https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9743

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA MACHAKOS** **HCCA E116 OF 2023** **JOSPHAT MUTUNGA MUSYOKA………………………...APPELLANT** **VERSUS** **ROBERT MATI MUSYIMI** **ISAAC MUKEKE MBUVI** **PATRICK GICHUKA KIARI (Suing as the official** **Representatives of ISAACHAR SELF HELP GROUP……………………………………………………RESPONDENTS** ***(Being an appeal from the Judgment of HON. C. N ONDIEKI (PM) in MACHAKOS CMCC NO. E144 of 2020 delivered on 2/05/2023)*** **JUDGMENT** 1. The trial court rendered judgment in favour of the respondents, who were officials of the Issachar Welfare Self-Help Group, against the appellant in a claim for breach of a rescission agreement relating to a land sale transaction. 2. The respondents had entered into a written sale agreement with the appellant on 23rd November 2018 for the purchase of a parcel of land known as Konza South/Konza South Block 5 (Konza) 300 for a consideration of Kshs. 2,850,000, although the sale agreement itself indicated a purchase price of Kshs. 3,450,000. 3. The respondents paid the purchase price, but in March 2019, they discovered that the appellant was not the owner of the suit property, leading to a mutual rescission of the contract through a written agreement dated 1st March 2019. 4. Under the rescission agreement, the appellant was obligated to refund the purchase price together with legal costs of Kshs. 40,000, totaling Kshs. 2,890,000, within 45 days from the date of the agreement. 5. The respondents claimed that the appellant breached this rescission agreement by failing to refund the money. 6. At the hearing, the respondents' chairman, Robert Mati Musyimi, adopted his witness statement and exhibited several documents, including the minutes of the group, a certificate of registration, the sale agreement, the rescission agreement, and a demand letter. 7. In cross-examination, he admitted that the secretary had not signed the minutes but asserted their authenticity, and he explained that contributions from group members were banked in KCB Bank. 8. He also acknowledged that payments totaling Kshs. 800,000 and Kshs. 500,000 were made to one Justus Mbinda Muema on the appellant's instructions, as the appellant had claimed to have bought the land from him and was completing the payment. 9. The respondents' counsel submitted that the signed agreements bound the appellant, that the court could not rewrite a contract for the parties, and that the rescission agreement permitted the respondents to pursue legal action despite an arbitration clause in the original sale agreement. 10. H relied on **L'Estrange v. F. Graucob Ltd [1934] 2 KB 394 and National Bank of Kenya Ltd v. Pipeplastic Samkolit (K) Ltd & Prof. Sam K. Ongeri [2001] eKLR.** 11. The appellant opposed the suit and denied all material facts. In his defence, he claimed that in late February 2019, he was called by a police officer from Kyumbi Police Station regarding an allegation of selling non-existent land, and he denied the allegation. 12. He stated that he had never entered into the sale agreement, was shocked to see it, and claimed that investigations were ongoing. 13. In cross-examination, he admitted that his ID number appeared in the sale agreement but denied that the signature was his, although he had not reported the alleged forgery to the police. 14. His counsel submitted that the minutes exhibited by the respondents were invalid because they were not signed by the secretary, that the respondents had not produced resolutions authorizing the chairman to sue on behalf of the group. 15. Further, that the respondents had failed to explain the source of the purchase money or the disparity between the pleaded purchase price and the amount stated in the sale agreement. 16. Counsel further argued that the respondents ought to have called the witnesses to the agreement to identify the appellant and that they failed to produce documents confirming due diligence on the land ownership. 17. He relied on **Kenya Commercial Bank Limited v. Stage Coach Management Ltd [2014] eKLR and Joseph Muriithi Nijru v. Mathenge Njeru [2016] eKLR.** 18. The trial court identified four issues for determination: whether there was a valid contract of purchase and a valid rescission agreement enforceable by law, whether there was a breach of the rescission agreement, what remedy was appropriate, and who should bear the costs of the suit. 19. The court analyzed the law on contracts and the burden of proof in civil cases, citing **Lakhamshi v. Attorney-General (1971) 1 EA 118, Ferdinand Ndung'u Waititu v. Independent Electoral & Boundaries Commission (IEBC) & 8 Others (2014) eKLR, and Abbay Abubakar Haji v. Marain Agencies Company & Another (1984) 4 KCA 53.** 20. The court reiterated that the legal burden of proof lies on the party who would fail if no evidence is adduced, as provided in sections 107, 108, and 109 of the Evidence Act, and that the standard of proof in civil cases is on a balance of probabilities, as defined **in Henry Hidaya Ilanga v. Manyema Manyoka (1961) EA 705 and Miller v. Minister of Pensions (1947) 2 All ER 372.** 21. On the validity of the contract, the court found that the sale agreement satisfied the formal requirements of section 3(3) of the Law of Contract Act, as it was in writing, signed by all parties, and attested by witnesses who were present when the contract was signed. 