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Mutulile & another v Curzon & another (Civil Appeal E019 of 2025) [2026] KEHC 8670 (KLR) (Civ) (18 June 2026) (Judgment) Neutral citation: [2026] KEHC 8670 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E019 of 2025 BW Murunga, J June 18, 2026 Between Marvin Wasike Mutulile 1st Appellant Olga Rose Tumaini Mutulile 2nd Appellant and Paul Curzon 1st Respondent Michael Okoth 2nd Respondent (Being an appeal from the judgment of the Hon. B. Cheloti (Learned Magistrate) delivered on 11th December 2024 in Milimani CMCC No. 4902 of 2018) Judgment A. Background 1.This appeal has its genesis in a financial accommodation extended in the year 2008. The Appellants, Marvin Wasike Mutulile and Olga Rose Tumaini Mutulile, approached the 1st Respondent, Paul Curzon, for a loan. After a course of negotiations the parties settled upon a facility of Kenya Shillings Three Million (KES 3,000,000) at interest of twenty-four per centum (24%) per annum, repayable over five years. 2.That bargain was reduced to writing in a letter of offer dated 4th November 2008 and a mortgage instrument dated 4th December 2008, the latter being duly registered and perfected over Apartment C2, Cedar Springs Apartments situated on L.R. No. 330/256 along Riara Road, which property thereby stood charged to the 1st Respondent as security for the facility. 3.The Appellants fell into default. The 1st Respondent issued statutory notices; the Appellants tendered a tranche of cheques which were dishonoured, and the facility continued to attract interest. 4.The charged property was valued by Royal Valuers on open market value of KES 15,000,000 and forced sale value of KES 11,250,000, the auctioneers issued their notification of sale, the property was advertised in the press, and on 23rd October 2018 it was sold by public auction to the 2nd Respondent, Michael Okoth, to whom a transfer was subsequently effected. 5.Aggrieved, the Appellants commenced Milimani CMCC No. 4902 of 2018, seeking to impugn the sale. By her judgment delivered on 11th December 2024, the Learned Magistrate dismissed the appellants' suit, upheld the 2nd respondent's counterclaim, declared the 2nd respondent the rightful owner of the suit property, and issued a permanent injunction restraining the appellants from dealing with it. It is that judgment which is now assailed before me. B. The Grounds Of Appeal 6.By their Memorandum of Appeal dated 9th January 2025, the Appellants advance three grounds, namely that the Learned Magistrate erred in law and fact: first, in failing to be guided by law and procedure and thereby arriving at a wrong conclusion; secondly, in failing to critically consider and apply the Appellants’ submissions and the authorities cited; and thirdly, in relying on extraneous matters. 7.They pray that the appeal be allowed, the impugned judgment set aside, and this Court substitute its own finding, with costs. C. The Appellants' Submissions 8.In their written submissions dated 19th January 2026, the Appellants invite this Court, sitting as a first appellate court, to re-evaluate the evidence and reach its own conclusions. They distill the following issues. 9.On repayment, they contend that the trial court wrongly found that only KES 500,000 had been paid, ignoring documentary and oral evidence of further payments totalling some KES 4,900,000 made at the 1st Respondent's residence in April 2010, evidenced by acknowledgment notes said to bear the 1st Respondent’s signature and witnessed by his former driver. They argue that the Magistrate gave undue weight to a bare allegation of forgery without proof, contrary to the burden cast by section 107 of the Evidence Act, and that the totality of the evidence established repayment far exceeding KES 500,000. 10.On variation, the Appellants submit that the facility was initially agreed at 22% interest and unilaterally increased to 24%, and that the trial court erred in sanctioning that variation, relying on authorities such as Givan Okallo Ingari v Housing Finance Co. (K) Ltd, Samson M. Aketch v Sidian Bank Limited, Margaret Njeri Muiruri v Bank of Baroda (Kenya) Ltd and National Bank of Kenya Limited v Kitiyo. 11.They argue that, the alleged default being founded upon unlawfully varied figures, the statutory power of sale never lawfully accrued; that the demand for KES 18,672,634 was unexplained and inflated; that no proper valuation was carried out; that a caveat subsisted against the title; and that the property was transferred while restraining court orders were in force, contrary to the principle in Hadkinson v Hadkinson. 