[2023] KEELC 20308 (KLR)

Mutisya v Mbuvi & another (Environment and Land Appeal 18 of 2021) [2023] KEELC 20308 (KLR) (26 September 2023) (Judgment)

Neutral citation: [2023] KEELC 20308 (KLR)

Republic of Kenya

In the Environment and Land Court at Kitui

Environment and Land Appeal 18 of 2021

LG Kimani, J

September 26, 2023

Between

Regina Mwelu Mutisya

Appellant

and

Sabina Mwikali Mbuvi

1st Respondent

Veronicah Kalekye Nzilu

2nd Respondent

(Being an Appeal from the Judgment of the Chief Magistrate Honourable S. Mbungi, in Kitui Land Case Number 56 of 2018 delivered on 9th July 2021)

Judgment

1. This is an appeal from the judgment of the Chief Magistrate Honourable S. Mbungi, in Kitui Chief Magistrate’s Land Case Number 56 of 2018 delivered on 9th July 2021. The Memorandum of Appeal dated 6th August 2021 sets forth the following grounds:1. That the Learned Magistrate erred in law and misdirected himself both in law and facts by failing to find as a fact that the Appellant had fully paid the full purchase price to the 1st Respondent in respect to what is now Land Title Number Kyangwithya/Nduumoni/646 and as such it was not available for sale to the 2nd Respondent.2. That the Learned Magistrate erred in law and misdirected himself both in law and facts by failing to find as a fact that there was evidence from the documents filed by the Appellant that the 1st Respondent had acknowledged full payment of the purchase price from the Appellant.3. That the Learned Magistrate erred in law and misdirected himself both in law and facts when after finding that the 1st Respondent had resold land title number Kyangwithya/Nduumoni/646 to the 2nd Respondent, failed to order the refund of the full purchase price passed of Ksh.450,0000 with interest as prayed in the alternative prayers of the Plaint.4. That the Learned Magistrate erred in law and misdirected himself both in law and facts by failing to find as a fact that the registration of the 2nd Respondent as the proprietor of the disputed parcel of land was as a result of a fraud committed by both Respondents against the Appellant.

2. The Appellant herein was the Plaintiff in the suit before the trial court while the 1st and 2nd Respondents herein were the Defendant and the Interested Party respectively.

3. The Plaintiff claimed that on 24. 10. 2015, she purchased a portion of three acres out of land parcel number Kyangiwthya/Nduumoni/637 from the Defendant who was the registered owner at an agreed purchase price of Ksh. 450,000. She stated that she paid the purchase price in full and the Defendant acknowledged it.

4. The Defendant is said to have caused the title to be sub-divided into three namely Kyangiwthya/Nduumoni/644, 645 and 646 and threatened to transfer the titles to third parties excluding the plaintiff. The Plaintiff prayed for a declaration that she was entitled to a portion of land measuring three acres to be excised from either Kyangiwthya/Nduumoni/644, 645 or 646 which were created from land parcel No. Kyangiwthya/Nduumoni/637, or in the alternative the recovery of Ksh.450,000. 00 as the purchase price with interest at court rates from 24. 10. 2015 until payment in full, general damages for breach of contract as well as costs of the suit.

5. In defence, the Defendant acknowledged selling a portion of the main title Kyangiwthya/Nduumoni/637 and that she intended to transfer the portion that she sold to the Plaintiff after sub-division of the land. She stated that the main suit land was held in common by her husband and his brother and it had to be sub-divided so that she could transfer the Plaintiff’s portion to her. The Defendant stated that she had given the Plaintiff vacant possession of the portion of land that she bought and had never denied her entry. She also alleged that there has been interference on the suit property from third parties and police when the agreement was only between her and the Plaintiff. It was her averment that the suit was premature and that the Plaintiff was not entitled to the orders as prayed.

Proceedings before the trial court 6. PW 1, Regina Mwelu Mutisya the Plaintiff, testified and adopted of her witness statement. She also produced in evidence the documents filed in Court. She reiterated that she had bought three acres out of land parcel Kyangwithya/Nduumoni/12 from the Defendant and paid Ksh. 450,000/= in installments. Survey was done and beacons were placed on the land but she found that the beacons had been uprooted. She stated that the Defendant did not allow her to use the land.

7. On cross-examination, PW 1 stated that she had paid the purchase price in instalments though there was no document that she signed indicating that she cleared the payment. She stated that she did not want the money but wanted the three acres of land that she bought.