22. The court noted that the appellant's denial of signing the agreement amounted to a mere denial, and he failed to adduce evidence from a document examiner to challenge the authenticity of the documents, relying on the principle that documents speak for themselves. 23. The court also found that the rescission agreement was valid and enforceable, as the appellant did not successfully question its authenticity, and applied the principles in **Parker v. South Eastern Railway [1877] 2 CPD 416 and L'Estrange v. F. Graucob Ltd [1934] 2 KB 394,** which hold that a party who signs a written agreement is bound by its terms in the absence of fraud. 24. On the issue of breach, the court found that the appellant had failed to refund the purchase price and legal costs within the stipulated 45 days, thereby breaching the rescission agreement. 25. The court dismissed the appellant's arguments regarding the respondents' lack of authority to sue, noting that the respondents were officials of the group and had exhibited minutes and a certificate of registration. 26. The court also rejected the appellant's contention that the respondents had not explained the disparity in the purchase price, as the respondents had clarified that Kshs. 2,850,000 was the total amount paid to the appellant. 27. The court further held that the respondents' failure to sue Justus Mbinda Muema did not negate their claim against the appellant, as the payments to Justus were made on the appellant's instructions. 28. Regarding the appropriate remedy, the court found that the respondents were entitled to restitution based on the doctrine of unjust enrichment, as the appellant had been enriched at the respondents' expense and it would be unjust to allow him to retain the benefit. 29. The court relied on **Samuel Kamau Macharia v. Kenya Commercial Bank Limited, Kenya Commercial Finance Company Limited [2003] eKLR,** which discussed the historical background and elements of unjust enrichment, including that the defendant must have been enriched, the enrichment must have been at the plaintiff's expense, and it must be unjust to allow the defendant to retain the benefit. 30. The court also considered the law on interest, noting that in the absence of a specific rate agreed in the contract, the court had discretion to order interest, and it applied a rate of 12% from the date the refund became due, which was approximately 14th April 2019, based on the 45-day period provided in the rescission agreement. 31. The court cited **National Bank of Kenya Ltd v. Pipeplastic Samkolit (supra)** for the principle that parties are bound by their contract, and B**.O.G. Tambach Teachers Training College v. Mary Kipchumba [2018] eKLR** for the distinction between interest on the principal sum and interest on costs under sections 26 and 27 of the Civil Procedure Act. 32. On the issue of costs, the court exercised its discretion under section 27 of the Civil Procedure Act and found no good reason to depart from the general rule that costs follow the event. 33. The court awarded costs to the respondents, with interest at court rates from the date of judgment until payment in full, relying on **Morgan Air Cargo Ltd v. Everest Enterprises Ltd (2014) eKLR, Rose Kaume & Another v. Stephen Gitonga Mbaabu & Another (2016) eKLR, and Jasbir Singh Rai & 3 others v. Tarcholan Singh Rai & 4 others (2014) eKLR**. 34. The trial court ultimately entered judgment for the respondents, ordering the appellant to refund Kshs. 2,890,000 with interest at court rates effective 14th April 2019 until payment in full, and to bear the costs of the suit with interest at court rates from the date of judgment. 35. The appellant appealed against the said judgment on the following grounds; 36. ***THAT the trial Court erred in law and in fact in finding that the Respondents' claim is meritorious and consequently entering Judgment in favor of the Respondents.*** 37. ***THAT the trial Court erred in law and in fact in finding that there was a valid contract of purchase/sale of a parcel of Land Title Number Konza South/Konza South Block 5 (Konza)/300.*** 38. ***THAT the trial Court erred in law and fact by failing to consider the evidence tendered by the Appellant during trial.*** 39. ***THAT the trial Court erred in law and in fact in finding that the Appellant had received the total amount of money claimed by the Respondents.*** 40. ***THAT the trial magistrate erred in law and in fact to find that the Appellant was in breach of the rescission agreement dated 1st of March 2019.*** 41. ***THAT the Trial Court erred in law and in fact finding that the Respondents had proved their case on a balance of probabilities whilst the Respondents' evidence was uncorroborated by key witnesses.*** 42. The parties filed written submissions as follows; The appellant submitted that he appealed against the judgment of Principal Magistrate delivered on 2nd May 2023 in Civil Suit No. E144 of 2020. 43. The respondents, Robert Mati Musyimi, Isaac Mukeku Mbuvi, and Patrick Gichuka Kiarii, acting as officials of the Issachar Welfare Self Help Group, had originally sued the appellant seeking a declaration that his failure to refund Kshs. 2,890,000 amounted to a breach of contract and an order compelling him to pay that sum. 44. The trial magistrate found in favour of the respondents, prompting this appeal. 45. The appellant’s submissions frame the appeal as a first appeal, emphasizing that the High Court, as the first appellate court, is duty-bound to reevaluate, re-analyze, and reconsider the evidence afresh and draw its own conclusions’ 46. Further, to bear in mind that it did not have the advantage of seeing and hearing the witnesses testify, as affirmed in the case of **Gitobu Imanyara & 2 Others v. Attorney General [2016] eKLR.