12.They pray that the appeal be allowed in its entirety. D. The 1st Respondent's Submissions 13.The 1st Respondent, by submissions dated 10th February 2026, raises two preliminary objections. First, that the record of appeal is incomplete, omitting the proceedings of 13th September 2024 when the witnesses testified and were cross-examined, which omission, he says, renders the appeal incompetent on the authority of Bwana v Bonaya & 2 others and Abdalla v Ewins. 14.Secondly, that the issues argued in the Appellants’ submissions are incongruous with the three grounds in the Memorandum of Appeal, offending Order 42 Rule 4 of the Civil Procedure Rules and the holding in Ng’ang’a v Njabani, so that the new issues ought to be disregarded. 15.On the merits, the 1st Respondent contends that the 6th October 2008 email predated, and was superseded by, the executed letter of offer and mortgage, and that on the authority of Kukal Properties Development Ltd v Maloo & 3 others prior negotiations are inadmissible to vary a written contract; hence there was no unlawful variation. 16.He submits that default was admitted, that the alleged KES 4,900,000 was never proved (the 1st Appellant having declined to testify or be cross-examined, the supporting witness being a dismissed employee with an axe to grind, and the Appellants’ own settlement letter of 21st November 2017 offering KES 4,000,000 against an acknowledged debt of KES 18,000,000 making no mention of the payments), that all statutory notices were served and acknowledged, that a valuation was undertaken, that the caveat was expressly subject to the mortgage, and that the chargee was bound to transfer the property to the purchaser once the hammer fell. 17.He prays that the appeal be dismissed with costs. E. The 2nd Respondent's Submissions 18.The 2nd respondent, by submissions dated 4th March 2026, associates himself with the preliminary objections and adds that the grounds of appeal are vague and unparticularised, offending Order 42 Rule 1(2) of the Civil Procedure Rules. 19.He emphasises his position as a bona fide purchaser for value at a lawful public auction, contending that his title is protected and rendered indefeasible by section 99 of the Land Act, 2012, absent any fraud attributable to him, and relies upon authorities affirming the protection of innocent purchasers. 20.On the substance, the 2nd respondent submits that the trial court’s evaluation of the evidence was meticulous and evidence-driven; that the power of sale crystallised upon proven default and was exercised through compliant notices, valuation, advertisement and auction in conformity with sections 90 to 99 of the Land Act; that the Magistrate did consider the appellants’ submissions; and that no extraneous matter informed the judgment. He prays that the appeal be dismissed with costs to him and the decree of the lower court confirmed in full. F. Issues For Determination 21.Having considered the Memorandum of Appeal, the rival submissions and the record, I am of the view that the following issues arise for determination:i.Whether the appeal is incompetent by reason of an incomplete record of appeal and/or a divergence between the grounds of appeal and the issues canvassed;ii.Whether the Learned Magistrate erred in her evaluation of the evidence relating to repayment of the facility;iii.Whether the loan terms were unlawfully and unilaterally varied;iv.Whether the statutory power of sale lawfully accrued and was properly exercised;v.Whether the transfer of the suit property to the 2nd respondent was vitiated by subsisting court orders, and the effect of section 99 of the Land Act, 2012 on the 2nd respondent's title;vi.Whether the trial court failed to consider the appellants' submissions or relied on extraneous matters; andvii.who should bear the costs of the appeal. G. Analysis And Determination 22.Before turning to the issues, I remind myself of my duty. This being a first appeal, I am enjoined to re-consider, re-evaluate and re-assess the entire evidence on record and to draw my own independent conclusions, while bearing in mind that, unlike the trial court, I neither saw nor heard the witnesses, and making due allowance in that regard. 23.That is the rule restated in Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123 and, in this jurisdiction, in Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR, on which all parties are agreed. The corollary, equally settled since Peters v Sunday Post Ltd [1958] EA 424, is that where a finding turns on the credibility of witnesses an appellate court will be slow to interfere, intervening only where it is shown that the trial court overlooked or misapprehended the evidence, took into account irrelevant matters, or acted on a wrong principle. I approach the record with these competing cautions in mind. 24.I take the preliminary objections first, for if they succeed the merits fall away. The complaint that the record omits the proceedings of 13th September 2024 is not without force. A first appeal is, in substance, a re-hearing on the record, and a court cannot re-evaluate evidence it does not have before it; where critical portions of the proceedings are unaccountably absent, an appeal may properly be struck out, as the decisions cited by the respondents illustrate. 