https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1109

Kirundi & another v Josvir Traders & Agencies Ltd & another (Civil Appeal 164 of 2023) [2026] KECA 1109 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KECA 1109 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal 164 of 2023 DK Musinga, M Ngugi & GV Odunga, JJA June 12, 2026 Between Geoffrey Chege Kirundi 1st Appellant Lucy Wamaitha Chege 2nd Appellant and Josvir Traders & Agencies Limited 1st Respondent Everton Coal Enterprises Limited 2nd Respondent (Being an Appeal against the Judgment of the Environment and Land Court of Kenya at Kajiado (C. Ochieng, J.) delivered on 20th May 2019 in ELC No. 73 0f 2017) Judgment 1.The appellants in this appeal, Geoffrey Chege Kirundi and Lucy Wamaitha Chege, are husband and wife. Sometime in September 2004, they, in their capacity as the beneficial interest holders in L.R No. 10090/23 Juja Thika Municipality measuring 50 acres or thereabouts (hereinafter “the suit property”), entered into an agreement for sale of the suit property with the 1st respondent. 2.At the time of the said transaction, the suit property was the subject of a dispute before the High Court at Nairobi, in Nai Civil Appeal No 164 of 2023 Page 1 of 68Succession Cause No. 3608 of 203 consolidated with Nairobi HCCC No. 1401 of 2004 and Misc. No. 1277 of 2004 (O.S.) (the succession cause). In that cause, the appellants’ interest in the suit property was being challenged by the beneficiaries of the estate of the late Walter Karanja, the previous owner. 3.The suit before the trial court was initiated by the 1st respondent against the appellants and the 2nd respondent, Everton Coal Enterprises Limited. In the suit it was averred: that in September 2004, the 1st appellant, acting for himself and on behalf of the 2nd appellant, approached the 1st respondent and offered to sell their said beneficial interest in the suit property to the 1st respondent; that the initial purchase price offered was Kshs.505,000 per acre, translating to a total purchase price of Kshs. 25,250,000; that a commitment fee of 10% of the purchase price, being Kshs. 2,500,000, was duly paid by the 1st respondent; that on 30th December 2008, the 1st appellant, acting for himself and for the 2nd appellant, informed the 1st respondent’s director that a favourable ruling in the succession cause was expected on 31st March 2009 and the 1st appellant enhanced the purchase price to Kshs.1,000,000 per acre, translating to a total of Kshs.50,000,000; that the 1st respondent accepted the enhanced purchase price and a formal sale agreement was duly executed by the 1st respondent and the appellants on 30th December 2008 (the sale agreement); that the terms of the sale agreement were, inter alia, that the 1st respondent would pay Kshs.12,500,000 on or before signing the sale agreement and the balance of Kshs.37,500,000 was payable before the expiry of 210 days from the date of the ruling in the succession cause; that on or about 31st March 2009, the appellants notified the 1st respondent about the outcome of the ruling, which was in the appellants’ favour, and they requested the 1st respondent to make a further payment pursuant to the sale agreement; that the 1st respondent duly paid to the appellants Kshs.10, 000,000 after which it was put into possession of the suit property; and that the appellants wrongfully and unlawfully breached the sale agreement by secretly transferring the suit property to the 2nd respondent, a limited liability company in which the 1st respondent claimed the 1st appellant had an interest. 4.In the plaint dated 20th May 2009, the 1st respondent sought the following reliefs: -a.A mandatory injunction to restrain the appellants from interring with the 1st respondent’s quiet possession of all that parcel of Land known as L R No. 10090/23.b.An order that the title issued in the 2nd respondent’s name be cancelled and the appellants do specifically perform the sale agreement by transferring the suit property to the 1st respondent or its nominees.c.In the alternative, the appellants do pay to the 1st respondent damages for deceit and fraud in the sum of Kshs.109, 500, 000 together with interest that would be outstanding at the time of trial calculated at the rate stipulated in the plaint.d.Punitive and aggravated general damages for deceite.Interest at the same rate until payment in fullf.Costs of the suit.g.Any other or alternative relief the Court would deem fit in the circumstances. 5.In their joint defence, the appellants pleaded: that it was the 1st respondent who approached them with an offer to purchase the suit property; that a meeting was held in the 1st appellant's chambers on 30th December 2009 between the 1st respondent and the 1st appellant to conclude the negotiations for the sale and purchase of the suit property and that all the terms of the transaction were reduced into writing in which the 1st respondent was to pay Kshs 12,500,000 on or before the execution of the sale agreement and that the balance of Kshs 37,500,000 was to be paid as stipulated in the sale agreement; that the additional Kshs.10,000,000 that was paid by the 1st respondent was part performance of an agreed oral variation of the completion date as the circumstances on the part of the appellants had changed; that the appellants did not breach the sale agreement as it was the 1st respondent which was unable to raise the balance of the purchase price; and that the 1st respondent acted in flagrant violation of the law by subdividing the suit premises and selling the sub plots with a view to raising the balance of the purchase price without the appellants’ consent and before taking conveyance documents from them, contrary to the terms of the contract. 6.According to the appellants, the possession given to the 1st respondent did not authorise it to violate the law by sub-dividing and putting on sale the suit property before it was conveyed to it and without complying with the provisions of the Physical Planning Act, Land Control Act, Survey Act and other laws. According to the appellants, the said violations by the 1st respondent caused them to lawfully rescind the sale as an impression was created to potential buyers, which was not the case, that the 1st respondent was the appellants’ agent, hence fundamentally breaching the contract. The appellants further pleaded that the sale agreement was rendered null and void and unenforceable in law following the expiry of the period for applying for the consent of the Land Control Board on 30th June 2009, hence the 1st respondent's claim was meritless and an abuse of the court process and ought to be struck out with costs. 7.The 2nd respondent, in its defence, averred that it was the registered owner of the suit property by virtue of a transfer to it by the appellants. According to it, it purchased the suit property without notice of the 1st respondent’s right over it, and that the 1st respondent’s claim lay against the appellants to refund the purchase price paid under the sale agreement. 8.In support of its case, the 1st respondent called four witnesses.PW1, John Kariuki, was a former court clerk in the firm of Kirundi & Co. Advocates. He relied on his statement in which he disclosed the relationship between the 1st appellant and the directors of the 2nd respondent. He was aware of the sale transaction between Joseph Njuguna (PW3), the 1st respondent’s director, and the 1st appellant for the purchase of the suit property in December 2008. He was the one who deposited the cheque of Kshs 10,000,000 issued by the 1st respondent to the appellants. He also disclosed that there was a Declaration of Trust signed between the 1st appellant and the directors of the 2nd respondent in respect of the suit property in which he noted that the suit property had been transferred to the 2nd respondent. He confirmed that he handed over a copy of the said Declaration to the investigators who were retained by PW3. 9.Joseph Kihari Macharia (PW2), an estate agent, relied on his statement as evidence in chief in which he stated: that in 2004 the 1st appellant was introduced to him by the 1st appellant’s manager as the vendor of the suit property which was acquired from the estate of the late Walter Karanja; that PW2 was recruited as an agent to sell the suit property; that a fellow agent introduced him to PW3 who was interested in purchasing the land; that he connected PW3 to the 1st appellant and after negotiations, the two parties agreed on the purchase price of Kshs 505,000 per acre; that PW3 agreed to deposit Kshs 2,500,000 and upon payment, was permitted to take possession of and to subdivide the suit property; that during further negotiations held on 24th December 2008, the 1st appellant and PW3 agreed on the new purchase price of Kshs 1,000,000 per acre, making the total purchase price to be Kshs 50,000,000, out of which PW3 was to pay Kshs 12,500,000 while awaiting the outcome of the pending succession cause; that the balance would be paid within 210 days from the date of that outcome; that in April 2009, the 1st appellant sent him to tell PW3 to pay more money in order to be permitted to take possession of the land and as a result, PW3 paid a further sum of Kshs 10,000,000, making a total deposit of Kshs 22,500,000; that the 1st appellant knew that PW3 was a land developer and was buying the land for subsequent subdivision into smaller portions and resale; and that after the subdivisions, the 1st appellant sent him on several occasions to inquire from PW3 how they could partner together in selling the subdivisions. 