https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3722

Owino & another v District Land Registrar Rachuonyo & another (Environment and Land Case 21 of 2025) [2026] KEELC 3722 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KEELC 3722 (KLR) Republic of Kenya In the Environment and Land Court at Homa Bay Environment and Land Case 21 of 2025 JW Wanyonyi, J June 12, 2026 Between Elijah Otieno Owino 1st Appellant Ben Owino Otieno 2nd Appellant and The District Land Registrar Rachuonyo 1st Respondent Japheth Nyaoke 2nd Respondent (Being an Appeal from the judgment, decree order of the Chief Magistrate Court at Oyugis before Honourable S.O Ongeri dated 22nd day of April, 2025 in Civil Suit No. 45 of 2023) Judgment Background 1.This judgment is in respect of an appeal lodged by the Appellant herein, being dissatisfied with the judgment and decree of the Honourable S.O. ONGERI (PM), delivered on 2nd April, 2025 in Oyugis MCELC Case No. E45 of 2023. 2.The dispute before the trial court revolved around the ownership and transfer of the parcel of land known as Karachuonyo/Kamser Seka /1274. The Appellant was prior to filing the suit, the registered proprietor and owner of the suit parcel measuring approx. (0.34) Ha situated in East Karachuonyo Seka vide a title deed issued on 21/8/2000. 3.The 1st Appellant contended before the trial court that he had issued the original title deed to the 2nd Appellant for safe custody and subdivision between himself and his brother James Aketch. 4.The matter proceeded to hearing. PW1 was the 1st Appellant and adopted his statement as evidence. He told the court that the 2nd Respondent who is a family member was taking his land. He says he doesn’t know what his son Aketch talked to the 2nd Respondent but he only stopped him when he was ploughing the Land: that he did not report loss of title; denies going to the Appellant’s Advocates offices. In cross exam he says he did not include the OB in his list of documents, that he signed a document at Oyugis but he doesn’t know what he signed and that he made a complaint to the DPP but since he never followed, he could not tell whether the same was declined. 5.PW2, the 2nd Appellant adopted two statements. He told the court that he is a son to the 1st Appellant. He says he filed the case after he heard that his brother had been insulting his father to give him a portion of land. In cross exam he says since he was away in Nairobi, he did not witness what happened in Oyugis ; that he had the title documents and was shocked that the title was transferred. He confirms that he was at the Chief’s office and resolutions were never read, that explains why he didn’t sign. He also confirms that he went for a meeting at the Office of the ACC. 6.PW3, Richard Adour Nyatieno says he was not present when the agreement was done. 7.PW4 says he did not witness the agreement but says he signed agreement. He says he reported to DC1 that there was an agreement. 8.The Defence called five (5) witnesses. Dw1 the 2nd Respondent told the court that the 1st Appellant approached him with an intention of disposing land. He negotiated same in the presence of the Appellant’s sons ; that there were two agreements which were thumb printed by the 1st Appellant.; that the money was received in the presence of his witnesses; that it is the 2nd Appellant who had raised concerns regarding the sale and Indeed the 2nd Appellant wrote a letter warning him not to buy same He confirms that the Area chief was present.DW3 was the Assistant Chief of Kagwe Location and she says the land was sold willingly; that Elijah willingly sold the land in the presence of his two sons and that she is able to verify the thumb print as she personally witnessed the seller inserting same. After selling Elijah demanded for more money. DW4 states that he signed the agreement thrice. He confirmed from the Photo the presence of the seller (Elijah); that he also attended the meeting at the Chief’s office where Benard, the elder son to the said Seller said he was ready to refund the money received. He said he witnessed money being paid thrice for the same parcel of land and confirmed that Elijah was to pay Dowry for the wife 9.DW5, was a Village elder. He says Elijah was in sound mind and sold the land willingly in the presence of his two sons. He says Elijah intimated to him that he was to pay dowry. In cross examination, he states that he was known to the family of Elijah and witnessed the agreement; that counted the money personally and saw seller thumb print the documents. 10.The Learned Trial Magistrate, did consider the evidence and framed issues for determination, and found that the 1st Appellant could not be trusted. The court found that he sold the land but upon being confronted by the 2ndAppellant appeared to have changed his mind. The court found that the Appellants failed to prove their case against the 2nd Respondent and proceeded to dismiss the suit with costs. 