Kuria v Kihuria (Civil Appeal E035 of 2021) [2026] KECA 1582 (KLR) (31 July 2026) (Judgment)

Kuria v Kihuria (Civil Appeal E035 of 2021) [2026] KECA 1582 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1582 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Civil Appeal E035 of 2021 S ole Kantai, M Ngugi & LA Achode, JJA July 31, 2026 Between Luke N Kuria Appellant and Ndichu Kihuria Respondent (Being an appeal from the judgment and decree of the High Court of Kenya at Kerugoya (Gitari J.), dated 20th February 2020 in HCC Appeal No. 3 of 2017) Judgment 1.The undisputed facts of this appeal are that by a sale agreement dated 22nd November, 2010, Ndichu Kihuria the respondent, agreed to sell, and Luke N. Kuria, the appellant, agreed to purchase a tractor registration No. KBB 645A, at a purchase price of Kshs.1.7 million. It was further agreed that any party in breach of the agreement was to pay 20% of the purchase price in damages. 2.The appellant paid an initial deposit of Kshs. 900,000, and took immediate possession of the tractor. The balance of Kshs.800,000, was to be paid within three months, in one instalment of Kshs.300,000, and two instalments of Ksh.250,000 respectively. The appellant failed to pay the outstanding balance within the agreed period. 3.Consequently, the parties renegotiated the contract, entering into a supplementary agreement dated 18th January, 2011, in which the appellant would pay Kshs.1,206,000, being the balance together with interest and penalties, in instalments of Kshs.120,261 per month. Pursuant to the supplementary agreement, the appellant made several payments directly into the respondent’s account at Consolidated Bank, Nyeri Branch amounting to Kshs.636,000. In total therefore, the appellant paid Kshs.1,536,000 to the respondent. 4.Meanwhile, unknown to the appellant, the respondent took a loan of Ksh1.2 million from Consolidated Bank using the tractor as security. His plan was to service the loan by the monthly instalments of Kshs.120,261.20 the appellant was expected to deposit into his bank account as agreed. When the appellant defaulted in his payments, the respondent fell into arrears with his loan and the bank repossessed the tractor and put it up for sale. Subsequently, the bank allowed the respondent to sell the tractor by private treaty for Kshs.1,400,000. He however, did not refund the Kshs.1,536,000, received from the appellant. 5.Thereafter, the appellant sent to the respondent a demand notice for Kshs.2,186,000, being the sum he paid to the respondent together with interest and the cost of repairs done on the tractor. This prompted the respondent to file a case by way of a plaint, dated 10th December, 2015, in the Senior Principal Magistrate’s Court at Wang’uru, seeking a declaration that he did not owe the appellant any money arising from the two sale agreements. 6.In response, the appellant filed a statement of defence and counter claim dated 28th December, 2015. He admitted the facts of the agreement and what transpired as set out above, but averred that it was the respondent who breached the terms of the agreement by using the tractor as security for a loan without the appellant’s knowledge or consent. He sought to recover the monies he paid to the respondent, namely the deposit of Kshs.900,000, and the further payments totaling Kshs.636,000, together with legal fees and contractual damages amounting to 20% of the purchase price. He also prayed for reimbursement of repair and improvement costs incurred on the tractor, asserting that the respondent’s breach occasioned the loss of the tractor and entitled the appellant to compensation under the terms of the parties’ agreements and the applicable principles of contract law. 7.Two witnesses testified for the respondent while one witness testified for the appellant. The respondent reiterated his averments in the plaint and added that the appellant remained in breach of both the original and supplementary agreements by failing to pay the agreed sums. Further, that although the respondent later obtained a loan using the tractor as security, the repossession and eventual sale of the tractor by the bank was attributable to the appellant’s continued default in meeting his contractual obligations. He maintained that at the time of sale, the tractor had a clean title and was free from any third-party encumbrances. 8.The respondent conceded that beside the deposit of Kshs.900,000, the appellant paid a total of Kshs. 636,000 directly into his account at Consolidated Bank and that he had not produced audited accounts, or bank statements to substantiate his alleged loss of income arising from the appellant’s use of the tractor. To support his claim for loss of user, he called PW2, one Billy Moses Njagi, an accountant, who testified that he prepared a report based solely on records supplied by the respondent. He acknowledged that his report merely projected the earnings that the tractor was expected to generate during the period it was in the appellant’s possession, based solely on information from the respondent, and was not based on audited accounts, or independently verified financial records. 