8. The plaintiff stated that the subdivision and registration of Kyangwithya/Nduumoni/12 into 637,632, 644 and 646 with 637 was done after she had already bought the land and her position was that the Defendant should have transferred the 3 acres to her. She had put a restriction on the three parcels of land registered in the defendant’s name. The Interested party had bought a portion of land as well from the Defendant though she had not seen the sale agreement between them.

9. The defendant testified as DW 1 and Sabina Mwikali Mbuvi acknowledged that she had indeed sold a plot of land to the Plaintiff in 2015 but it had a dispute because it was in her husband’s name. The Plaintiff had lodged a complaint against her in 2018 and that there was one Kinyathe Makoma who claimed part of the land left to her by her husband but she solved the dispute with his children after he died.

10. The defendant stated that the Plaintiff and herself went to the CID office where they agreed on refund of money but on the date she was to pay the amount, she received summons from the Plaintiff’s Advocate. She stated that the Plaintiff had paid her a total of Ksh. 330,000 when they agreed purchase price was Ksh. 450,000.

11. On cross-examination, she stated that she had sold land parcel Kyangwithya/Nduumoni/646 to the Interested party in order to pay the Plaintiff back her money which was the same plot she had sold to the Plaintiff but she stated that it was bigger than 3 acres. She stated that she was amenable to refunding the plaintiff her money.

12. The Interested party, Veronicah Kalekye Nzilu stated that she wanted the court to lift restrictions on her land, Kyangwithya/Nduumoni/646 that she bought for a sum of Ksh. 780,000 to enable her get her title deed. On cross-examination, she stated that she was not aware that the land had been bought by another person because the search she carried out on the land showed the land was in the name of the Defendant.

13. The trial court gave its judgment on 9th July 2021, finding that the agreement for the sale of the subject land did not meet all the legal requirements for it to be enforceable because the description of the property and its size was not stated. The court argued that seeing that the Plaintiff said that she bought 3 acres while the Defendant stated that she was selling a plot for 100 feet by 100 feet showed that there was no agreement. Further, the title deed for Kyangwithya/Nduumoni/12 was not in the Defendant’s name when she sold the land and that there was no power of attorney authorizing her to sell the land or letters of administration. The court argued that she had no legal capacity to enter into the agreement. Further, that the suit land being agricultural land, any sale should have been sanctioned by the Land Control Board as per Section 6(1) if the Land Control Act CAP 302.

14. The Trial magistrate’s conclusion was that the only remedy available to the Plaintiff is a refund of the money she had paid to the Defendant, quoting section 7 of the Land Control Act.

15. Noting that the Defendant stated that the Plaintiff only paid a total of Ksh. 330,000 and signed for the same and did not produce any evidence to show that she paid the balance of Ksh.120,000. 00 to the Defendant, the Trial court held that the Plaintiff is only entitled to a refund of the Ksh.330,000. The court ordered that each party bear its own costs since the Plaintiff did not produce a copy of the demand notice served upon the Defendant to make her aware of the suit.

16. On the part of the interested party, the Trial Court found that she had made out her case and acquired good title over Kyangwithya/Nduumoni/646 from the Defendant and there were duly executed transfer documents indicating the same, duly paid stamp duty and the transfer receipt.

Appellant’s written submissions 17. Counsel submitted that the Appellant fully paid the Ksh.450,000 purchase price for the Land Parcel Kyangwithya//Nduumoni/646 as evidenced at pages 21-24 of the record of appeal where she paid Ksh.300,000. 00 pages 25-27 drawn in Kikamba language and translated at pages 29-30 where she paid on 2 occasions on 21st July 2016 and 22nd July 2016 a sum of Ksh.80,000. 00 and Ksh.40,000. 00 Page 28 was submitted to contain the last payment of Ksh.30,000 on 10th November2017, making up the agreed full consideration of Ksh.450,000. 00

18. According to Counsel for the Appellant, it is evident that grounds 1 and 2 of the Memorandum of Appeal have been well argued and should succeed as well as Ground 3. It is their submission that the lower court should have ordered for the refund of the full purchase price of Ksh. 450,000. 00 along with costs of the suit and interest.

19. On the 4th ground, it was the Appellant’s submission that the registration of the 2nd Respondent as the proprietor of the disputed land parcel number Kyangwithya/Nduumoni/646 was as a result of a fraudulent dealing since another party had interest in the land. It was submitted that the Respondents, being party to the fraud were liable to pay general damages to the Appellant if the alternative prayers were to be considered. They therefore pray that the judgment of the trial court be set aside and be substituted with an order allowing the Appellant’s case in the lower court as prayed with costs and interests and costs of the Appeal as well.

