https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5092

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT OF KENYA** **AT HOMA BAY** **ELCL APPEAL NO. E029 OF 2025** MICHAEL RAY NYAMBURY................................................APPELLANT VS JAMES ROBERT BOLO..................................................RESPONDENT **JUDGEMENT** 1. The appeal relates to land reference No. Homabay Kabuoch /Konyango /Karading 30 (the suit property). The appellant, defendant in the lower court, was aggrieved by the judgment of the Principal Magistrate’s Court at Ndhiwa Law Courts (Hon. E.M. Onzere P.M) delivered on 9th September 2025 in ELC Case No. E028 of 2022 in favour of the respondent whereby it was held that the plaintiff is a purchaser for value of all that parcel of land known as Homabay /Kabuoch Konyango /Karading/ 30 and the defendant was compelled to return the original title deed for the suit property within 30 days of the date of judgment. That failure to which, court administrator of the court to execute necessary documents required to effect transfer from the name of the defendant to that of the plaintiff after which the land registrar Homabay County will proceed and cancel the title deed issued to the defendant. 2. The appellant, in his memorandum of appeal dated 10th September 2025 raises the following grounds; 3. The Honourable Magistrate demonstrated actual bias in her judgment to favor the Respondent as the Magistrate relied on extraneous evidence that did not form part of the proceedings and/or clearly giving strong affirmation to the Plaintiff’s allegations that were never proven i.e 4. By concluding that the Appellant wanted to sell the land to third parties with a view of enriching himself. This is a new fact that was never adduced in evidence, proven or tried. 5. Affirming that the Plaintiff had been using the said property from 2011 an allegation that was challenged by the defendant and never proven by the Plaintiff. 6. Basing her judgment on her own beliefs as opposed to facts for instance, insisting that the signature on the alleged agreement was for the defendant because she believed so. 7. Relying on the Plaintiff’s imaginary intentions and reducing herself into a witness for the plaintiff. 8. The learned Magistrate erred in law and fact in finding that the sale agreement was valid while there was overwhelming evidence challenging the agreement. 9. The appellant urged this Court to quash and set aside the judgment of the Court below. Also, that cost of both the Subordinate Court and the Appeal be provided for in favor of the Appellant. 10. The background of the appeal is that the respondent moved the Magistrate Court at Ndhiwa seeking the following; 11. An order compelling the defendant to execute all the necessary transfer document to execute all the necessary transfer documents in relation to land parcel no. Homabay /Kabuoch Konyango /Karading/ 30 in favor of the plaintiff or in the alternative. 12. The defendant to refund the plaintiff Kenya Shillings Four Hundred and Thirty-Six Thousand (Kshs. 436,000.00) as above plus interest thereon at the rate of 12% per annum from the date of judgment until payment in full in addition to the contractual 60% full purchase price default penalty. 13. The cost of this suit together with interest thereon at the rate of 14% per annum from the date of filing suit until payment in full. 14. General damages for breach of contract. 15. The appellant’ contention was that he never got into any agreement which the respondent to sell to him land and that he does not know the origin of the agreement the respondent is referring to. He further points out that there is no proof of payment of any consideration to him by the respondent with regards to purchase of the suit parcel of land. 16. The appellant denied the respondent’ claim particularly that they know each other and that the signature on the land sale agreement was forged hence not his signature. 17. On the other hand, the respondent in the lower court stated that via a contract dated 22nd December 2011, the appellant agreed to sale to the plaintiff the suit property measuring 1.74 ha at a total sum of Kshs. 436,000 which was paid in full and the defendant acknowledged receipt of the money by signing the said agreement and the he took possession. That the appellant kept assuring him that he will transfer the said property to him as per the agreement but in vain. That the appellant has on numerous occasions taken third parties to the said land with a view of selling the same to them and in breach of the agreement he had with the appellant. 18. **In determining the matter, the main issues discerned by the trial court were the ownership of the suit property and whether the same was registered in the name of the defendant? Whether there exists a valid land sale agreement touching on the land between the plaintiff and the defendant? Whether the defendant holds the land in constructive trust for the plaintiff? Whether the agreement herein can be enforced by way of specific performance? And whether the plaintiff is entitled to the remedies sought?** 19. The trial court ruled in favor of the plaintiff, the respondent herein. 20. The appellant filed this appeal which was canvassed by way of written submissions. Both parties filed their submission where the appellant’s submissions in support of appeal were dated 19th March 2026 while the respondent’s submissions opposing the appeal were dated 20th March 2026. **Duty of the First Appellate Court** 1. This being a first appeal, this Court is under a duty to reconsider, evaluate and analyse the evidence afresh and draw its own conclusions while bearing in mind that it neither saw nor heard the witnesses testify. The Court should nevertheless give due allowance for that disadvantage. This principle was settled in ***Selle & Another v Associated Motor Boat Co. Ltd & Others* [1968] EA 123**. **Issues for Determination** 1. Having considered the record of appeal, the pleadings, the evidence, the judgment of the trial court and the written submissions filed by both parties, the following issues arise for determination; 1. Whether the learned trial magistrate relied on extraneous matters or demonstrated bias. 2. Whether the respondent proved the existence of a valid and enforceable sale agreement. 