9.The appellant also rehashed his averments in the statement of defence and counterclaim. He produced deposit slips as evidence of payments made, amounting to Kshs. 636,000, which he asserted demonstrated substantial compliance with the terms of the supplementary agreement. It was his testimony that while the supplementary agreement was still in force, the respondent breached its terms by using the tractor as security for a loan without his knowledge or consent, notwithstanding an express term prohibiting such conduct. 10.The appellant stated that consequent to the respondent’s default in servicing his loan, the tractor was repossessed by the bank and eventually sold. The appellant stated that he thereby lost both possession of the tractor and the benefit of the bargain despite having paid substantial sums towards the purchase price. 11.Upon considering the matter before him, Hon. Kiama the learned Principal Magistrate, found that the respondent was the party in breach for charging the tractor as security for a loan and, failing to repay the loan, resulting in the tractor being repossessed and sold. He dismissed the respondent’s suit and allowed the appellant's counterclaim partly. The court awarded the appellant Kshs. 636,000 being payments made under the agreements, Kshs. 307,200 as contractual damages equivalent to 20% of the purchase price, and Kshs. 200,000 for repairs and improvements to the tractor, making a total award of Kshs. 1,143,200 together with interest and costs. 12.Aggrieved by the judgment, the respondent lodged an appeal in the High Court raising eleven grounds which we collapsed into four, being that the trial court: wrongly found the respondent to be in breach of the parties’ agreements; improperly awarded the appellant refunds, damages and repair costs; failed to recognize the appellant’s own breach of the agreements; and, wrongly dismissed the respondent’s claim while allowing the counter claim. 13.Upon considering the appeal, Gitari J found that the appellant was the party who breached the sale agreement by failing to pay the purchase price as agreed; and that the supplementary agreement merely extended the payment period and did not absolve the appellant from his obligation. Consequently, the learned Judge allowed the appeal and set aside the trial court’s judgment. The learned Judge dismissed the counterclaim, declared that the respondent did not owe the appellant anything in respect of the tractor transaction and awarded the respondent costs of the suit. 14.It was now the appellant’s turn to be aggrieved by the judgment of the court and he filed the instant appeal raising grounds in a memorandum of appeal dated 16th March 2021. The appellant assailed the learned Judge for:i.Setting aside the trial court’s judgment despite sufficient evidence supporting the appellant’s claim.ii.Misinterpreting the sale and supplementary agreements and wrongly finding that the appellant, rather than the respondent, was in breach of contract.iii.Failing to recognize that the agreements provided remedies for breach and that the respondent’s conduct entitled the appellant to contractual relief.iv.Ignoring evidence that the respondent breached the contract by charging the tractor to secure a personal loan, resulting in its repossession and sale.v.Wrongly absolving the respondent from refunding monies received, thereby allowing him to unjustly benefit from his own breach.vi.Relying on speculative and inadmissible evidence regarding profits allegedly earned from the tractor.vii.Failing to properly evaluate the evidence and submissions, leading to erroneous findings of fact and law.viii.Disregarding the respondent’s lack of good faith in the performance of the contractual obligations.ix.Erroneously dismissing the appellant’s claim and awarding costs against him, despite the evidence supporting his case.x.Wrongly holding that the respondent owed the appellant no money under the parties’ contractual arrangements. 15.In the submissions dated 22nd March 2024, filed by the firm of M/s Kiguru Kahigah & Co. Advocates on his behalf, the appellant submits that although he initially defaulted in completing payment of the purchase price for the subject tractor, the parties subsequently entered into a supplementary agreement dated 18th January 2011, which restructured the outstanding debt and provided for payment by instalments. Subsequently, the appellant made substantial payment amounting to Kshs. 636,000 pursuant to that agreement. 16.The appellant argues that the respondent thereafter, breached the parties’ agreements by charging the tractor to Consolidated Bank as security for a loan without his knowledge, and failing to service the loan, causing the tractor to be repossessed by the bank and later sold. He argues that the High Court failed to properly re-evaluate the evidence and wrongly found that the respondent had not breached the agreements. That the respondent was unjustly enriched by retaining monies paid by the appellant while at the same time recovering and disposing of the tractor, thus benefiting from those transactions at the appellant’s expense. 