25.That said, the power to strike out in limine is one to be exercised with circumspection, and always subject to the overriding objective in sections 1A and 1B of the Civil Procedure Act, which commands the just determination of disputes. I note that subsequent to the submission following an application by the Appellant, the Record of Appeal was amended and provided with the pages that were complete. The parties had in addition, between them, placed before me a substantial record running to two volumes, and have argued the appeal fully on its merits. In those circumstances I am not persuaded that the justice of the case would have been served by a summary strike-out; I would rather determine the appeal on its substance. Suffice to state that the burden of demonstrating that the trial court misapprehended the oral evidence lies squarely on the Appellants, and that any lacuna in the record they themselves compiled would have operated to their disadvantage and not to that of the respondents. 26.The second objection, founded on Order 42 Rule 4 of the Civil Procedure Rules, is that the Appellants have smuggled into their submissions issues not pleaded in the Memorandum of Appeal. The three grounds as drawn are cast at a high level of generality, while the submissions descend into four discrete and largely fresh contentions. The rule, and the holding in Ng'ang'a v Njabani [2024] eKLR, are clear that an appellant may not, without leave, be heard on grounds not set forth in the memorandum. Yet the first ground, that the Magistrate failed to be guided by law and procedure and thereby reached a wrong conclusion, is broad enough, read purposively, to accommodate the appellants' complaints touching the evaluation of the evidence and the exercise of the power of sale, those being matters of law and procedure going to the very correctness of the decision. 27.To the extent the submissions stray beyond that compass I shall disregard them; but I do not think the appellants should be shut out from a hearing on the core of their grievance. I therefore proceed to consider the substantive issues, conscious that the generality of the grounds itself tells against the appellants when it comes to discharging their burden of demonstrating specific, identifiable error. 28.I turn to the first substantive issue, the finding on repayment. The appellants’ case is that, beyond the KES 500,000 the trial court accepted, they paid a further KES 4,900,000 in cash at the 1st Respondent’s residence in April 2010, evidenced by acknowledgment notes bearing his signature and spoken to by his former driver. If made out, that would be a serious matter, for a finding of fact reached in disregard of cogent documentary evidence is a recognised basis for appellate intervention. The question, however, is not whether the evidence existed, but whether it was proved; and here the appellants encounter difficulties they have not surmounted. 29.The burden of proving payment lay on the appellants who asserted it: he who alleges must prove, as sections 107 and 109 of the Evidence Act provide. The acknowledgment notes were said to have been signed by the 1st appellant and the 1st respondent. Yet the 1st appellant, the very maker of the documents and the person who claims to have handed over the cash, did not enter the witness box to produce them or to be tested on their authenticity. 30.The only witness called on the point was, on his own admission, a former employee of the 1st respondent dismissed for theft, who conceded that he was not present when the money is said to have changed hands and did not know the nature of the dealings between the parties. 31.The appellants would place the onus on the 1st respondent to call a handwriting expert to disprove the notes; but that is to invert the burden. It was for those propounding the documents to establish them, not for the party impugning them to disprove what had never been proved. 32.Decisively, the appellants’ own conduct contradicts their case. By a letter dated 21st November 2017, authored by their advocates and still on record, the appellants acknowledged a demand for an accrued debt in the region of KES 18,000,000 and offered to settle the whole of it by a single payment of KES 4,000,000. That letter is irreconcilable with a genuine belief that KES 4,900,000 had already been paid; for a debtor who had paid such a sum would surely have asserted it, not ignored it while pleading for indulgence on a far larger figure. 