10.PW3, Joseph Ng’ang’a Njuguna, a director of the 1st respondent, relied on his witness statement in which he stated: that the 1st respondent was a land buying company dealing in the purchase of large tracts of land and dividing them into smaller affordable parcels with a view of reselling them to interested buyers; that in 2004, he was introduced to the 1st appellant by an estate agent and the 1st appellant informed him that together with his wife, the 2nd appellant, they were selling the suit property; that the appellants were made aware of the 1st respondent’s intention to purchase the suit property, sub-divide and resell the plots arising from the subdivisions; that the appellants informed him that the proprietor of the suit property passed away before he could effect transfer but following the filing of a suit by the appellants against the estate, a favourable ruling was expected; that the full purchase price was agreed at Kshs.25,250,000/= at the cost of Kshs.505,000/= per acre; that a formal agreement was to await progress in the said case; that by a letter dated 10th September 2004, the appellants requested the 1st respondent to pay a deposit of Kshs.2,500,000/= towards the purchase price which the 1st respondent paid on 15th September 2004; that towards the end of December 2008, the 1st appellant informed him that the succession cause had been heard and the ruling was set for 31st March 2009, and the 1st appellant asked him to increase the purchase price to Kshs.1,000,000/= per acre, making the total purchase price to be Kshs.50,000,000/=. 11.It was further averred: that after a lengthy discussion, the sale agreement was executed between the appellants and the 1st respondent in which it was agreed that the 1st respondent would pay the appellants the sum of Kshs.12,500,000/= on or before the signing of the agreement, after which the appellants would put the 1st respondent in possession; that pursuant to the sale agreement, the 1st respondent paid the appellants Kshs.10,000,000/= on signing of the sale agreement to make the total sum paid Kshs.12,500,000/= and a further Kshs.10,000,000/= after 31st March 2009 when the 1st respondent was put in possession of the suit property; and that the balance of Kshs.27,500,000/= was to be paid within 210 days; that after the 1st respondent went into possession, it surveyed the land, subdivided it into smaller parcels ready for sale and made access roads and other services at a cost in excess of Kshs12,000,000/=. 12.PW3 further stated: that while on site, he noticed a number of people who claimed to have been sent by the appellants as alternative purchasers, and was informed by the 1st respondent’s lawyers that the 1st appellant was, contrary to the terms of the sale agreement, demanding payment of the balance of the entire purchase price and was threatening to terminate the sale agreement if not paid; that on 15th May 2009, his lawyers received a letter dated 5th May 2009 which purported to be a Termination Notice; that via a letter dated 18th May 2009, he instructed the 1st respondent’s advocates to suitably respond to the said notice; that upon carrying out a search on the suit property, he learnt that the appellants had transferred it directly to themselves and thereafter to the 2nd respondent, a proxy company belonging to the 1st appellant. 13.Before the trial court, PW3 explained: that the appellants never transferred the land to the 1st respondent although the 1st respondent was ready to perform its part of the sale agreement; that the 1st respondent paid Kshs.22, 500,000/= to the 1st appellant and that the interest payable, in the event of a default, was 18% per annum as per the sale agreement, hence the 1st respondent was entitled to a sum of Kshs.730, 722,144/= as its total loss. 14.In cross-examination, PW3 stated that he did not know that the land was agricultural; that although the aim was to subdivide and sell the land, this was not captured in the sale agreement; that he did not know that the appellants were selling the land to repay a bank loan which they were under pressure to settle; that after the deposit of Kshs.12, 500,000/=, he paid a further sum of Kshs.10, 000,000/= after the 1st appellant insisted that he makes further payment before the 1st respondent could take possession of the land; and that he received notice of intention to cancel the sale agreement after he had marketed the land for sale, made roads on the land and told third parties about the title, which by then was in the name of the 1st appellant, and received commitments from third parties. 15.According to PW3, the consent of the Land Control Board was to be applied for later by the 1st appellant. Similarly, the consent to sub-divide the land was to be sought later. It was his evidence that a search at Ardhi House established that the 2nd respondent was a proxy of the appellants, although the Trust Deed showed that Patrick Ngugi and Mzee Hamisi were its directors. 16.PW4, Ducarieh Ochieng Kamidigo, an accountant, testified that PW3 approached him in 2012 with a request to conduct a financial analysis of the actual and opportunity cost of the transaction between the 1st respondent and the appellants up to 2012. In his evidence, captured in his exhibited financial analysis report dated 19th September 2012, the actual costs incurred by the 1st respondent with respect to the suit property, as at 2009, was Kshs.646,425,000/= while the opportunity/projected cost was Kshs 730,722,144/=. 17.PW4 stated in cross-examination, that, in preparing his report, he relied on purchase price, as disclosed in the sale agreement.According to him, 530 plots could be generated from the sub- division of the suit land, each valued at Kshs.320,000/=. 18.At the close of the plaintiff’s case, the 1st appellant, testifying as DW1, stated: that in 1991, he purchased the suit property, an agricultural land in Juja, Kiambu measuring 50 acres, from a Mr. Karanja; that the previous purchaser of the suit land sued the seller and that the dispute was concluded in 2004; that in 2004, PW2 introduced him to PW3 who was willing to buy the suit land; that he told PW3 that he could not sell him the land because there was a pending case in court but later on, he informed PW3 that the case had been concluded; that PW3 agreed to purchase the land at a price of Kshs.50 million; that as at the time of the sale of the suit property, he was trying to offset a bank loan, a fact he disclosed to PW3; and that the bank had given him timelines to pay off the debt but PW3 only managed to pay him Kshs.10, 000,000/= in addition to Kshs.2.5 million which he had been paid earlier on. 19.According to the 1st appellant, although the land had not been conveyed to the 1st respondent, the 1st respondent, claiming ownership thereof, took possession, sub-divided it into plots and sold the resulting plots to third parties, who deposited sums with the 1st respondent, thereby exposing the appellants to third party claims. While confirming that he gave to the 1st respondent possession of the land, it was his evidence that this was meant to fend off trespassers who were farming and squatting on the land, and that it did not permit the 1st respondent to survey the land, commence the subdivision and make roads thereon, as the 1st respondent did. As a result of the said actions, coupled with the failure to comply with the statutory requirements, the sale agreement was rescinded vide a notice dated 5th May 2009. 20.DW1 stated: that he was ready to and had offered to refund, which offer the 1st respondent declined to accept, the deposit of Kshs.22,500,000/=; that the Trust Deed produced by PW1 was forged as it was neither prepared in his office nor signed by him; that the 2nd respondent, to whom he sold the land for Kshs.100, 000,000/=, was not his proxy; and that they appeared before the Land Control Board whereby consent was granted and a conveyance was registered to transfer the land to the 2nd respondent. 21.In terms of the consideration for the sale, the 1st appellant explained that Dr Patrick Karanja Ngugi (DW2) owned 10% of the 2nd respondent while Kewango Electrical Ventures Ltd was owned by DW2 and his wife; that due to the inability of the appellants’ company, Usafi Services Ltd, to pay Kewango Electricals Ventures for items supplied by it, a debt swap was entered into in form of the Novation Agreement dated 18th May 2009 by which he offered the land to Kewango Electricals Ventures in full settlement of the debt. 22.According to the 1st appellant, liquidated damages claimed by the 1st respondent can only arise if there was a valid agreement, which is not the case; that it was the 1st respondent who breached the agreement when he subdivided the land and failed to pay the balance of the purchase price and that, in any event, the late Walter Karanja’s family appealed against the decision of the High Court in the succession cause subsequent to which the appellants’ title over the suit property was nullified. 