3. Whether the respondent proved payment of the purchase price. 4. Whether the respondent was entitled to the equitable remedy of specific performance. 5. Whether the concept of constructive trust was improperly construed. 6. Who should bear the costs of the appeal. **Determination** **(a) Whether the trial court relied on extraneous matters** 1. The appellant argues that the learned magistrate relied upon facts which had neither been pleaded nor proved, particularly that he intended to dispose of the land to third parties and that the respondent had occupied the land since 2011. 2. A court is obliged to determine disputes strictly on the basis of the pleadings, evidence adduced and applicable law. It is equally settled that parties are bound by their pleadings. 3. Upon reviewing the impugned judgment, this Court notes that some observations made by the trial court regarding the appellant's intention to enrich himself by selling the land to third parties were not directly supported by independent evidence beyond the respondent's allegations. Such remarks ought to have been avoided. 4. However, appellate intervention is not warranted merely because a trial court made unnecessary observations. The question is whether those observations formed the basis of the decision and occasioned a miscarriage of justice. 5. From the judgment as a whole, it is apparent that the learned magistrate principally relied upon the sale agreement, the evidence tendered by the respondent and the conduct of the parties. The impugned remarks did not constitute the foundation of the judgment. 6. Consequently, this ground alone cannot justify interference with the decision. **(b) Whether there existed a valid sale agreement** 1. A land sale agreement must pass the legal muster of conforming to Section 3(3) of the [*Law of Contract Act*](https://kenyalaw.org/akn/ke/act/1960/43), as read together with Section 38 of the [*Land Act*](https://kenyalaw.org/akn/ke/act/2012/6). The salient features of a land sale agreement include the capacity of the parties to transact, the agreement must be in writing, and signed by all the parties. There must be consideration. A sale agreement must be witnessed and executed before the witnesses. 2. Breach of contract is defined under Black’s Law Dictionary 9th Edition, page 213, as a violation of a contract obligation by failing to perform one's own promises, by repudiating it, or by interfering with another party's performance. See Ramji Meghji Gudka Limited v Getembe Thrift Company Limited & 2 others (Civil Appeal 45 of 2019) [2025] KECA 22 (KLR) (17 January 2025) (Judgment). 3. Courts do not rewrite contracts between the parties, who are bound by the terms of their contract, unless coercion, fraud, or undue influence are pleaded and proved. See National Bank of Kenya -vs- Pipe Plastic Samkolit (K) Ltd & Another [2001] KLR 112. 4. A court cannot enforce illegal contracts. A party seeking to enforce a sale agreement must prove its validity. In Ongera & Others -vs- Makwae [2025] KECA 535 [KL]R (21 March 2025) (Judgment), the court held that it is essential to prove the existence and terms of a sale agreement, if it occurred, and the consideration paid. 5. In construing a contract, a court of law has to interpret it the same way parties have reduced it into writing as to the terms and conditions, unless it is challenged on account of illegality or fraud. In RTS Flexible Systems Limited -vs- Molkerei Alois Müller GmbH [2010] UKSC 14, the court held that a court looks not into the subjective state and mind of the parties, but upon consideration of who was committed between them by words or conduct, and whether that leads to a conclusion that they intended to create a legal relationship. 6. Applying the foregoing case law to the instant suit, the appellant’s case is that he did not sign the alleged sale agreement with the respondent. The respondent’s terms the sale agreement as fraudulent or forged and the contract was not properly executed as per the law. 7. Allegations of fraud or forgery are serious in nature and must not only be specifically pleaded but also strictly proved, though not beyond reasonable doubt. Though the appellant alleges that the sale agreement dated 22nd December 2011 was fraudulent and that his signature was forged, he has not furnished the court with any evidence in support of his allegations as required of him under Section 107 of Evidence Act Chapter 80 of Laws of Kenya. The appellant neither produced expert evidence from a document examiner nor called any witness capable of demonstrating that the signature appearing on the agreement was forged. That it was left to court to make inferences. That in any case, respondent pointed out during cross-examination that the appellant signature on the sale agreement and on the document filed in court are similar and it was not changed. The appellant acknowledged that he never sued the person who impersonated him. The trial court compared the evidence before it and accepted the respondent's version of events. 8. The appellant states that the sale agreement relied upon was not properly executed. That Zakayo Odoyo Makolwal did not sign the agreement. He further indicates that he did not appear before the Advocate with the respondent to execute the agreement and that the signatures of each party was not attested by an Advocate. 9. **Section 3 (3) of the Law of Contract Act**; No suit shall be brought upon a contract for the disposition of an interest in land unless— (a) the contract upon which the suit is founded— (i) is in writing; (ii) is signed by all the parties thereto; and (b) the signature of each party signing has been attested by a witness who is present when the contract was signed by such party. 