33.The point is fortified by the unchallenged fact that the appellants’ own cheques for the comparatively modest sum of KES 200,000 were dishonoured for want of funds, which sits ill with the suggestion that they were in a position to disburse KES 4,900,000 in cash. Weighing the record as a whole, I am unable to fault the Learned Magistrate’s conclusion that repayment beyond the sums she accepted was not established. This was a finding open to her on the evidence, and one that turned in no small measure on the credibility of witnesses she saw and I did not. I would not disturb it. 34.The second substantive issue is the alleged unilateral variation of the interest rate from 22% to 24%. The foundation of this complaint is the email of 6th October 2008, in which the 1st respondent’s advocate intimated a willingness to advance KES 2,800,000 at 22% over five years. The appellants seek to elevate that communication to the status of a binding term and to treat the later figure of 24% as an unlawful increase. The argument cannot succeed, for it offends a settled rule of evidence. The email belongs to the negotiations that preceded the contract; the contract itself is to be found in the executed letter of offer of 4th November 2008 and the registered mortgage of 4th December 2008. 35.Under sections 97 and 98 of the Evidence Act, where the terms of a transaction have been reduced to a document, the document is the sole repository of those terms, and oral or extrinsic evidence of prior negotiations is not admissible to contradict or vary it. That principle was applied by the Court of Appeal in Kukal Properties Development Ltd v Maloo & 3 others [1993] eKLR, on which the 1st respondent rightly relies: evidence of negotiations is not admissible to vary the terms of a written contract, and the parties’ intentions are taken to be embodied in the contract itself. 36.The increase in the rate from 22% to 24% went hand in hand with an increase in the principal from KES 2,800,000 to KES 3,000,000, and both were carried into the instruments the appellants executed and have never sought to rectify or set aside. There was, in truth, no variation of an agreed term at all, but the conclusion of an agreement on terms different from, and superseding, an earlier offer. 37.The authorities the appellants cite, Givan Okallo Ingari, Samson M. Aketch, Margaret Njeri Muiruri and Kitiyo, are of a different stripe: each concerned a lender altering the rate during the currency of a subsisting facility, without the borrower’s consent. They do not assist a borrower who, before execution, negotiated and then signed up to the higher figure. This ground fails. 38.The third issue is whether the statutory power of sale lawfully accrued and was properly exercised. Its accrual depends upon proven default, and default, as I have found, was not displaced by the appellants. The power having arisen, the question becomes one of compliance with the statutory machinery in sections 90 and 96 of the Land Act and the attendant notices. 39.On the record, the appellants were served with a notice by registered post on 16th July 2009, which they acknowledged by their letter of 30th July 2009, undertaking to repay by instalments; with a further notice of 7th June 2017 received in person; with the statutory notice of sale of 25th September 2017; and with the auctioneer's notification of sale of 23rd August 2018. 40.While the burden of proving service of statutory notices rests on the chargee, as the Court of Appeal held in Nyagilo Ochieng & Another v Fanuel Ochieng & 2 Others [1995-1998] 2 EA 260, that burden was discharged here, for receipt of the material notices was admitted, both in cross-examination and in the appellants’ settlement letter of 21st November 2017 in which they engaged with the very debt the notices demanded. 41.The subsidiary complaints do not improve the appellants’ position. A valuation report of 19th April 2018 was produced; the appellants offered no contrary valuation and led no evidence to dislodge it, and a bare assertion that the valuer was denied access cannot, without more, vitiate a sale. The complaint of delay, the last acknowledged payment being in 2010 and the demand in 2017, raises no bar: an action to recover money secured by a charge is not statute-barred until twelve years have run, and mere lapse of time short of that, during which interest lawfully accrued, does not extinguish the chargee’s right of realisation. 