** 47. The appellant argues that the trial court’s judgment was erroneous because it failed to consider the totality of the evidence and instead relied on the principle that documents speak for themselves, without adequately addressing the appellant’s denial of the sale agreement and the subsequent rescission agreement. 48. It is submitted that the respondents’ case, founded on a sale transaction, required corroboration of their sole witness’s testimony, especially since the appellant had called into question the authenticity of the key documents. 49. The appellant relies on the case of **Benson Wandera Okuku v. Israel Were Wakho [2020] eKLR,** which held that while no particular number of witnesses is required to prove a fact under Section 143 of the Evidence Act. 50. Further, that certain types of cases, particularly those involving transactions, which by nature involve multiple parties, or cases requiring corroboration, may necessitate evidence from more than one witness to be sufficient. 51. The appellant points out that the respondents’ own witness gave contradictory evidence, testifying that the purchase price was Kshs. 3,450,000 yet later referencing Kshs. 2,850,000, and also stated that payments of Kshs. 500,000 in cash and Kshs. 800,000 by cheque were made to one Justus Mbinda Muema, who was neither made a party to the suit nor called as a witness to support the respondents’ claim. 52. The appellant contends that this gap is critical because the sale agreement dated 23rd November 2018 explicitly indicates that Justus Mbinda Muema received those sums, yet no explanation was offered as to why the respondents sought recovery from the appellant rather than from that third party. 53. The appellant further submits that the respondents failed to produce material evidence proving that the appellant actually received the total amount of Kshs. 2,850,000, and therefore they did not discharge the burden of proof imposed by Section 107 of the Evidence Act, which requires any party who desires a court to give judgment on a legal right or liability dependent on the existence of certain facts to prove that those facts exist. 54. In light of these deficiencies, the appellant prays that the appeal be allowed with costs, contending that the trial court’s judgment was based on no cogent evidence and that the respondents’ case was contradictory and shaky. 55. The respondents, who were the plaintiffs in the lower court, in their submissions provide the factual background of the dispute, which originates from a sale agreement dated 23rd November 2018 for the purchase of land known as Konza South/Konza South Block 5(Konza)/300 at an agreed price of Ksh. 3,450,000. 56. The plaintiffs made payments totalling Ksh. 2,850,000, which included sums paid directly to a third party, Justus Mbinda Muema, on the defendant's instructions, because the defendant had not fully paid that third party for the same land. 57. When the defendant failed to initiate the land transfer process, the parties rescinded the original sale agreement through a rescission agreement dated 1st March 2019, in which the defendant agreed to refund the plaintiffs Ksh. 2,850,000 plus an additional Ksh. 40,000 for costs incurred, with payment to be made within 45 days. 58. The defendant's failure to honour the rescission agreement led the plaintiffs to file suit, and at trial, the plaintiffs called one witness, Robert Mati Musyimi, who adopted his statement and produced various documents, including minutes and a certificate of registration for the self-help group. 59. The plaintiffs contend that the defendant, having signed the rescission agreement and admitted his indebtedness, is legally bound to pay the sum of Ksh. 2,890,000, and they rely on the principle that a party who signs a contractual document is bound by its terms, absent fraud or misrepresentation, as established in **L'Estrange v. F. Graucob Ltd [1934] 2 K.B. 394.** 60. The plaintiffs further cite **National Bank of Kenya Ltd v. Pipeplastic Samkolit (K) Ltd & Prof Sam K. Ongeri [2001] eKLR** for the proposition that courts cannot rewrite contracts between parties, and that parties are bound by their contract unless coercion, fraud, or undue influence are pleaded and proved. 61. The respondents address the defendant's argument at trial that the dispute should have been referred to arbitration as per the original sale agreement, but they point out that the rescission agreement expressly superseded the earlier contract and, in clause 4, gave the purchasers liberty to take appropriate legal action in the event of default. 62. The respondents cite **Ellis Mechanical Services Ltd v. Waters Construction Ltd [1978] Lloyd's Rep 33** to support the position that where there is a clear, undisputed sum due, judgment should be given for that amount, and only the remainder, if any, should go to arbitration. 63. Regarding the defence case, the respondents note that the defendant claimed he did not know the plaintiffs and that his signatures on both agreements were forged, yet he failed to call a document examiner to verify his allegations or to summon the drawer of the agreements for cross-examination. 64. The respondents further point to a letter dated 5th August 2020 from the defendant's own counsel, which they say amounts to an admission of indebtedness, thereby undermining the defendant's defence. 