17.The appellant contends that the High Court failed to properly evaluate the evidence of PW2, on his averment that the figures he gave in the report were only a projection and not actual earnings. That the court ought to have made its own finding and not relied on the projected figures. He points at the respondent’s testimony that he was able to save the tractor from the auctioneer’s hammer and resold it to a 3rd party for kshs.1,400,000 with which he cleared the bank loan and retained the balance for himself. 18.The appellant therefore, urges this Court to set aside the High Court judgment and reinstate the judgment of the trial court, with appropriate enhancement of the reliefs granted. 19.In rebuttal, the respondent filed submissions dated 13th March 2024, through the firm of M/s Anne Thungu & Co. Advocates. He submits that the High Court re-evaluated the evidence properly and correctly found that the appellant was the party in breach of both the initial agreement and the supplementary agreement. The appellant admittedly failed to pay the instalments as stipulated under the original agreement and subsequently failed to comply with the repayment schedule under the supplementary agreement, by making irregular payments that did not satisfy the agreed monthly instalments of Kshs. 120,691.20. 20.The respondent further argues that the High Court correctly interpreted the contractual documents and found that the supplementary agreement did not vary the appellant’s obligation to complete payment of the purchase price. Under the agreements, the respondent's obligation to surrender the logbook and transfer documents would only arise upon full payment, a condition that was not fulfilled by the appellant. 21.On the allegation that the respondent breached the agreements by using the tractor as collateral for a loan, it is argued that neither the original nor the supplementary agreement prohibited such use. The respondent maintains that the issue of charging the tractor was extraneous to the agreed contractual terms, and that the High Court correctly held that no contractual breach arose from the loan transaction. 22.The respondent submits further that the High Court properly applied the principle that courts cannot rewrite contracts for parties. The agreements expressly provided that a defaulting party would pay damages equivalent to 20% of the purchase price, but they contained no provision entitling a defaulting purchaser to a refund of monies already paid. Since the appellant was the party in breach, he was not entitled to contractual damages, a refund, or any other relief beyond what the parties had expressly agreed. 23.The appeal came up for plenary hearing on 2nd March 2026, via the electronic platform. Mr. Kahiga, learned counsel, appeared for the appellant and relied on his written submissions. In his brief oral highlights, counsel reiterated that when the parties were still under the first agreement, the respondent took a loan using the logbook of the tractor as security without informing the appellant. 24.Ms Nthungu, learned counsel, was present for the respondent and she opted to rely entirely on her written submissions without highlighting. 25.Our duty in this second appeal was stated in Muumbo & another v Muumbo & 2 others (Civil Appeal 373 of 2018) [2022] KECA 568 (KLR) as follows:“This is a second appeal. Our mandate is as has been enunciated in a long line of cases decided by the Court. See Maina vs. Mugiria [1983] KLR 78, Kenya Breweries Ltd vs. Godfrey Odongo, Civil Appeal No. 127 of 2007, and Stanley N. Muriithi & Another vs. Bernard Munene Ithiga [2016] eKLR, among numerous others for the holdings/ propositions inter alia that, on a second appeal, the Court confines itself to matters of law only, unless it is shown that the Courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse.” 26.Having considered the grounds and record of appeal, the rival submissions and the law, we crafted three issues for determination as follows:i.Whether the High Court erred in finding that the appellant was the party in breach of the sale agreement dated 22nd November 2010, and the supplementary agreement dated 18th January 2010.ii.Whether the respondent was unjustly enriched by retaining the monies paid by the appellant, while also benefiting from the proceeds of sale of the tractor.iii.Whether the appellant was entitled to repair and improvement costs incurred on the tractor. 27.On the first issue, the appellant's argument before this Court was that the analysis of the High Court stopped at the question of default in payment and failed to consider subsequent events that fundamentally altered the contractual relationship. He contended that although he had initially defaulted, the parties renegotiated their obligations through the supplementary agreement, subsequent to which he made substantial payments amounting to Kshs. 636,000. He argued that the respondent thereafter breached the parties' arrangement by charging the tractor to a bank and allowing it to be repossessed and sold, thereby depriving him of the very subject matter of the contract. 