23.In cross examination, the 1st appellant admitted that the agreement between him and the 1st respondent was subject to the Law Society Conditions of Sale, 1989, which required that a 21 days’ rescission notice be issued. According to him, the risk was to pass to the 1st respondent only after paying consideration. Before then, the 1st respondent could only exercise the right of possession and not ownership. He conceded that as at 4th May 2007, the 210 days agreed for payment of the balance of the purchase price had not lapsed but insisted that the 1st respondent had fundamentally breached the implied terms of the agreement; that the reason why he applied for the consent of the Land Control Board on 28th April 2009 was because they knew that PW3 was cheating them and would not comply with the terms of the sale agreement. He admitted that the transfer of the suit land to the 2nd respondent was done on 11th May 2009, while the consent of the Land Control Board was given on 5th May 2009, the same day he terminated the sale agreement with the 1st respondent. He insisted that the termination of the agreement was due to the abuse of possession of land by the 1st respondent by surveying, advertising, offering for sale of plots and receiving deposits of the purchase price for and on behalf of the vendor without express authority from him. 24.DW2, Patrick Karanja Ngugi, a director of the 2nd respondent, adopted the contents of his witness statement and stated: that while he signed the Novation Agreement, he had never seen the agreement between the 1st respondent and the appellants; that he had a long business relationship with the 1st appellant; that as an electrical contractor, he was contracted by the 1st appellant to undertake electrical installation in the 1st appellant’s Suraya’s House in Nairobi at a cost of Kshs.57,000,000/=, although his total costs for services rendered was Kshs.77,000,000/=; that the 1st appellant owed his company, Kewango Electrical Ventures Ltd, a lot of money, thus the Novation Agreement; that the Novation Agreement was purely a business transaction and was not a cover up for anything; that they started discussing the land with the 1st appellant in early May 2009 and that when he visited the land in the company of the 1st appellant, there was nothing specific on the land. 25.It was DW2’s evidence: that the application for the consent of the board was lodged on 28th April 2009 after he visited the suit land but prior to their agreement for sale; that as at 28th April 2009, he was not aware of any other agreement in respect of the suit land and he was not privy to the Declaration of Trust presented before the court, although it was indicated that the Declaration of Trust was witnessed by Ivy D. Wasike advocate, the same advocate who witnessed the sale agreement; that the Trust Deed he signed was different from the Trust Deed presented in court; and that he was in possession of the suit land and no order has been served upon him prohibiting him from trespassing thereon; and that he was not aware of any roads constructed by the 1st respondent on the suit property. 26.For her determination, the learned Judge identified the following issues:1)Whether there was a variation of the sale agreement dated 30th December 2008 between the 1st respondent and the appellants;2)Who between the 1st respondent and the appellants breached the sale agreement of 30th December 2008?3)Whether the suit property was transferred to the 2nd respondent fraudulently.4)Which appropriate orders should ensue? 27.In her judgment, the learned Judge found: that clause 2 of the agreement of 30th December 2008 was clear that the 1st respondent was to pay Kshs.12, 500,000/= on or before signing the sale agreement and the balance of Kshs.37, 500,000/= was payable on or before the expiry of 210 days from the date of the ruling in the succession cause; that the payment of an additional sum of 10,000,000/= by the 1st respondent was pursuant to the agreement of 30th December 2008 and not an oral agreement as submitted by the appellant; that on the authority of the case of Peter Mujunga Gathuru v Harun Osoro Nyambuki & another [2015] eKLR, any oral agreement, unless proven, purporting to vary the completion period contemplated in the written agreement, would have been a nullity; that since section 3(3) of the Law of Contract Act provides that an agreement for sale of land must be in writing, the oral agreement would have been null and void, and therefore unenforceable; that even before the expiry of the said 210 days stipulated in the sale agreement for payment of the balance of the purchase price, on 23rd April 2009, the 1st respondent paid the appellants Kshs.10, 000,000/= but upon receipt of the cheque, the 1st appellant demanded payment of the entire balance of the purchase price with a threat to terminate the contract if payment was not made by 30th April 2009; that that vide the letter dated 5th May 2009 titled “termination notice”, the appellants implemented their threat and purported to terminate the contract, based not on the grounds of non-payment of the balance but for breaching the agreement by sub-dividing the land, advertising the land for sale and receiving deposits from third parties; and that in light of the contents of the letter dated 24th April, 2009, the ground for termination was “a red herring”. 28.The learned Judge noted that the appellants and the 2nd respondent applied for the consent to transfer the suit property to the 2nd respondent on 28th April 2009, the same date the appellants’ advocates delivered the letter dated 24th April 2009 to the 1st respondent’s advocates demanding payment of the entire purchase price. She also took note of the fact that even as the appellants’ advocates were authoring the “termination notice” dated 5th May 2009, which was served on the 1st respondent’s advocates on 15th May 2009, the appellants and the 2nd respondent had already entered into a sale agreement on 5th May 2009, obtained the consent of the board to transfer the suit property to the 2nd respondent on 5th May, 2009 (the same day of the agreement) and transferred the suit property to the 2nd respondent on 11th May 2009. 29.The learned Judge concluded that the suit property had already been alienated to the 2nd respondent before the appellants informed the 1st respondent that they had terminated the sale and that the purported termination of the sale agreement went against clause 4 of the sale agreement which incorporated the Law Society Conditions of Sale (1989) Edition since the appellants failed to both give a Completion Notice of 21 days and to give the 1st respondent time to remedy any breach of the fundamental terms of the agreement, if at all. The learned Judge therefore found that the transfer of the suit property to the 2nd respondent on 11th May 2009 was deceitful and intended to defraud the 1st respondent and that the appellants breached the sale agreement of 30th December 2009 by issuing an illegal, null and void ‘termination notice’ dated 5th May 2009 and transferring the suit property to the 2nd respondent on 11th May 2009, rendering the sale of the suit property to the 2nd respondent not only fraudulent but also illegal, null and void. 30.In light of the evidence showing that the title issued to the appellants was, on 29th July 2016, nullified by the Court of Appeal in Nairobi Civil Appeal Number 172 of 2010 reverting the title to the suit property to the estate of the late Walter Karanja, the prayer for the nullification of the transfer of the suit property to the 2nd respondent had been overtaken by that decision. Therefore, the 1st respondent was only entitled to damages as against the appellants for breach of the sale agreement. The learned Judge cited clause 8 and 11 of the sale agreement, and entered judgment for the 1st respondent against the appellants jointly and severally in the sum of Kshs.22,500,000/= which was the amount payable to the 1st respondent, together with interest at the rate of eighteen (18%) per centum per annum compounded on monthly basis from the date when the suit was filed till payment in full; and for the 1st respondent’s costs of the suit to be paid by the appellants. 31.Aggrieved, the appellants moved to this Court to challenge the decision on some 39 grounds revolving around the issues: whether the learned Judge erred in finding that the appellants, and not the 1st respondent, breached the sale agreement and whether the award of damages and interests thereon was proper.We need not replicate the unnecessarily prolix grounds in this judgment. The 2nd respondent, on the other hand, filed a notice of cross-appeal dated 6th January 2025 in which it relied on 6 grounds and sought orders that:1.This Cross-Appeal be and is hereby allowed2.The judgement of the Environment and Land Court at Machakos (Hon, Justice O. A. Angote) dated 18th February 2022 in ELC No. 174 of 2018 (formerly Nairobi ELC No. 236 of 2009) be varied or reversed to the extent and in the manner that the learned Judge found under paragraphs 105-107 and 100 that inter alia ‘The sale of the suit property to the 3rd Defendant was not only fraudulent but also illegal, null and void.’3.Any such further relief this Honourable Court may deem fit and just to grant.4.Costs of this Cross-Appeal.” 32.We heard the appeal on the Court’s virtual platform on 27th January 2026 when learned counsel, Miss Mwangi, appeared for the appellants, learned counsel, Mr Dominic Njuguna Mbithi, appeared for the 1st respondent and learned counsel, Mr Edwin Musyoka, appeared for the 2nd respondent. Counsel relied on their written submissions which they briefly highlighted. 