11.Aggrieved by the said findings, the Appellants lodged their Memorandum of Appeal dated 20th May 2025 before this court raising the following grounds:a.That the Learned Magistrate erred in law and fact by failing to properly evaluate and determine the issue of the two alleged sale agreements produced by the 2nd Respondent, which indicated that the suit land was purportedly sold twiceb.That the Learned Magistrate erred in law and fact by failing to consider the irregularities in the documents presented by the 2nd Respondent purporting to transfer the title to parcel of land Karachuonyo/Kamser Seka /1274 to the 2nd Respondent.c.That the Learned Magistrate erred in law and fact by completely disregarding the Appellants claims against the 1st Respondent who failed to verify the legitimacy of documents before effecting the alleged replacement of title and transfer and subsequently failed to appear in court despite being served with pleadings.d.That the Learned Magistrate erred in law and fact by dismissing the 1st Appellant credible testimony that he never signed any sale agreement nor received any consideration for the purported sale of land.e.That the Learned Magistrate erred in law and fact by ignoring the evidence of the Police Occurrence book (OB) entry produced by the Appellants which documented alleged loss of title with the 2nd Respondents telephone number indicated therein as the contact person, demonstrating fraud.f.That the Learned Magistrate erred in law and fact by relying on photographs allegedly showing that the 1st Appellant’s participation in the transfer process, which was never legally produced or exhibited in the trial.g.That the Learned Magistrate erred in law and fact by overlooking contradictions in the 2nd Respondent’s witness statement and testimony, including that of his witnesses.h.That the Learned Magistrate erred in law and fact by disregarding the testimonies of Pw3 (Richard Aduol Nyatieno) and PW4 (Robert Ouko) thus no sale agreement existed and that the transfer was fraudulenti.That the Learned Magistrate erred in law by misplacing the burden of proof on the Appellant instead of requiring the Respondent to prove the legality of the contested transactions, particularly in light of serious allegation of fraud.j.That the Learned Magistrate erred in law and fact by making prejudicial findings by characterization of the 1st Appellant’s credibility basing it on subjective impressions rather than objective assessment of evidence.k.That the Learned Magistrate erred in law by improperly drawing adverse inferences from the Appellants alleged failure to avail a report presuming the existence and contents of a report without evidence that such a report has been completed or served on the Appellants.l.The Learned Magistrate erred in law and fact by disregarding the Appellant’s evidence and testimonies wholly, by failing to properly evaluate all the issues framed for determination and only based his decision on the alleged two agreements. 12.Consequently, the Appellants pray that the judgment and decree of the trial court be set aside in its entirety, and that judgment be entered in their favour as per the reliefs sought in their plaint. 13.A defence was filed by the 2nd Respondent where he denies any wrong doing but admits that he is the registered owner having paid full consideration and having followed due procedure. 14.It is against this backdrop that the Appellants now seek the intervention of this Court to set aside the findings of the Learned Trial Magistrate. Directions by the Court. 15.The court directed that the appeal be canvassed by way of written submissions. The parties compiled by filing their respective submissions. The court has had occasion to read and consider the submissions in the writing of this judgement Analysis of Submissions. 16.The appellants in their submissions contend that there was a huge discrepancy in the evidence presented ; that the Learned Magistrate failed to appreciate both facts and evidence placed before him ; that the 2nd Respondent failed to explain why there were two agreements over the same land ; that the existence of the original title deed was demonstrated in evidence , yet the trial court failed to address this crucial fact; that the transfer document was gravely defective : that court failed to consider that it was the 2nd Respondent who reported loss of title : that the Appellants lodged a complaint with the DC1 and the Learned Trial Magistrate fell into grave error for faulting the Appellants for failing to produce a report which was clearly outside their control , and lastly , that by substituting objective assessment of evidence with subjective impressions. The, trial Magistrate violated the constitutional safeguard of the right to a fair hearing thereby occasioning prejudice to the Appellants. 17.The appellants cite the Court of Appeal decision in Njaramba & 3 others versus Kamau (Civil Appeal 37 of 2018)[2024] KECA 1847 (KLR) and Henry Vs Kithinji (ELCA NUMBER E024 OF 2022) (2024) KEELC 5637(KLR) where the Court of Appeal and this court deliberated on the validity of agreements .The Appellants in reference to the above state that the 1st Appellant’s execution of the alleged agreements was not duly attested to as the purported attestation of PW4 was expressly disowned .That since no valid contract existed, the resultant title is fatally defective, invalid, null and void and ought to be cancelled . 18.The appellants also advance the argument that the testimonies of the 2nd Respondent’s witnesses are riddled with material inconsistencies, both in terms of agreements and the consideration allegedly paid. They relied on the decision of Ogando Versus Watu Credit Limited and another (Civil suit E098 of 2022(2024) KEHC 3074 (KLR) and IEBC & Another v Stephen Mutinda Mule & 3 others (2014) eKLR where the court held that parties are bound by pleadings and lastly, they referred to the case of Gatonye& Anor vs Kinyae & 2 others KEHC 11706 (KLR) where it was held that adverse inferences cannot be over a party who has no control over production of evidence. 