28.On the other hand, the respondent agreed with the High Court’s findings that the appellant was the party in breach of both the original and supplementary sale agreements. That he expressly undertook to pay the purchase price in instalments but admitted in evidence that he failed to make the payments due under the agreement of 22nd November 2010. The appellant thereafter sought indulgence, leading to the supplementary agreement of 18th January 2011, under which he was required to pay monthly instalments of Kshs. 120,691.20. He again failed to comply with the terms of that agreement by making irregular payments that fell short of the agreed instalments and thereby breached the supplementary agreement as well. The respondent contended that none of the two agreements prohibited him from using the tractor as collateral for a loan. 29.The first appellate court considered this issue and held as follows:“22.By the fact of defaulting in the payment of the first two instalments, the respondent was clearly in breach of the contract. Parties are bound by their own contracts. The respondent admitted that upon paying the deposit of Kshs. 900,000/- he took possession of the tractor and started using it. A tractor is used to generate income and bring profits to the owner….23.As of 30/12/10 the appellant’s right under clause 4 of the agreement had accrued as the respondent has admitted that he was unable to pay. The purchaser had taken possession of the motor vehicle. The respondent had breached the agreement. The trial magistrate erred by failing to hold that the respondent had breached the agreement of 22/11/2010.24.On the 2nd agreement dated 18/1/ 2011, it was a supplementary agreement and there was no clause on this second agreement stating that it had altered the terms of the earlier agreement. In the absence of the express terms in the supplementary agreement altering the terms of the initial agreement, it remained valid in its terms and binding upon the parties. Indeed the supplementary agreement recognized the existence of the agreement dated 22/11/10.25.The supplementary agreement stated that the vendor had agreed to extend the repayment period, the appellant agreed to pay the balance in ten (10) equal monthly instalments of kshs. 120,691.20. The respondent again defaulted and never paid a single instalment of Kshs. 120,691.20. He made payments as follows:- Kshs 80,000/- on 29.1.2011- Kshs 40,000/- on 31.1.2011- Kshs 80,000/- on 28.2.2011- Kshs 40,000/- on 9.3.2011- Kshs 120,000/- on 2.2.2011- Kshs 51,000/- on 27.5.2011- Kshs 45,000/- on 11.6.2011- Kshs 60,000/- on 25.6.2011All totaling to Kshs. 636,000/- evidenced by Bank deposit slips produced in court by the respondent a fact not denied by the appellant.” 30.The guiding principle in the interpretation of contracts is that the Court should not re-write the terms of a contract for the parties. This was articulated by this Court in Musimba Investments Limited v Nokia Corporation [2019] KECA 950 (KLR) as follows:“The language of this clause is plain and straight forward. One of the principles of contractual interpretation is that parties have the freedom to contract; to contract even to resolve their disputes away from the courts; and that courts should not re-write terms of a contract for them.” 31.Lord Neuberger, the former President of the Supreme Court of the United Kingdom, rendered himself on principles of contractual interpretation in Arnold v Britton [2015] UKSC 36 as follows:“When interpreting a written contract, the court is concerned to identify the intention of the parties by reference to ‘what a reasonable person, having all the background knowledge which would have been available to the parties, would have understood them to be using the language in the contract to mean’, to quote Lord Hoffmann in Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38, [2009] 1 AC 1101, para14. And it does so by focusing on the meaning of the relevant words”. 32.Relevant to this issue is also the decision of this Court in National Bank of Kenya Ltd v. Pipeplastic Samkolit (K) Ltd [2002] 2 EA 503, where the Court reiterated that a court of law cannot re-write a contract for the parties; and the parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded and proved. 33.What is evident from the two agreements is that the supplementary sale agreement made on 18th January 2011, acknowledged the existence of the original sale agreement made on 22nd November, 2010. We observe however, that the supplementary agreement altered the terms of the original agreement by increasing the balance from Ksh.800,000, to Kshs. 1,206,000, to include interest and penalties, payable in about ten instalments, instead of the original three instalments. Further, it is not disputed that although the appellant paid a substantial amount of money towards the purchase price, he did not comply with the terms of payment in either of the two agreements. Therefore, we find that the first appellate court was not in error, in its finding that the appellant was in breach of both agreements. 34.The next question is whether the respondent fulfilled his obligation in the performance of the contract, or he too contributed to its breach. The agreements were silent on whether the respondent could charge the tractor to obtain a loan. However, the bank loan was the respondent’s independent liability although he used the same tractor as security. The appellant’s failure to repay the instalments as agreed may have caused the respondent to default on his loan, but the respondent cannot shift that liability on the appellant. 