33.On behalf of the appellants, it was submitted: that the learned Judge erred in law and in fact in disregarding the blatant breach by the 1st respondent and failing to find that, by sub-dividing and offering portions of the suit property for sale to third parties, the 1st respondent had committed a repudiatory breach of the agreement dated 30th of December 2008, as a consequence of which the appellants were entitled to terminate the agreement; that although the 1st respondent’s evidence was that its aim was to sub-divide and sell the land, there was no term in the said sale agreement that allowed and or authorized the 1st respondent to sub-divide, advertise for sale, sell and receive proceeds from the sale before payment of the balance of purchase price and completion of the sale since the 1st respondent was only allowed to take possession as per the agreement; that the case of Collins v Ogango (Civil Appeal 427 of 2018) [2024] KECA 19 (KLR) (25 January 2024) (Judgment) is an authority for the proposition that there is no room for the insertion of a term in a written contract other than what is expressly stipulated; that the terms of the agreement were unambiguous and had the court given effect to them, it would have found that the 1st respondent's actions of sub-dividing and selling the suit property were a blatant breach of the agreement; and that the trial court erred in failing to hold that the 1st respondent had breached the express terms of the agreement for sale. 34.It was further contended by the appellants that the learned Judge erred in law by holding that the termination notice dated 5th May 2009 was illegal, null and void yet it was established that the 1st respondent fundamentally breached the sale agreement, entitling the appellants to repudiate the contract; that the case of Edward Mugambi v Jason Mathiu [2007] eKLR, is authority for the position that a fundamental breach of an agreement entitles the other party to either rescind the contract or to ignore the breach and seek the enforcement of the terms of the contract; that the said actions of the 1st respondent amounted to a fundamental breach of the agreement which discharged the contract; that the appellants having demanded that the 1st respondent remedy the breach, which the 1st respondent declined to do, the appellants properly proceeded to terminate the agreement through the termination notice dated 5th May 2009; that the trial court erred in law in requiring the appellants to issue a 21 days' notice as the agreement provided under clause 14 that time was of essence and therefore the appellants were not required to issue a completion notice; that on the authority of Dhanjal Investments Limited v Shabaha Investments Limited (Civil Appeal 80 of 2019) [2022] KECA 366 (KLR) (18 February 2022) (Judgment), no completion notice is required under condition 4(7) of the LSK Conditions of Sale where the agreement has made time of the essence; and that the finding by the trial court that the appellants did not give the 1st respondent time to remedy the breach was not factual since, by the letter dated 4th May 2009, the appellants demanded that the 1st respondent stops any further breach, but the 1st respondent declined to stop any further breach, necessitating the termination of the agreement. 35.The learned Judge was further faulted for holding that the 1st respondent was entitled to interest on the sum of KES.22,500,000.00 from the date of filing the suit in spite of the 1st respondent's breach and the resultant proper termination of the sale agreement; that the 1st respondent, by subdividing and selling the land without the appellants' consent, did not come to court with clean hands and was therefore not entitled to any equitable relief; that as held in the case of Nabro Properties Ltd v Sky Structures Ltd (2002) eKLR, no man shall take advantage of his own wrong hence the trial court, by awarding interest on the principal sum from the date of filing the suit, amounting to KES. 322,376,797.00, was tantamount to rewarding a party in breach and allowing it to benefit from its own wrongdoing; that the appellants, in their letter dated 5th May 2009, indicated that they would refund the principal sum, which the 1st respondent rejected; that the appellants, having acted in good faith, were entitled to rescind the contract and refund the principal sum without any interest; that the 14-year delay in the determination of the suit should not be visited on the appellants by being made to shoulder an excessive amount of interest; and that the delay caused by the trial court not only prejudiced the appellants but also resulted in a disproportionate increase in the interest payable, which could otherwise have been a negligible amount. 36.According to the appellants, the learned Judge erred in holding that the interest clause in the agreement for sale dated 30th December 2008 was applicable mutatis mutandis whereas no clause, sentence and or phrase was included by the parties in the sale agreement remotely or otherwise implying that the interest clause would be applicable in favour of the 1st respondent against the appellants; that the decision amounted to the court rewriting the terms of the contract between parties contrary to this Court’s holding in the case of Centurion Engineers & Builders Limited v Kenya Bureau of Standards (Civil Appeal E398 of 2021) [2023] KECA 1289 (KLR) (27 October 2023) (Judgment) that parties to contracts are bound by the terms and conditions thereof, and that it is not the business of courts to rewrite such contracts; that clause 11 of the sale agreement did not expressly state that the interest in clause 8 shall be applied mutatis mutandis to clause 11; that since the agreement was subject to the Law Society’s Conditions of Sale, in the absence of an express stipulation as to interest, the applicable interest under clause 11 was that stipulated by the Law Society Conditions of Sale; that in addition, clause 11 was to apply only in instances where the appellants were unable to transfer the property as a result of circumstances beyond their control, and not as a result of the lawful termination of the agreement by the appellants following the blatant breach of the sale agreement by the 1st respondent. 37.The appellants cited the case of Kenya Tourist Development Corporation v Sundowner Lodge Limited [2018] eKLR, to highlight on circumstances when an appellate court can interfere with exercise of the trial court's discretion and submitted that the trial court’s decision calls for this Court's interference as the court disregarded the fundamental breach of agreement by the 1st respondent, and wrongfully held that the appellants were required to issue a completion notice. Further, the trial court re- wrote the contract between parties on interest rates and proceeded to award unconscionable and oppressive interest to a party in breach, thus allowing the 1st respondent to benefit from its own wrongdoing. 38.The 2nd respondent submitted in support of the appeal and its cross appeal: that based on section 26 of the Land Registration Act, 2012, as applied by the Supreme Court in the case of Dina Management Limited v County Government of Mombasa & 5 Others [2023) eKLR, a certificate of title is only prima facie evidence of ownership, which can be cancelled if found to have been acquired by means of fraud, misrepresentation, illegality, or unprocedural means; that the learned Judge erred in law and fact by finding that the sale of the suit property to the 2nd respondent was fraudulent, illegal, null and void, without testing evidence relating to its sale, purchase and transfer from the appellants to the 2nd respondent; that on the authority of this Court’s decision in the case of Vijay Marjario v Nansingh, Madhusingh Darbar & another [2000] eKLR as read with sections 107 and 109 of the Evidence Act, the burden lies on the person alleging fraud or illegality to strictly prove it, the standard, as held in Koinange & 13 others v Charles Karuga Koinange [1986] KLR and the case of Kinyanjui Kamau v George Kamau [20151 eKLR, being higher than in the ordinary civil cases; that whereas the 1st respondent alleged fraud on the part of the appellants, it failed to substantiate the same against the 2nd respondent since the alleged breach and termination of the contract between the appellants and 1st respondent, does not amount to fraud on the 2nd respondent's part; that the 2nd respondent was a bona fide purchaser of the suit property who conducted due diligence by investigating the property and title and ensured that the appellants' title was valid; and that having failed to adduce sufficient evidence to prove the alleged fraud, the 1st respondent failed to prove his case on a balance of probabilities and the learned Judge erred in finding that the sale was fraudulent. 