2nd Respondent’s submissions 20. Counsel for the 2nd Respondent who was the Interested Party before the trial court submitted that at the time of the purported sale of land, Kyangwithya/Nduumoni/12 was in the names of Kilile and Mbuvi and the 1st Respondent was not a co-owner of the land.

21. It was submitted that the dispute between the Appellant and the 1st Respondent was settled by the police where the Appellant was to refund Ksh.330,000 but before it was settled, the 1st Respondent received summons from the court for the case.

22. The Interested party stated that she was about to receive her when injunction orders were obtained and she joined in the suit as an interested party. Her submission is that the Plaintiff had no business placing an injunction on Land Parcel 646/Kyangwithya/Ndumoni which had not been sold to her and another party had interest in it.

23. Noting that the trial court invalidated the sale agreement by virtue of the requirements of the Land Control Act and other issues, they submitted that it was null and void and therefore unenforceable and that is the reason why the Court could only order a refund of the Ksh. 330,000. 00 paid by the Plaintiff as was entered as an alternative prayer.

24. It is the Respondent’s final submission that the trial court did not misdirect, error or make any mistake or misappropriate any issue or miss any legal issue at the trial and urged the court not to tamper with the trial court’s findings of the trial court.

Analysis and Determination 25. The Court has considered the grounds of appeal set out in the Memorandum of Appeal, the entire record of appeal and the submissions of Counsel. In the Courts view, all the grounds of appeal will be more easily dealt with together as they raise the question of legality of the sale of a portion of three acres out of land parcel number Kyangwithya/Ndumoni/12 which was later subdivided into Kyangwithya/Ndumoni/637 which was later subdivided into Kyangwithya/Ndumoni/644,Kyangwithya/Ndumoni/645and Kyangwithya/Ndumoni/646.

26. This being the first appellate court, its duty as summarized by the Court of Appeal in Selle & Another V Associated Motor Boat Company & Others, [1968] EA 123:“… is to reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect…’’

27. On the mandate of an appellate court, the court proceeded to state as follows:“… In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence on the case generally.”

28. The claim before the trial Court arose from the sale of land on the strength of a sale agreement dated 24. 10. 2015. The trial court found that the sale agreement entered between the Appellant and the 1st Respondent did not meet the requirements of the law under Section 3 (3) of the Law of Contract Act which states that “No suit shall be brought upon a contract for the disposition of an interest in land unless— 1) the contract upon which the suit is founded—I) is in writing; ii) is signed by all the parties thereto;”

29. The court faulted the agreement presented before it and noted that the same did not contain a description of the property to be bought and especially the size was not stated. Further, that the parties to the suit did not agree on the size of the land to be sold since the Appellant stated that she was buying 3 acres while the 1st Respondent stated that she was selling 100 feet by 100 feet. The trial court stated that the purchase price was not stated in the sale agreement, and the title deed of land parcel No. Kyangwithya/Ndumoni/12 was in the name of the Defendant’s husbands and his brother and there was no power of attorney or letters of administration enabloing the defendant to sell the land.

30. The trial Court further faulted the sale transaction and stated that it fell afoul of the provisions of Section 6 (1) (a) of the Land Control Act since no consent to sell the land subject matter of the sale had been obtained.

31. This court does not agree with some of the reasons given by the trial Court for faulting the sale agreement for the reason that the agreement attached to the record of appeal herein, clearly shows that the sale was for three acres of land out of land described as located in Ngumoni sublocation title No. 12 and the purchase price is also stated to be Kshs 150,000. 00 per acre making a total of Kshs. 450,000. However, the Court agrees with the conclusion arrived at by the trial court that at the time of entering into the sale agreement with the Appellant the 1st Respondent did not have the capacity to sell the land since the said land was not registered in her name and to that extent the sale agreement was invalid and unenforceable.

32. Examination of the sale agreement produced in evidence shows that the land being sold was a portion of three acres out of a parcel of land located at Ndumoni sublocation title No. 12. The 1st Respondent produced in evidence before the trial Court a copy of the title to the said land being land parcel No. Kyangwitya/Ndumoni/12 registered in the names of Kilile Mbuu and Mbuvi Mbuu. While testifying in court the 1st Defendant confirmed that the title was in the name of her deceased husband and his brother.