35.The reason the respondent cannot shift the burden of the default in repaying the bank loan to the appellant is: first, that the bank loan was not part of the agreement the appellant and the respondent entered into; secondly, the respondent did not inform the appellant or obtain his consent before he assigned the risk attached to the loan arrangement to him; lastly, even without such an express prohibition, it was a breach to charge the tractor that was the subject of the sale agreement. The respondent charged the tractor to a bank and obtained a loan. Failure to repay that bank loan caused the tractor to be repossessed and sold. This fundamentally altered the contractual relationship between the appellant and the respondent. Paragraph 4 of the agreement states “should the purchaser fail to pay as set out in clause 1 above, the vendor shall be at liberty to repossess the motor vehicle”. We note however, that it is not the respondent who repossessed the tractor. By allowing the tractor to be repossessed, the respondent deprived the appellant of the subject matter of the contract, which was the instrument he was using to pay the instalments. 36.On the second issue, the appellant's argument on unjust enrichment is founded on the contention that the respondent retained substantial sums the appellant paid towards the purchase price, and at the same time repossessed, retained, and/or benefited from the sale of the tractor. The appellant paid an initial deposit of Kshs. 900,000 under the original agreement and a further Kshs. 636,000 under the supplementary agreement, yet ultimately, he lost possession and ownership of the tractor after it was repossessed and sold. According to the appellant, allowing the respondent to retain both the payments and the benefit of Kshs.1,400,000 from the sale of the tractor resulted in an inequitable windfall to him. 37.The respondent's answer to this contention was that the parties' rights were governed by contract and not by equitable notions of restitution. He maintained that the appellant was the party in breach, having failed to pay the purchase price as agreed under both the original and supplementary agreements. The respondent further relied on the contractual provisions governing default and argued that the agreements did not provide for a refund of instalments already paid by a defaulting purchaser. In his view, the High Court correctly applied the principle that courts cannot rewrite contracts for parties by creating a refund entitlement where none existed. 38.The first appellate court considered this issue and rendered itself as follows:“On the claim for Kshs 636,000/- . The agreement had not provided a remedy for the respondent if he defaulted making some payments. There was no term of the contracts making provision for refund. The respondent took possession of the tractor and was making profits from it. He indeed admitted that he benefitted from the use of the tractor and expended some of the money which he made to pay the deposits in the appellant’s account. The trial learned Magistrate never took this into consideration. The appellant called PW2 an accountant to demonstrate to the court the earnings which the respondent could have made. There was no justification to order a refund nor was it in the agreement. The order was made in error.” 39.The doctrine of unjust enrichment was discussed in the landmark contract case of Fibrosa Spolka Akcyjna v. Fairbarn Lawson Combe Barbour Ltd. [1943] A.C decided in the United Kingdom, where Lord Wright pronounced himself at page 61 as follows:“It is clear that any civilized system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is, to prevent a man from retaining the money of, or some benefit derived from, another which it is against conscience that he should keep. Such remedies in English law are generically different from remedies in contract or in tort, and are now recognized to fall within a third category of the common law which has been called quasi-contract or restitution.” 40.In the present appeal, it is common ground that the appellant paid a total of Kshs.1,536,000 towards the performance of the contract of sale. This comprised the initial deposit of Kshs.900,000 in the original agreement and subsequent payments totaling Kshs.636,000 under the supplementary agreement. The respondent retained the monies paid by the appellant while simultaneously recovering and selling the tractor by private treaty after its repossession by the bank. 41.The issue for determination is whether the respondent unjustly enriched himself by retaining both the substantial payments made by the appellant, and the benefit of the tractor or the proceeds from its sale, without accounting for either portion. To determine this we consider the amount of money that the respondent was entitled to in terms of the agreements, vis-á-vis the amount he received from the appellant for the time the appellant had the tractor in his possession and also from the sale of the tractor. 42.The difficult question that begs to be answered is what would amount to doing justice between these two parties. 