39.It was further submitted: that since the 1st respondent's interests in the suit property had not crystallized, the 2nd respondent’s title was not acquired through an illegal process; that the 2nd respondent’s title was protected under section 26(1) of the Land Registration Act, being a bona fide purchaser for value as was appreciated by the Court in Samuel Kamere v Lands Registrar, Kajiado (2015] eKLR in which the prerequisites for bona fide purchaser for value were set out; that the appellants' sale of the suit property to the 2nd respondent was valid despite being done during the termination of the agreement between the appellants and 1st respondent because the agreement had stood voidable as a result of the alleged breaches by the 1st respondent; and that the learned Judge's finding that the sale of the suit property to the 2nd respondent was fraudulent, illegal, null and void was an overreach because the 2nd respondent's purchase of the suit property was not intended to defraud the 1st respondent as the 2nd respondent was unaware of any contractual obligations between the appellants and the 1st respondent. 40.It was further contended: that the learned Judge simply inferred fraud from the fact that the suit property was sold by the appellants to the 2nd respondent when a 21 days' notice period to terminate the agreement between the appellants and the 1st respondent ought to have been running, which is not sufficiently water tight evidence to infer that the 2nd respondent was involved in any fraudulent acts; that therefore the learned Judge's finding was not supported by law and the applicable facts; that the learned Judge ought to have considered the circumstances surrounding the sale, purchase and transfer of the suit property to the 2nd respondent which circumstances would have assisted the court in making a finding whether there were any elements of fraud in the 2nd respondent's acquisition of the suit property; and that such circumstances include the fact that the 1st appellant was not associated with the 2nd respondent since the 1st appellant is not a director and/or shareholder of the 2nd respondent company, the alleged Declaration of Trust dated 13th May 2009 was an invalid and illegal document with legal deficiencies thus rendering it null, void and inadmissible and that the Novation Agreement dated 18th May 2009 constituted value and consideration for the sale and purchase of the suit property, L.R. No. 10090/23, between the appellants and the 2nd respondent. The Court was urged to take judicial notice of ELC Thika Case No. E089 of 2024 and Civil Appeal No. E467 of 2025 wherein the 2nd respondent, in light of the nullification of the title in Civil Appeal No. 172 of 2010, is seeking, inter alia, restitution for the purchase price paid for the suit property. It was therefore submitted that the cross appeal has merit and should be allowed by varying and reversing the learned Judge's findings in respect of the 2nd respondent's purchase of the suit property being fraudulent illegal, null and void. 41.The 2nd respondent contended: that despite the trial court’s finding that monthly compounded interest is what is otherwise known as 'interest on interest', the court did not address the unconscionability of the clause on interest in the agreement given the circumstances; that on this Court’s authority in Kanwal Sarjit Singh Dhiman v Keshavji Jivraj Shah [2025] KECA 1264 eKLR, while the general rule requires courts to refrain from re-writing contracts solely on the basis that they are "bad bargains", courts cannot enforce unconscionable contracts that are so unfair or one-sided that enforcing the terms of such contracts would offend the sense of justice; that the circumstances surrounding the execution of the sale agreement were procedurally and substantively unconscionable given that the appellants sold a beneficial interest of a title not in their name under undue pressure to settle a loan with a Bank and the existence of a clear imbalance in knowledge on the 1st respondent's part and uncertainty by both parties as regards the outcome of Succession Cause No. 3608 of 2003 which vested the suit property in the appellants; that the interest rate applied to the agreement was commercially unreasonable, oppressive and unconscionable; that the learned Judge ought to have considered the parties wishes under clause 4 of the sale agreement and incorporated the Law Society Conditions for Sale and applied the interest rate provided therein to commence from the judgment date; that by granting the orders on interest, the learned Judge unjustly enriched the 1st respondent; and that this Court should set aside the second order so as to ensure that the appellants do not suffer a grave miscarriage of justice. 42.We were thus urged to allow the cross appeal dated 6th January 2025. 43.Opposing the appeal and the cross appeal, the 1st respondent’s submissions were: that contrary to rule 107 of the Court of Appeal Rules, the grounds argued in the appellants submissions dated 30th January 2025 are different from those in the Memorandum of Appeal, hence the submissions ought to be disallowed; that the judgment rendered by the trial court was well considered and sound in the circumstances of this case and should be upheld; that since the cause of action was a contract of sale of land which had been reduced into writing, this court stated in the case of National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd [2001] KLR 112 that a court of law cannot rewrite a contract between the parties who are bound by their contract unless coercion, fraud or undue influence are pleaded and proved; that clause 7 of the sale agreement clearly stated that upon payment of Kenya Shillings Twelve Million, Five Hundred Thousand (Kshs.12,500,000) the appellants were to deliver to the 1st respondent vacant possession of the suit property on the date of favourable ruling in the succession cause and that the risk of the property was to pass on that date; that while the agreement did not have an interpretation section that would have defined vacant possession, vacant possession is described by Lord Green in the case of Cumberland Consolidated Holdings Ltd v Ireland (1946) KB 264 at 270 as the right to actual unimpeded physical enjoyment, which description has also been adopted in our jurisdiction in the persuasive case of Gitonga Wambugu Kariuki & Others v Eliud Timothy Mwamunga [2018] eKLR; and that from the foregoing, it is quite clear that the appellant did not in any way restrict the activities that the respondent would undertake in the land. 44.It was submitted, in addition: that the intention of the vendor is further stated on the last line of clause 7 where it was agreed that "the risk on the property shall pass on the date of the ruling"; that passing of the risk in a legal context means the point at which the responsibility for potential loss or damage to goods shifts to the buyer regardless whether ownership had passed; that while this is a term that is often invoked in reference to sale of goods, especially on the issue of merchantability and fitness for purpose and risk usually follows possession of land, it can be invoked in a situation where the purchaser takes early occupation before registration of the conveyance, like in the present case; that the parties did not intend the buyer to be restricted in enjoyment of the land after possession, hence the claim that the purchaser had abused possession is not borne out by the terms of the contract; that the alleged reason for granting possession as being to fend off trespassers, was not contained in the sale agreement and in light of the evidence of PW2 that the 1st appellant gave him a letter allowing the buyer to get into possession and sub-divide it, it is quite clear that the agreement did not provide any restriction of right of possession; that the learned trial judge was right to find, as he did, that the allegation by the appellant that the 1st respondent had breached the agreement by sub-diving the land and offering the plots for sale was a mere red herring; and that on the basis of the holding in the case of Collins v Ogango (supra), courts cannot re-write the contract for parties nor can they imply terms that were not a part of the contract. 45.It was the 1st respondent’s understanding that clause 14 of the agreement, which provided that time was of the essence of the contract, meant that all the parties were to perform their obligations within the time stipulated in the agreement. If the parties failed to do so, then the requisite notice under the Law Society Conditions of Sale [1989 Edition] would be given. In the 1st respondent’s view, the logical interpretation of the agreement as read with the Law Society Conditions of Sale (1989 Edition) was that payment was to be done within 210 days from 31st March 2009, time being of the essence, and in the event that the parties would depart from this position, they would still be obligated to give the 21 days’ rescission notice provided for by the Law Society Conditions of Sale. In this case however, by a letter dated 24th April 2008 (sic) which was hand delivered to the 1st respondent’s advocates on 28th April 2009, the appellant threatened to terminate the agreement if the full outstanding balance of Kshs.38,500,000/= was not paid on or before 30th April 2009 which was less than 30 days from 31st March 2009. By then, the 1st respondent still had more than 180 days before they could be taken to have breached the payment clause. 