33. It will be noted that the claim in the plaint was that the Plaintiff purchased a portion of land parcel No. Kyangwithya/Ndumoni/637 which was registered in the name of the Defendant. However, this assertion contradicts what was stated in the sale agreement that the land subject of the agreement was land parcel No. 12. Indeed, the title deed for Kyangwithya/Ndumoni/637 was issued on 9th March, 2018 long after the sale agreement herein dated 24. 10. 2015 was entered into. Even though the 1st Respondent acknowledged selling a portion of the land to the Appellant, she confirmed during the hearing that the land part of which she sold was registered in the name of her husband.

34. It can therefore be concluded that legally the 1st Respondent had no capacity to sell land that did not belong to her. This is under the legal principle of Nemo dat quod non habet, literally meaning "no one can give what they do not have." This is a legal rule, sometimes called the nemo dat rule, that states that the purchase of a possession from someone who has no ownership right to it also denies the purchaser any ownership title.The Court in the case of Daniel Kiprugut Maiywa v Rebecca Chepkurgat Maina [2019] eKLR took note that:“The nemo dat principle means one cannot give what he does not have. This principle is intended to protect the title of the true owner. The rationale behind this principle is that whoever owns the legal title to property holds the title thereto until he or she decides to transfer it to someone else. Accordingly, an unauthorized transfer of the title by any person other than the owner generally has no legal effect, which means the owner continues to hold the title to the property while the person who received the invalid title owns nothing.”

35. This position was also taken by the Court in the case of Joseck Ikai Mukuha v James Irungu Kanyuga [2021] eKLR which observed as follows;“The Court in Nelson Kivuvani Vs Yuda Komora & Another, Nairobi HCCC No.956 of 1991, opined that an agreement for sale of land“The agreement for sale of land which contains the names of the parties, the number of the property, the purchase price and the conditions attached thereto, the obligations, express or implied, of each of the parties and signed and witnessed by two witnesses who signed against their names amount to a valid contract”.To this stretch the parties entered into a valid contract for the sale and transfer of the parcel of land hence validating the contract. However, the Court in Murang’a ELC No. 32 of 2017 found that, “the 2nd Defendant did not possess a valid legal title neither did the 3rd Defendant on account of proven fraud, illegality and procedural improprieties on the part of the 2nd, 3rd, 4th and 5th Defendant” The Defendant herein therefore did not have a good tile to transfer the land to the Plaintiff thus was voided. It has been settled that a party cannot give that which he does not have; therefore, the Defendant could not have given title to land if he did not have.The remedy available for the Plaintiff is for compensation for breach of contract and therefore a refund of the purchase price, the contract having become incapable of being enforced thus putting parties to a position they were before the contract.”

36. Having found that the sale agreement between the Appellant and the 1st Respondent was invalid and the 1st Respondent had no legal capacity to sell any part of land parcel Kyangwithya/Ndumoni/12, the Court finds that consideration of the issue of whether the sale of land parcle Kyangwithya/Ndumoni/646 by the 1st Respondent to the Interested Party was valid would be a moot point. This for the reason that the Appellant did not file any claim against the Interested Party who only came into the suit when the Appellant obtained court orders of prohibition against the title she had purchased. By that time the 1st defendant was the registered owner of the subdivision parcel number 646 and as such she had the capacity to transact with the said parcel of land.

37. The Appellant sought an alternative prayer of a refund of the Ksh.450,000. 00 as purchase price. However, the trial Court found that she had not produced any evidence to show that she paid a balance of Ksh. 120,000. 00 to the 1st Respondent.The trial Court found that the only remedy available to the Appellant was refund of the money paid to the 1st Respondent. The Court accepted the sum of Kshs. 330,000. 00 admitted by the 1st Respondent as the sum paid as part of the purchase price. The Appellant on the other hand stated that she fully paid the entire sum of Ksh.450,000. 00 purchase price.

38. After perusing the record of appeal and the documents produced in evidence during trial, the court notes documents showing payments of the purchase price; at page 21 of the record of appeal the 1st Respondent acknowledged that she had received a deposit of Ksh. 200,000. 00 on 24. 10. 2015. On page 24 the 1st Respondent acknowledged receipt of Ksh.100,000. 00 on 7th February 2015. At pages 25-27 written in Kamba language and translated on pages 29-30, the Appellant states that she had paid a sum of Ksh. 80,000. 00 on 21st July 2016 and was to pay Ksh.40,000. 00 the next day on 22. 7.2016 which she did and acknowledged there was a balance which she was to settle on the date of transferring the title. This was signed by both parties and witnessed by 2 other parties. At page 28 of the record of Appeal the final balance of Ksh. 30,000. 00 was paid on 10th November 2017 making a total of the amount paid of Ksh.450,000. 00.