43.At this point we find it apt to echo the sentiments of Madan JA (as he then was), on the doctrine of unjust enrichment in this Court’s decision, in Chase International Investment Corporation and Another v Laxman Keshra and 3 others [1978] KECA 7 (KLR), where the learned Judge asserted that:“The aim of equity is to do justice between parties, that is what the doctrine of unjust enrichment is all about. I am firmly convinced that Laxmanbhai is entitled to succeed on the ground of unjust enrichment.The occasion is unique. This is the first case in my experience in Kenya relating to the doctrine of unjust enrichment. But then I am young as a judge and also otherwise. This doctrine is recognised and worked in the three jurisdictions of England, Canada and United States. Woe unto the day when it is lost sight of in Kenya, which would also be contrary to the spirit of section 3(c) of the Judicature Act. I trust that in future, in appropriate cases, there will be less smothering of just equitable rights for want of writing under section 3 of the Law of Contract Act.” 44.In this case, nothing much turns on the evidence of PW2 who projected the amount of money that the respondent would have made had he been in possession of his tractor during the period of the contract. PW2 testified that the tractor made Kshs.2,443,910 in profits in the year 2009 and Kshs. 2,612,920 in the year 2010. On cross examination however, he acknowledged as follows:“I did not audit the books for the plaintiff at the particular time. I was given nothing to see when I prepared the report. I came up with those figures using projection.” 45.We find that the projections by PW2 are without basis, and are too tenuous to support a conclusion that they are a true reflection of profit made by the appellant, while he was in possession of the tractor. It is our considered view that the respondent’s retention of all payments made by the appellant, while at the same time keeping all the proceeds when the tractor was sold, amounts to unjust enrichment. 46.While the repossession and sale of the tractor by private treaty were legally valid actions to recover the bank loan, the mathematics of the whole transaction left the respondent with a substantial windfall at the appellant’s expense. 47.When a contract is terminated due to a breach, the goal of damages is to put the innocent party, in this case the respondent, back into the financial position he would have been in had the contract been fulfilled. It is not to grant him a massive profit. At the same time, the appellant cannot expect to get a full refund of Kshs.1,536,000, as the respondent suffered a legitimate business disruption and the tractor underwent some depreciation while under his use for one year, one month and some days. 48.In balancing the foregoing equities, we note that the original contract price was Kshs. 1,700,000. The appellant paid Kshs. 900,000 leaving a balance of Kshs. 800,000, which was to be paid in three months. When he defaulted, the sum was increased to Kshs.1,206,000 in a supplementary agreement, to cater for interest and penalties, bringing the total price of the tractor to Kshs. 2,106,000. The appellant paid instalments totaling Kshs. 636,000 in the supplementary agreement. Therefore, the respondent received a total of Kshs.1,536,000, from the appellant and Kshs. 1,400,000 from the sale of the tractor by private treaty. The total sum realized by the respondent was Kshs. 2,936,000. 49.Considering that if the contract had been performed the price of the tractor stood at Kshs. 2,106,000, it follows that the respondent received a surplus sum of Kshs. 830,000, above the contract sum. In our considered view, this amount comprises unjust enrichment and should be refunded to the appellant. 50.Then there is the matter of clause 8 of the initial agreement dated 22nd November 2010, which provides that:“any party who breaches this agreement shall pay 20% of the purchase price in damages to the innocent party and refund all other expenses incurred pursuant thereto”. 51.As earlier found, none of the parties was innocent in the debacle of the sale agreement. We therefore, find that none of the parties is entitled to damages of 20% of the purchase price. 52.The appellant also claimed for the costs of repair and improvement incurred on the tractor. On this we refer to Clause 5 of the sale agreement which stated as follows:“The parties hereby covenant that the motor vehicle is in sound mechanical state having due regard to minor requirements in normal service due to natural wear and tear in use, and the purchaser has established this to be the state of the same.” 53.Based on the agreement, this ground of appeal is a non-starter and must fail. 54.Consequently, this appeal partially succeeds to the extent that the respondent is ordered to refund Kshs. 830,000 to the appellant. Each party shall bear their cost of the appeal.It is so ordered. DATED AND DELIVERED AT NYERI THIS 31ST DAY OF JULY, 2026.S. ole KANTAI.............................JUDGE OF APPEALNGUGI MUMBI...........................JUDGE OF APPEALL. ACHODE...........................JUDGE OF APPEALI certify that this is a true copy of the original SignedDEPUTY REGISTRAR