42.As for the caveat registered on 27th April 2018, its own terms placed it expressly subject to the mortgage, so that, far from ousting the chargee’s right of sale, it preserved the priority of the registered charge. Taken together, the notices, valuation, advertisement and auction disclose an exercise of the power of sale in substantial conformity with the law, and I can find no basis for impugning it. 43.The fourth issue, that the property was transferred while restraining orders subsisted, must be tested against the chronology, and the chronology is fatal to the appellants. On 22nd October 2018, the Hon. E. Wanjala considered and declined the appellants’ application for an interlocutory injunction to stop the sale. The auction proceeded the very next day, 23rd October 2018, at a time when no order of any court restrained it. The appellants thereafter lodged Civil Appeal No. 513 of 2018 and sought, on 26th October 2018, to halt the transfer, but were again denied interim relief. 44.The restraining orders on which the appellants now rely were obtained ex parte in December 2018, after the hammer had fallen and the sale concluded, and were themselves the subject of applications to set them aside for non-disclosure. 45.The premise of the appellants’ argument, that the sale and transfer trampled on subsisting injunctions, is therefore not borne out by the record. The principle in Hadkinson v Hadkinson, that orders must be obeyed while they stand, is sound but inappropriate, for there was no operative order to disobey at the material time. 46.There is, moreover, an independent and complete answer to any challenge directed at the 2nd respondent’s title. Upon the fall of the hammer, the appellants’ equity of redemption was extinguished, and the chargee came under a corresponding obligation to transfer the property to the purchaser. 47.By section 99 of the Land Act, 2012, the title of a purchaser who buys in the exercise of a statutory power of sale is protected, and a person aggrieved by an unauthorised, improper or irregular exercise of that power is confined to a remedy in damages under section 99(4) against the person who exercised it, not to the unravelling of a concluded sale. 48.That is the effect of the decisions of this Court in Simon Njoroge Mburu v Consolidated Bank of Kenya Ltd [2014] eKLR, and of the Court of Appeal in its consolidated decision in Civil Appeal No. 109 of 2017 (consolidated with No. 156 of 2017) [2019] eKLR, where it was affirmed that a purchaser at such an auction is immunised from suit, that the equity of redemption is spent at the fall of the hammer, and, pertinently, that there is no requirement to re-issue a statutory notice merely because a planned auction was temporarily stopped and then permitted to proceed. There being no allegation, let alone proof, of fraud or collusion on the part of the 2nd respondent, his title is unassailable, and the trial court was right to so hold. 49.It remains to deal with the second and third grounds, that the Magistrate failed to consider the appellants’ submissions and relied on extraneous matters. Neither is made out. A perusal of the impugned judgment shows that the trial court engaged with the parties’ rival positions; and in any event submissions, however eloquent, are not evidence and do not bind the court, which decides on its own appreciation of the evidence and the law, as the Court of Appeal observed in Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & Another [2014] eKLR. A court is not obliged to recite and answer every authority cited so long as the substance of the contentions is addressed. 50.The allegation of reliance on extraneous matters fares worse still: the appellants have not identified a single such matter. A ground so framed is an assertion in search of particulars, and the party who alleges must prove it under section 107 of the Evidence Act. It cannot succeed. 51.Drawing the threads together, the appellants have not demonstrated that the Learned Magistrate misapprehended the evidence, misdirected herself in law, or acted on any wrong principle. The judgment under appeal, far from being wrong, accords with both the evidence and the law. The appeal must therefore fail. H. Disposition 52.In the result, and for the reasons set out above, I make the following orders:a.The appeal dated 9th January 2025 is hereby dismissed in its entirety.b.The judgment and decree of the Learned Magistrate delivered on 11th December 2024 in Milimani CMCC No. 4902 of 2018 are affirmed in their entirety.c.The costs of this appeal shall be borne by the AppellantsIt is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 18TH DAY OF JUNE 2026.BENARD MURUNGA WAFULAJUDGEIn the presence of:Amutavi for the AppellantNakhone for the RespondentKevin Babu - Court Assistant