39. On the question of the amount paid by the Appellant to the 1st Respondent, the trial Court found that the “Plaintiff has not produced any evidence to show that she paid the balance of Kshs. 120,000 to the defendant. Therefore, I find that the plaintiff is only entitled for a refund of Kshs. 330,000/=”

40. However, as shown above the record of appeal contains documents that show that the entire purchase price was paid. The court has also looked at the 1st Defendant’s defence where the 1st Respondent admits entering into a sale agreement of the land . She admits intention to subdivide the land and transfer to the Appellant the portion she had sold to her though she also admits that the land was in the name of her husband. She further stated that pursuant to the agreement she gave the Appellant vacant possesion of the land to show good faith.

41. The 1st Respondent contends that the only reason she was unable to transfer the land to the Appellant was because of the claim on the land by her brother-in-law Makoma and the complaint made to the lands office by him. At no time did the 1st Respondent claim that her failure and/or refusal to transfer the land was due to non-payment of any part of the purchase price. The issue of non-payment of the sum of Kshs. 120,000 balance of the purchase price only came out during the hearing.

42. The question that arises is whether the issue of non-payment of part of the purchase price having only come out during the hearing formed an issue for determination taking into account that the averment by the Plaintiff that she paid the entire purchase price in the sum of Kshs. 450,000/= was clearly made in the plaint and not converted. The Civil Procedure Rules Order 2 Rule 11 provides for admissions and denials in pleadings and states that;(1)Subject to subrule (4), any allegation of fact made by a party in his pleading shall be deemed to be admitted by the opposing party unless it is traversed by that party in his pleading or a joinder of issue under rule 10 operates as a denial of it.2. A traverse may be made either by denial or by a statement of non-admission and either expressly or by necessary.3. implicationSubject to subrule (4), every allegation of fact made in a plaint or counterclaim which the party on whom it is served does not intend to admit shall be specifically traversed by him in his defence or defence to counterclaim; and a general denial of such allegations, or a general statement of non-admission of them, shall not be a sufficient traverse of them.4. Any allegation that a party has suffered damage and any allegation as to the amount of damages shall be deemed to have been traversed unless specifically admitted.”

43. Having considered all the above, I do find that the Resord of appeal contains documents that prove payment of the sum of Kshs 450,000. 00. as the purchse price as opposed to the finding of the court that the said amount had not been proved. The Court further finds that the sum paid to the 1st Respondent by the Appellant as purchase price was specifically pleaded but was not specifically traversed in the defence. Indeed, the entire defence by the 1st Respondent amounted to admission of the entire transaction of sale and purchase and receipt of the sale price. The 1st Respondent gave details of the Plaintiff’s efforts to have the land in issue transferred to her but due to the reasons given in the said defence the 1st Respondent did not transfer the land to the Appellant. She also confirmed her intention to refund the Appellant the purchase price prior to the commencement of the suit herein

44. The Appellant also stated that the trial court failed to award her costs of the suit even though she was the successful litigant. The trial court ordered that each party bear its own costs since the Plaintiff did not produce a copy of the demand notice allegedly served upon the Defendant to make her aware of the suit.

45. The law on costs is that the award of costs is at the discretion of the trial court as provided for by Section 27 of the Civil Procedure Act. The provision further states that costs should follow the event unless the court shall for good reason otherwise order. The said Section 27 states that;-“The costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full powers to determine by whom and out of what property and to what extent such costs are to be paid.”