46.In the 1st respondent’s submissions, even supposing the payment was due, the notice given by the appellants was 2 days’ notice going by the date of delivery of the letter and 6 days if one was to take the date of writing of the letter as the date of notice, and was therefore not in compliance with either the payment period in the agreement or the Law Society Conditions of Sale [1989 Edition]. Contrary to the letter of 5th May 2009 titled ‘Termination Notice’, the sale agreement did not provide for immediate termination, hence the notice was not under the terms of the agreement. In view of that fact, it was submitted that the trial court was justified in finding that the termination notice was illegal, null and void, which illegality was compounded by the appellant's transfer of the property to the 2nd respondent on 11th May 2009, barely a week after the purported recission. As the purported termination notice shows on its face, the appellant's served it on 15th of May 2009, which was 4 days after they had already alienated the property, such machinations could not have been a lawful exercise of the vendor's rights under the terms of the contract. 47.Regarding the award of interest, the 1st respondent submitted: that the party in breach was the appellants, not the 1st respondent, and the appellants’ alleged offer to return the purchase price was a device to complete the breach; that other than the statement that the appellants would, under a separate cover, refund the purchase price, no payment was made; that if the appellants were serious about their intention to refund the money, nothing would have been easier than to deposit the money in court as envisaged by Order 27 of the Civil Procedure Rules; that even where money had been paid into court, the payment is not a ground for denying the plaintiff interest; and that without the tender of the principal sum, the appellants have no sound basis for stating that they could pocket the respondent's money, use it to pay their bank loan, and then claim that the 1st respondent, who has been denied the investment value of their money, should not be paid interest. 48.Regarding the argument that the Land Control Act provides for refund of the purchase price without interest, it was submitted: that the position only applies where the sale is defeated by the statute but even then, a party would still be entitled to be paid interest from the time of filing suit just like any other claim for money; that in this case, the sale was not defeated by statute but by breach before the period for application for the consent of the Land Control Board had lapsed, hence the terms of the Land Control Act did not apply; and that at any rate, the agreement had not been stated to be subject to the Land Control Act as the land is situated in Thika Municipality. 49.Regarding the holding that the interest clause in the agreement for sale applied mutatis mutandis to the money refundable by the vendor just as for the money payable by the buyer, it was submitted: that there were two provisions in the agreement that talked about interest; that clause 8 provided a penalty that would be levied on the purchaser if it were unable to pay the purchase price by the due date, while a penalty for the vendor’s breach was provided in clause 11; that as held in Euromec International Limited v Shadong Power Engineering Company Ltd KEHC 93 KLR, clauses in a contract have to be construed as a whole and cannot be looked at and interpreted in isolation; that the meaning of the clauses were clear to the parties and to the court, and the trial Judge did not err in interpreting the contract in accordance with the parties’ intentions; that the applicable interest rate was the same for the vendor (appellants) and purchaser (the 1st respondent); and that in view of the foregoing, the trial Judge’s finding on the applicable interest rate cannot be faulted. 50.We were urged to find that the trial court's judgment was correct in both fact and law, and to dismiss the appeal with costs. 51.Having considered the grounds raised in this appeal as well as the submissions of counsel, it is our view that the issues for our determination are:(a)Whether the submissions made are in sync with the grounds of appeal.(b)Whether the learned Judge was right in finding that it was the appellants who breached the sale agreement dated 30th December 2008.(c)Whether the learned Judge was right in finding that the sale of the suit property by the appellants to the 2nd respondent was fraudulent, null and void.(d)Whether the interest rate imposed by the learned Judge was proper.(e)Who should bear the costs of the appeal? 52.In determining these issues, we must, at the back of our minds, be alive to the fact that we are sitting in this matter as a first appellate court. Our jurisdiction, in that capacity, encompasses a reconsideration and re-evaluation of the evidence on record and drawing our own conclusions, but in doing so, we must be cautious, as we neither saw nor heard the witnesses testify, and must give due allowance for this. While we must accord due deference to the findings of fact by the trial court, should we be satisfied that the findings were based on no evidence, on a misapprehension of the evidence, or on wrong principles, we are entitled to interfere with such findings. (see Selle v Associated Motor Boat Co. Ltd [1968] EA 123 and Jabane v Olenja [1986] KLR 661). 53.Regarding the issue whether the submissions made are in sync with the grounds of appeal, it is clear that the substance of the appellants’ submissions is that the learned Judge erred in finding that they were the ones who breached the sale agreement dated 30th December 2008 as opposed to the 1st respondent and that the learned Judge’s decision to impose the rate of interest in terms of clause 8 and 11 of the sale agreement was contrary to the terms of the sale agreement. We agree that the rather unnecessarily prolix grounds of appeal raised a number of grounds some of which were not addressed in the submissions, such as the admissibility of the Trust Deed. In our view, where a party raises grounds of appeal in the memorandum of appeal and eventually does not address them either in the submissions or orally before the Court, the same ought to be deemed as abandoned, which is the position we adopt with regard to grounds 1 to 17 and 29 to 37 which were not specifically addressed before us. 54.Having said that, we note that some of the grounds in the memorandum of appeal were addressed by the parties. These include: whether the learned Judge erred in holding that interest clause in the agreement for sale dated 30th December 2008 was applicable mutatis mutandi when that clause was not included by the parties as applicable in favour of the 1st respondent as against the appellants; whether the learned Judge erred in failing to find that by subdividing and offering for sale portions of the suit property to third parties, the 1st respondent committed a repudiatory breach of the sale agreement entitling the appellants to terminate the same without being liable to the 1st respondent; and whether the learned Judge erred in holding that the termination notice dated 5th May 2009 and the sale of the suit property to the 2nd respondent was fraudulent, illegal, null and void. We are not bound to address the issues raised in these grounds. 55.Did the learned Judge err when she found that it was the appellants who breached the sale agreement dated 30th December 2008? In Collins v Ogango (supra), a decision relied upon by both the appellants and the 1st respondent, this Court expressed itself as hereunder: -“There is no doubt that there was an agreement for sale. Indeed, all the parties concede to this fact. We wish, however, to address the issue of breach of agreement. Black's Law Dictionary, 9th Edition, at Page 213, defines a breach of Contract as: "a violation of a contractual obligation by failing to perform one's own promise, by repudiating it, or by interfering with another party's performance. A breach may be one by non- performance or by repudiation or by both...It is trite law that courts cannot re-write contracts for parties, neither can they imply terms that were not part of the contract. In the case of Rufale vs. Umon Manufacturing Co. (Ramsboltom) (1918) L.R 1KB 592, Scrutton L.J. held as follows:‘The first thing is to see what the parties have expressed in the contract and then an implied term is not to be added because the court thinks it would have been reasonable to have inserted it in the contract.’Equally, in the case of Attorney General of Belize et al vs. Belize Telecom Ltd & Another (2009), IWLR 1980 at page 1993, citing Lord Person in Trollope Colls Ltd vs. Northwest Metropolitan Regional Hospital Board (1973) I WLR 601 at 609, the court held as follows:‘The court does not make a contract for the parties. The court will not even improve the contract which the parties have made for themselves. If the express terms are perfectly clear and [free] from ambiguity, there is no choice to be made between different meanings. The clear terms must be applied even if the court thinks some other terms could have been more suitable.’Based on the above decisions and the summarized facts of the case, we are in no doubt that there was breach of the agreement. The question is who was in breach? On the basis of the record, we are satisfied, just like the trial court, that it was the appellant who breached the contractual terms and purported to amend the terms therein to suit herself." 