, specifically particularized, and proved to an intermediate standard higher than a balance of probabilities but below reasonable doubt. Key foundational and appellate judgments outlining these principles include R.G. Patel v. Lalji Makanji, Vijay Morjaria v. Nansingh Madhansingh Darbar, and Kibathi t/a Osoro Chege Kibathi & Co Advocates v Musti Investments Ltd. 21.How does one prove fraud so that judicial discretion can be exercised in his or her favour to secure judgment of the Court? The Courts are guided by the following principles: Pleading and Particularization: Fraud cannot be inferred lightly or vaguely; the specific acts, facts, and particulars constituting the fraud must be stated explicitly on the face of the pleadings. Standard of Proof: The standard required is an intermediate one—more than a simple balance of probabilities, though it does not scale as high as proof beyond a reasonable doubt Burden of Proof: Under Section 107 of the Evidence Act, the legal burden rests squarely on the party who asserts that fraud or misrepresentation occurred. 22.The Appellant without blinking an eye just lied to Court that he never executed the sale agreement of the suit property in favour of the Respondent. The evidence on record tells a different story and became the basis upon which the Court below made a finding on account of that sale agreement. I am persuaded among other decisions cited elsewhere in this judgment with the dicta in Roop Kumar v Mohan Thedani (2003) 6 SCC 595. Thus:It is likewise a general and most inflexible rule that wherever written instruments are appointed, either by the requirement of law, or by the contract of the parties, to be the repositories and memorials of truth, any other evidence is excluded from being used either as a substitute for such instruments, or to contradict or alter them. This is a matter both of principle and policy. It is of principle because such instruments are in their own nature and origin, entitled to a much higher degree of credit than oral evidence. It is of policy because it would be attended with great mischief if those instruments, upon which men's rights depended, were liable to be impeached by loose collateral evidence. (See Starkie on Evidence, p. 648.) 23.A perusal of the evidence and the judgment of the trial Court, I decline to admit any evidence or otherwise as submitted by the Appellant for the purpose of contradicting, varying, adding or subtracting the terms of the sale agreement dated 30th October 2018. Accordingly, the appeal is dismissed with costs and the judgment and decree passed by the trial Court be and is hereby affirmed. Orders accordingly. DATED, SIGNED AND DELIVERED THIS 28TH DAY OF JULY 2026.…………………………………….R. NYAKUNDIJUDGE