46. The legal foundation for fair and proportionate award of costs is espoused in the case of Scherer V Counting Instruments Ltd[1986] IWLR 615 the English Court of Appeal set out the principles for the award of costs which are in essence not far distanced from our local jurisprudence. They are;-a)The normal rule is that cost follows the event. The party who turns out to have unjustifiably either brought another party before the court, or given another party cause to have recourse to the Court to obtain his rights is required to compensate that other party in costs; butb)The judge has an unlimited discretion to make what orders as to costs he considers that the justice of the case requires.c)Consequently, a successful party has a reasonable expectation of obtaining an order for his costs to be paid by the opposing party, but has no right to such an order, for it depends upon the exercise of the Court’s discretion.d)This discretion is not one to be exercised arbitrarily, it must be exercised judicially, that is to say, in accordance with established principles and in relation to the facts of the case.e)The discretion cannot be well exercised unless there are relevant grounds for its exercise, for its exercise without grounds cannot be a proper exercise of the judges’ function.f)The grounds must be connected with the case. This may extend to any matter relating to litigation, but no further. In relation to interim application, “the case” is restricted to the application, and does not extend to the whole of the proceedings.g)If a party invokes the jurisdiction of the court to grant him some discretionary relief and establish the basic ground therefor, but the relief sought is denied in the exercise of discretion the opposing party may properly be ordered to pay his costs. But where the party who invokes the Court’s jurisdiction wholly falls to establish one or more of the ingredients necessary to entitle him to the relief claimed, whether discretionary or not, it is difficult to envisage a ground on which the opposition party could properly be ordered to pay his costs.”

47. In this case, the trial court denied the appellant costs on the ground that she had not served on the Respondent a notice of intention to institute the suit against her. Though the trial Court did not cite any provision of the law that supports denial of costs on the ground of failure to issue a demand letter, this question is specifically provided for under Paragraph 53 of the Advocates Act which states as follows:“If the plaintiff in any action has not given the defendant notice of his intention to sue, and the defendant pays the amount claimed or found due at or before the first hearing, no advocate’s costs shall be allowed except on a special order of the judge or magistrate.”

48. The foregoing paragraph envisages a situation where when the suit is filed in the absence of a notice of intention to sue being issued, the Defendant pays the amount claimed on or before the first hearing. In the present case, the 1st Respondent did not pay the appellant any money before or during the trial and there is no indication that an offer for payment was made and rejected.

49. Further, the above provision seems to suggest that in liquidated claims, failure to serve a defendant with a demand letter would disentitle a plaintiff of an award of costs. The rationale for this position was well captured by Emukule J in Catherine Ngore Obare V Stephen Mulanya Kula & 4 Others, [2014] eKLR where he expressed himself as follows:“The basis of denial of costs for failure to give notice to sue is founded upon the principle that where the claim is for liquidated damages, it is considered that had the defendant been notified of the debt due, he would have paid, and the necessity of suit would have been avoided. The principle also applies where though suit has been filed, the defendant pays the claim well before the hearing of the suit. The general principle of law however is that costs follow the event.”

50. In the present case the 1st Respondent’s defence to the Appellant’s claim was an acknowledgement of the transaction of sale of land and receipt of the sale price. The 1st Respondent gave details of the Plaintiff’ efforts at having the land in issue transferred to her but due to the reasons given in the said defence the 1st Respondent stated that she did not transfer the title to the suit land to the Appellant. She also confirmed her intention to refund the Appellant the purchase price prior to the commencement of the suit herein. It therefore cannot be said that the 1st Respondent was not made aware of the Appellant’s intention to institute legal proceedings against her for failure to honour her part of the agreement of sale.

51. During the trial the 1st Respondent confirmed having been paid the sum of Kshs. 330,000/- as part of the purchase price. The trial Court accepted the said statement as the truth concerning the amount paid and awarded the Appellant the said amount. Applying the provision of paragraph 54 of the Advocates Act, the 1st Defendant ought to have deposited in court the amount acknowledged before or during the hearing in order to qualify for the exception on award of costs.

52. Given that part of the the appellant’s claim was not liquidated, it is my finding that the learned trial magistrate erred in law when he refused to award costs to the appellant who was the successful litigant in a suit which was contested.

53. For the foregoing reasons the court gives judgement as follows;a.The judgement of the trial cour the Chief Magistrate Honourable S. Mbungi, in Kitui Land Case Number 56 of 2018 delivered on 9th July 2021 be and is hereby set aside.b.The trial court judgement is substituted with an order allowing the alternative prayer by the Appellant for refund of the sum of Kshs. 450,000 together with interests at court rates from the date of filing the suit until payment in full.c.The Appellant is awarded costs of suit before the trial court.d.Costs of the appeal are awarded to the Appellant to be paid by the 1st Respondent.

DELIVERED, DATED AND SIGNED AT KITUI THIS 26TH DAY OF SEPTEMBER, 2023. HON. L. G. KIMANIENVIRONMENT AND LAND COURT JUDGEJudgement read in open court and virtually in the presence of;Musyoki - Court AssistantMwalimu for the AppellantN/A for the 1st RespondentAmhanda holding brief for Kilonzi for the 2nd Respondent