65. In conclusion, the respondents submit that the appeal raises only issues of fact that were adequately dealt with at the trial level, and they pray that the court dismisses the appeal with costs. 66. The issues for determination in this appeal are as follows; 67. ***Whether the trial court properly discharged its duty in evaluating the evidence and arriving at its findings.*** 68. ***Whether the Sale Agreement dated 23rd November 2018 and the Rescission Agreement dated 1st March 2019 were valid and enforceable contracts.*** 69. ***Whether the appellant received the total amount claimed by the respondents and consequently breached the Rescission Agreement.*** 70. ***Whether the respondents proved their case against the appellant on a balance of probabilities.*** 71. This is a first appeal against the judgment of the trial court delivered on 2nd May 2023. As a first appellate court, the duty is to re-evaluate, re-analyze, and reconsider the evidence afresh and draw independent conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses testify. 72. This was as established in **Gitobu Imanyara & 2 Others v. Attorney General [2016] eKLR and Selle & Another v. Associated Motor Boat Company Ltd & Others [1968] EA 123.** 73. The appellant’s primary contention is that the trial court erred by failing to consider the totality of the evidence, specifically the appellant’s denial of signing both the Sale Agreement and the Rescission Agreement. 74. The appellant argued that these documents were forged, but he failed to report the alleged forgery to the police or call a document examiner to challenge the authenticity of the signatures. 75. The trial court found that the sale agreement satisfied the formal requirements of section 3(3) of the Law of Contract Act, as it was in writing, signed by all parties, and attested by witnesses. 76. For a suit to be brought upon a contract for the disposition of an interest in land, the agreement must be in writing and signed by the party to be charged. 77. In this case, the trial court rightly held that the appellant’s bare denial, without more, was insufficient to vitiate the documents. 78. The principle from **L'Estrange v. F. Graucob Ltd (supra),** as adopted in Kenyan jurisprudence, is that a party who signs a written agreement is bound by its terms in the absence of fraud, which was not established here. 79. Regarding the validity of the Rescission Agreement, the court correctly found that it was a separate contract which superseded the original sale agreement and allowed the respondents to pursue legal action in the event of default, as per clause 4 of the rescission agreement. 80. The appellant’s argument that the dispute should have been referred to arbitration is therefore without merit. 81. The Court of Appeal in **National Bank of Kenya Ltd v. Pipeplastic Samkolit (K) Ltd & Another (supra)** held that a court cannot re-write a contract between parties, and the parties are bound by the terms of their contract unless coercion, fraud, or undue influence are pleaded and proved. 82. On the issue of breach, the evidence showed that the appellant failed to refund the purchase price and legal costs within the stipulated 45 days, thereby breaching the rescission agreement. 83. The appellant’s argument that the respondents failed to prove he received the total amount is untenable. 84. The respondents’ chairman explained that payments totaling Kshs. 800,000 and Kshs. 500,000 were made to one Justus Mbinda Muema on the appellant’s instructions because the appellant had claimed to have bought the land from him and was completing the payment. 85. The appellant cannot now disavow his own instructions to divert payment to his own vendor. The respondents’ failure to sue Justus Mbinda Muema does not negate their claim against the appellant, as the payments were made on his explicit instructions. 86. The trial court correctly applied the doctrine of unjust enrichment, relying on **Samuel Kamau Macharia v. Kenya Commercial Bank Limited (supra),** finding that the appellant had been enriched at the respondents’ expense and it would be unjust to allow him to retain the benefit. 87. The trial court’s finding that the respondents proved their case on a balance of probabilities was sound. The appellant’s defence was a mere denial, and he failed to challenge the authenticity of the documents with any cogent evidence. 88. The trial court did not err in dismissing the appellant’s arguments regarding the respondents' lack of authority to sue, as the respondents exhibited minutes and a certificate of registration. 89. The award of interest at 12% from 14th April 2019 until payment in full was a proper exercise of the court’s discretion under section 26 of the Civil Procedure Act, given the absence of a specific interest rate in the agreement, as guided by the principles in **National Bank of Kenya Ltd v. Pipeplastic Samkolit (supra)** and **B.O.G. Tambach Teachers Training College v. Mary Kipchumba (supra).** 90. In conclusion, I find that the trial court’s judgment was well-founded and based on the evidence and the law. 91. The appeal is devoid of merit. It is hereby dismissed with costs to the respondents. 92. Orders to issue accordingly. **DATED, SIGNED AND DELIVERED AT NAIROBI THIS 25TH DAY OF JUNE 2026** **ASENATH N. ONGERI** **JUDGE** **In the presence of** Mr Kamanda for the Appellant Miss Mutuku holding brief for Mr Mutava for the Respondent Chrispin - Court Assistant