56.It is agreed that the terms of the contract between the appellants and the 1st respondent were contained in the sale agreement of 30th December 2008. Clause 2 of the said agreement provided, inter alia, as follows:i)The Purchaser shall on or before the execution of this Agreement pay to the Vendors Advocates Kenya Shillings Twelve Million Five Hundred Thousand only (12,500,000/=) being part of the Purchase Price as Deposit by a Banker’s cheque in favour of the Vendors Advocates (receipt of which sum the Vendors hereby acknowledge).ii)The remaining balance of the Purchase Price being the sum of Kenya Shillings Thirty Seven Million Five Hundred Thousand only (Kshs 37,500,000/=) shall be payable on or before the expiry of Two Hundred and Ten (210) days from the date of the Ruling in High Court Civil Case No. 3398 of 1988 as consolidated with High Court Civil Case Number 1401 of 2004 (O.S) and High Court Miscellaneous Application Number 1277 of 2004 (O.S) by a Bankers Cheque in favour of the Vendors Advocates. 57.It is agreed by the parties that the ruling referred to in the above clause was delivered on 31st March 2009. Going by the said agreement, the balance was due not later than 29th July 2009. It is also not in doubt that before the expiry of the said 210 days, the 1st respondent paid to the appellants a further sum of Kshs.10,000,000/= making the total deposit paid before the lapse of the 210 days Kshs.22,500,000/=. The appellants, however alleged that the said Kshs.10,000,000/= was paid as a result of an oral variation of the sale agreement by which the 1st respondent agreed to pay the entire purchase price by end of April 2009. No document was, however, produced to support this alleged variation. This Court, addressing itself to the effect of an alleged variation of a written contract by an oral stipulation, held in Peter Mujunga Gathuru vs Harun Osoro Nyambuki & another [2015] eKLR that:“As stated earlier on in this judgment, that clause was never modified or varied subsequently in writing. The claim that there was an oral agreement varying this amount later flies in the face of Sections 97 and 98 of the Evidence Act…The alleged oral agreement does not fall within the provisos under Section 98 and is outrightly disallowed under Proviso (iv) of the said provision…In this case, the oral agreement was never proved. Secondly, pursuant to Section 3(3) of the Law of Contract Act, the agreement for sale of land is required to be in writing.” 58.In light of the clear pronouncement by this Court in the above case, we have no reason to fault the learned Judge’s holding that:“Just as was held by the Court of Appeal in the above decision, the alleged oral agreement varying the completion period provided for in the sale agreement of 30th December, 2008 does not fall within the provisos of Section 98 of the Evidence Act, and is out rightly disallowed under Proviso (iv) of the said provision which provides that the existence of any distinct subsequent oral agreement to rescind or modify any contract, grant or deposition of property may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing. In this case, the oral agreement to vary the completion period was never proved. Secondly, even if the same had been proved, pursuant to Section 3(3) of the Law of Contract Act which requires the agreement for sale of land to be in writing, the oral agreement would have been null and void, and therefore un enforceable. The Agreement executed on 30th December 2008 between the Plaintiff and the 1st and 2nd Defendants was the culmination of intents and discussions that had started way back in September 2004. The terms of payment as per Clause 2 (i) and (ii) of the agreement were that the Plaintiff was to pay Kshs. 12,500,000 on or before the signing of the sale agreement, which it did, the balance of Kshs. 37,500,000 was payable on or before the expiry of 210 days from the date of the Ruling in the HCCC No.3398 of 1988. That term of the sale agreement was never varied.” 59.Notwithstanding the clear terms as to when the balance of the purchase price was due, the appellants, upon receipt of the cheque for Kshs 10,000,000 on 24th April 2009, wrote a letter the same day to the 1st respondent demanding payment of the entire balance of the purchase price by 30th April 2009 in default of which the appellants would terminate the contract. This was clearly a baseless threat since the payment of the purchase price was not due on that date. The 1st respondent, in response, rightfully, pointed out that the balance was not due and by its letter dated 4th May 2009, intimated that it was willing to secure a facility to cover the balance if the appellants were ready to immediately transfer the suit property. 60.By their letter dated 4th May 2009, the appellants took issue with the fact that the 1st respondent had proceeded to advertise and offer for sale the subplots arising from the suit property to third parties and was putting up roads within the suit property which amounted to a fundamental breach of the sale agreement. By that letter, the appellants demanded that the 1st respondent forthwith desist from giving “any impression or portray itself as an agent” of the appellants in absence of agency contract from the appellants. The following day, 5th May 2009, the appellants drafted the termination notice which was not received by the 1st respondent’s advocates till 15th May 2009. The termination was based on the same grounds alluded to in the letter of 4th May 2009 as opposed to non-payment of the balance of the purchase price. On the same day of the termination notice, an agreement was entered into between the appellant’s and the 2nd respondent for the sale of the suit property to the 2nd respondent. Before then, on 28th April 2009, an application for consent of the Land Control Board was made, and the consent was issued on 5th May 2009. Asked why the application for consent was made before termination, the 1st appellant, in cross examination retorted that they knew that the 1st respondent was not going to comply with the terms of the letter dated 4th May 2009. There is no way the appellants expected the 1st respondent to comply with the terms of a letter which was yet to be received by the 1st respondent. The fact that the application for Land Control Board’s consent was sought before the appellants ensured that the 1st respondent had received the termination notice is a clear indication that the appellants did not intend to see the agreement through to its conclusion. The termination notice was simply meant to justify the appellants’ intention not to meet their side of the bargain. The grounds relied upon in terminating the sale agreement were, therefore, rightfully described as a “red herring”” by the learned judge. 61.Apart from the foregoing, clause 4 of the sale agreement stated that:“This agreement is subject to law Society of Kenya Conditions of Sale (1989 Edition) in so far as the same are not inconsistent with the terms and conditions contained herein.” 62.It is clear, and the appellants did not dispute the fact that they never complied with the terms of the Law Society Conditions of Sale (1989) Edition under which the appellants were required to give the 1st respondent a Completion Notice of 21 days within which to remedy any breach of the fundamental terms of the agreement, if at all. The appellants, however, contend that because the agreement provided under clause 14 that time was of the essence, on the authority of Dhanjal Investments Limited v Shabana Investments Limited (supra) they were not required to issue a completion notice. It is true that clause 14 of the sale agreement made time of the essence of the contract.However, as we have found above, the 1st respondent was within time in complying with its side of the contract. In any case the basis upon which the contract was terminated was not due to the failure to comply with the timelines in the sale agreement but alleged violation of the agreement by the 1st respondent in subdividing the suit property and advertising the subdivisions for sale. In those circumstances, the appellants were under a duty to comply with the terms of the Law Society Conditions of Sale, 1989 and to give the 21 days’ completion notice to the 1st respondent before they could lawfully terminate the agreement for sale. The letter dated 4th May 2009 cannot amount to a completion notice since it did not give the 21-day notice required and, in any case, it was inconsequential since, by then, the appellants had already applied for the Land Control Board’s Consent on 28th April 2009 to transfer the suit property to the 2nd respondent, a transfer which was effected on 11th May 2009, four days before the termination notice was received by the 1st respondent. 