10. As per the above provision, the contract as it is presented was excellently executed as it was signed by both the vendor and the purchaser and the signature of each party was attested by a witness who was present when the contract was signed by the party. In the present case, there were two witnesses who were present namely Sara Bolo and Advocate Tom Mboya. It is the view of this court that the agreement was executed as per the law. There is nothing on record demonstrating that the learned magistrate misdirected herself in reaching that conclusion. This Court is therefore unable to fault the finding that the respondent established, on a balance of probabilities, the existence of the sale agreement. **(c) Whether payment of the purchase price was proved.** 1. The respondent stated that he paid to the appellant in cash before the Advocate. The agreement produced before the trial court the appellant signed acknowledging receipt of the agreed purchase price. An acknowledgement contained in a written agreement constitutes prima facie evidence of payment unless rebutted. Beyond a mere denial, the appellant offered no evidence demonstrating that the acknowledgement was false or fabricated. The learned trial magistrate therefore cannot be faulted for finding that consideration had been paid. **(d) Whether specific performance was properly granted.** 1. The evidence presented has confirmed that the land sale agreement dated 22nd December 2011 as presented in the trial court meets the requirements as set out under Section 3(3) of the Law of Contract Act and in the circumstances, I find the appellant’s attempt to disown the sale agreement must fail. The said sale agreement is therefore valid and enforceable. 2. In the case of **RELIABLE ELECTRICAL ENGINEERS (K) LTD Vs MANTRAC KENYA LIMITED [2006] eKLR**, the court held as follows: “The jurisdiction of specific performance is based on the existence of a valid, enforceable contract. It will not be ordered if the contract suffers from some defect, such as failure to comply with the formal requirements or mistake or illegality, which makes the contract invalid or unenforceable. Even where a contract is valid and enforceable specific performance will, however, not be ordered where there is an adequate alternative remedy. In this respect damages are considered to be an adequate alternative remedy where the claimant can readily get the equivalent of what he contracted for from another source. Even where damages are not an adequate remedy specific performance may still be refused on the ground of undue influence or where it will cause severe hardship to the defendant.” 1. Specific performance is an equitable remedy granted where damages would not adequately compensate the innocent party. Land is unique, and where a valid contract exists, consideration has been paid and the vendor refuses to complete the transaction without lawful justification, specific performance remains the appropriate remedy. The appellant remained the registered proprietor and therefore possessed the legal capacity to transfer the suit property. The learned magistrate therefore properly exercised her discretion in ordering specific performance. **e) Whether the concept of constructive trust was improperly construed.** 1. That other than the appellant’s assertion that the respondent is not in occupation of the suit property, no evidence has been tendered to rebut the respondent testimony that he indeed took possession of the said land pursuant to the sale agreement of 22nd December 2011. That it is common knowledge that a party who executes an agreement in land and takes possession thereof acquires an equitable interest which is protected by law. The Court of Appeal in the case of **PETER MBIRI MICHUKI VS SAMUEL MUGO MICHUKI [2014]** eKLR pronounced itself as follows; **“34. In Mwangi & Another vs Mwangi, (1986) KLR 328, it was held that the rights of a person in possession or occupation of land are equitable rights which are binding on the land and the land is subject to those rights...................** **35. The dicta in Mwangi & Another Vs Mwangi, (1986) KLR 328, establishes the principle that the rights of a person in possession or occupation of land are equitable rights which are binding on the land.... In the instant case, the plaintiff was in occupation of the suit property and his possessory rights are not only equitable rights but an overriding interest binding on the land. Section 18 of the Limitation of Actions Act provides that subject to Section 20(1), the Act applies to equitable interests in land … and accordingly a right to action to recover the land … accrues to a person entitled in possession to such an equitable interest in the like manner and circumstances and on the same date as it would accrue if his interest were a legal estate in the land.** **36. It is our considered view that when the appellant entered into a sale agreement with the plaintiff in 1964 and received the purchase price for the suit property, the appellant became a trustee holding the suit property in favour of the plaintiff. The plaintiff having paid the purchase price and taken possession acquired an equitable beneficial interest in the suit property.”** 1. That from the evidence tendered, the respondent took possession of the suit property upon paying the purchase price in accordance with their sale agreement, and is therefore entitled to the equitable rights over the said land. **Determination.** 1. Having independently reconsidered the entire evidence on record, this Court is not persuaded that the learned trial magistrate misapprehended the evidence, applied wrong principles of law or exercised her discretion injudiciously. 2. Consequently, the appeal lacks merit and is dismissed in its entirety. The Judgment of the Principal Magistrate delivered on 9th September 2025 in Ndhiwa PM ELC Case No. E028 of 2022 is hereby upheld. The appellant shall bear the costs of this appeal. 3. . File closed. **Judgement dated and delivered at Homa Bay this 27th day of July 2026 via team’s platform.** **In the Presence of;** 1. Odera for the Appellant 2. Adeya for Nyakwamba for the Respondent. 3. Court Assistant; Mercy. **JUSTICE J.W WANYONYI-JUDGE** **27/7/2026**