63.Just as the learned Judge, we find that the appellants were the ones who breached the terms of the sale agreement. It is clear that along the way, they changed their minds about the whole transactions and were looking for a way out. Unfortunately, the route they chose was not legally available to them. 64.The next issue for our determination is whether the learned Judge was right in finding that the sale of the suit property by the appellants to the 2nd respondent was fraudulent, null and void. In her judgment, the learned Judge expressed herself as hereunder:“Going by the date of the application of the consent of the land control board and the date that the ‘termination notice’ was served on the Plaintiff’s advocates, it is safe to conclude that the suit property had already been alienated to the 3rd Defendant before the 1st and 2nd Defendants informed the Plaintiff that they had terminated the sale…That being the case, it is the finding of this court that the transfer of the suit property to the 3rd Defendant on 11th May, 2009 was deceitful and intended to defraud the Plaintiff. I say so because the 1st and 2nd Defendants vide their letter dated 4th May 2009 complained about the subdivision of the suit property by the Plaintiff when they had already applied for the consent at the Ruiru Land Control Board to transfer the land, which consent was issued on 5th May 2009, which is the same day the Defendants entered into the sale agreement in respect of the suit property with the 3rd Defendant…The 1st and 2nd Defendants breached the sale agreement of 30th December, 2009 by issuing an illegal, null and void ‘termination notice’ dated 5th May, 2009 and transferring the suit property to the 3rd Defendant on 11th May, 2009. The sale of the suit property to the 3rd Defendant was not only fraudulent but also illegal, null and void.” 65.In its submissions, the 2nd respondent, contended, inter alia, that it was not seeking to overturn the whole decision, but was only seeking to set aside the prejudicial findings which, if left undisturbed, would compromise the ongoing cases which it identified as ELC No. E089 of 2024 and Civil Appeal No. E467 of 2025. If we understand the 2nd respondent’s position, its main concern is that the findings that the sale of the suit property was as a result of fraud is likely to prejudice the said pending cases. The 2nd respondent would like the Court to believe that it was an innocent purchaser without notice with no knowledge of the transaction between the appellants and the 1st respondent and the breach thereof. That would have been the case had it not been for the fact that while the agreement for sale between the appellant and the 2nd respondent is dated 5th May 2009, from the Letter of Consent dated 5th May 2009, the application for consent was dated 28th April 2009. Neither the appellants nor the 2nd respondent explained this very glaring irregularity. In the absence of any explanation, it can only be concluded that the transaction between the appellants and the 2nd respondent was meant to defraud the 1st respondent. As was held in Katende v Haridas and Company Limited [2008] 2 EA 173“Fraud can be participatory which means the party participates in fraudulent dealings. However, fraud can be imputed on a person, that is when he or she was aware of the fraud and condoned it, or benefited from it or used it to deprive another person of his rights. In short all those who actually participate in the fraudulent transaction and who had knowledge of it are privy and have notice of fraud.” 66.From the conduct of the 2nd respondent, the reasonable conclusion is that it intended to benefit from the fraud perpetrated by the appellants on the 1st respondent and hence the 2nd respondent’s transaction was tainted with fraud. In determining whether or not fraud is proved, the court is entitled to rely on the entire record, as was appreciated in Arthi Highway Developers Limited v West End Butchery Limited & 6 others (2015) eKLR, where this Court expressed itself as follows:“The trial court was able to decide on the issue of fraud on the basis of the entire evidence on record and it is our view that the objection raised at the tail end of the trial was of little moment. There was no prejudice caused to any party. It should not be forgotten that the fraud committed in this matter was not an event but a process starting with the change of particulars of West End up to the time it was stopped by the judgement of the court.” 67.The 2nd respondent’s submissions which were geared towards exonerating the appellants from being subjected to payment of interest further raises doubt as to whether the 2nd respondent was simply defending its interests and had nothing to do with the appellants’ culpability. We find no basis for faulting the learned Judge’s holding that “the sale of the suit property to the 3rd Defendant was not only fraudulent but also illegal, null and void”. 68.The next issue for our determination is whether the interest rate imposed by the learned Judge was proper. It is clear that the basis for imposition of the interest rate was the trial court’s application of clauses 8 and 11 of the sale agreement. Clause 8 stated that:“All monies payable by the Purchaser hereunder whether on account of the purchase price or otherwise shall, without prejudice to all other rights and remedies of the vendor hereunder, carry interest at the rate of Eighteen (18%) per centum per annum compounded on monthly rates or such rate that may be solely determined by the vendors from the date of expiry of 210 days from the date of Ruling of the High Court Succession Cause Number 3608 as consolidated until the date of actual payment 69.Clause 11, on the other hand, stipulated that:In the event the Vendors shall be unable to successfully transfer the property to the Purchaser as a result of circumstances beyond their control, the Vendors shall in lieu of the property herein, refund the purchase price already paid and interest calculated as per clauses hereinabove together with reasonable expenses incurred. 70.It is clear that there was no specific clause in the sale agreement dealing with payment of interest by the appellants in the event that they breached the terms pf the agreement. The learned Judge, appreciating this gap when she held that:“The reading of clause 11 of the agreement shows that the interest payable by the Plaintiff in the event it breaches the agreement was to apply mutatis mutandis to the 1st and 2nd Defendants, that is eighteen (18%) per centum per annum compounded on monthly rates.” 71.From their submissions, all the parties appreciated this Court’s position in several decisions that the Court has no power to rewrite contracts for parties. In Husamuddin Gulamhussein Pothiwalla Administrator, Trustee and Executor of The Estate of Gulamhussein Ebrahim Pothiwalla v Kidogo Basi Housing Corporative Society Limited and 31 Others [2006] KECA 158 (KLR) this Court held that:“A court of law cannot re-write a contract between the parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded and proved. There was not the remotest suggestion of coercion, fraud or undue influence in regard to the terms of the charge. It is clear beyond peradventure that save for those special cases where equity might be prepared to relieve a party from a bad bargain, it is ordinarily no part of equity’s function to allow a party to escape from a bad bargain.” 72.In this case, while the appellants secured their interests in the event that the 1st respondent failed to meet its side of the bargain, there was no similar protection to cover the circumstances that unfolded in this case where the appellants breached the contract. Clause 11 contemplated a situation where the appellants were unable to successfully transfer the property to the 1st respondent, as a result of circumstances beyond the appellants’ control, in which case the appellants would, in lieu of the property, refund the purchase price already paid and interest calculated as per clauses in the agreement. Even then, no provision was made to specifically deal with interests in that eventually. In the absence of a specific clause setting out the rate of interest to deal with such a scenario, we agree that the terms of the Law Society Conditions of Sale, which were to form part of the contract, applied. However, those conditions would not apply where the appellants deliberately and deviously avoided to fulfil their obligations under the contract and instead unlawfully purported to terminate the agreement for sale. It is true that the suit property became unavailable for sale when this Court reverted the suit property to the estate of Walter Karanja, but that was not the reason for the alleged termination of the agreement for sale by the appellants. In these circumstances, we find that since the 1st respondent was entitled to interest in the event that the appellants were unable to successfully transfer the property to the 1st respondent arising from circumstances beyond the appellants’ control, in which event the rate of interest provided under the Law Society Conditions of Sale would apply, in this case where the appellants’ conduct was worse than the one contemplated in clause 11 of the agreement, the learned Judge was entitled to invoke clause 8 of the sale agreement mutatis mutandis where the breach was by the appellants. It cannot be that the appellants were liable to pay interest where the failure to successfully transfer the property to the 1st respondent arose from circumstances beyond the appellants’ control, yet where the appellants deliberately breached the sale agreement, they ought not to be liable to pay interest. We, accordingly, see no reason to depart from the learned Judge’s findings that clause 8 applied to both the appellants and the 1st respondent when either of them was in default. 73.As the 1st respondent was the successful party, it was entitled to costs. 74.We accordingly, find no merit in this appeal and the cross appeal, which we hereby dismiss with costs to the 1st respondent, to be borne by the appellants. DATED AND DELIVERED AT NAIROBI THIS 12TH DAY OF JUNE 2026.D. K. MUSINGA…………………………JUDGE OF APPEALMUMBI NGUGI…………………………JUDGE OF APPEALG.V. ODUNGA…………………………JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.