19.In his supplementary submissions Counsel for the Appellant has raised issues with the supplementary record of Appeal and submissions dated 20th October ,2025. He objects to an attempt to sneak documents which were never properly produced and admitted as evidence in the trial court. 20.I will address this concern in my deliberations hereafter. 21.In his submissions, Counsel for the 2nd Respondent states that the 2nd Respondent has brought overwhelming evidence that the agreement meets the criteria provided under section 3 (3) of the Law of the Contract Act and consideration was equally paid to the 1st Respondent, Counsel also relied on section 107 of the Evidence Act and court of Appeal decision of Mbuthia Macharia Vs Annah Mutua Ndwiga & Another (2017) eKLR. 22.Counsel goes further to argue that the 2nd Respondent provided a chronogical explanation backed with documentary evidence on all steps he and the 1st Appellant undertook from the date of the agreement all the way to issuance of a title document, that it was not the duty of the Respondent to verify legitimacy of documents , that to that end the 1st Appellant personally appeared before the land board , that the 2nd Appellant wrote a letter to the 2nd Respondent through the Area chief, admitting that the 2nd respondent paid a small amount to his father, which amount he felt was below the value of the land , that photographs were served and produced without objection, that statements of PW3 and Pw3 were hearsay , that the court was guided by law as evidenced by the Judgment that anyone who alleges illegality must prove it , that the result of complaint lodged at the DCI was that no fraud was committed and in court the Appellant admitted that he never pursued. 23.In framing the issues for determination, this court is conscious of its responsibilities as the first appellate court. Mativo J (as he then was) in Mursal & another v Manese (suing as the legal administrator of Dalphine Kanini Manesa) (Civil Appeal E20 of 2021) [2022] KEHC 282 (KLR) (6 April 2022) (Judgment) held that,“A first appellate court is mandated to re-evaluate the evidence before the trial court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand. This duty was stated in Selle & another v Associated Motor Boat Co. Ltd.& others and in Peters v Sunday Post Limited. A first appellate court has jurisdiction to reverse or affirm the findings of the trial court. A first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court, must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it. A first appellate court is the final court of fact ordinarily and therefore a litigant is entitled to a full, fair, and independent consideration of the evidence at the appellate stage. Anything less is unjust. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard on both questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. While considering the scope of Section 78 of Civil Procedure Act, a court of first appeal can appreciate the entire evidence and come to a different conclusion." 24.Having carefully considered the Memorandum of Appeal, the record of the trial court, and the submissions by the Parties, the main question is whether this appeal is merited. In resolving that question, the following issues arise for determination:i.Whether the trial court erred in law and fact in holding that the contract for sale of land between the 1st Appellants and the 2nd Respondent was valid and properly executed.ii.Whether the transfer of the suit property to the 2nd and 3rd Respondents was tainted with fraud and whether the 2nd Respondent herein can properly be regarded as bona fide purchaser.iii.Whether the Appellants are entitled to the orders sought in this appeal, and who should bear the costs of the appeal. Analysis and Determination 25.As to whether the trial court erred in law and fact in holding that the contract as between the 1st Appellant and the 2nd Respondent was valid and properly executed. 26.First and fore most ,it imperative to assess the meaning, nature and scope of a contract and its validity in law. Simply put, a contract is a legal agreement made between one or more people (offer and acceptance) who undertake to do a certain thing or things in a transaction or transactions and where there is a consideration and which is enforceable in law. 27.According to “A Treaties on Law of Contract” 2nd Edition by Samweul Wiliston holds that:-“A Contract is a promise, or a set of promise, for breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty. This definition may not be satisfactory since it requires a subsequent definition of the circumstances under which the law does in fact attach legal obligation to the promises. But if a definition were attempted which should cover these operative facts, it would require compressing the entire law relating to formation of contracts into a single sentence.” 28.In short, there are four ingredients for it to constitute a legal contract.These are namelya.An agreement or promise made between one or more people (offer anacceptance);b.An agreement to undertake to do a certain thing or things in a transaction or transactionsc.There is a consideration; and.The agreement is enforceable in law. 29.The provision of Section 3 (3) of the Law of Contract Act Cap. 23 read together with Section 38 of the Land Act, No. 6 of 2012 provide that no suit shall be brought upon a contract for the disposition of an interest in land unless; the contract upon which the suit is founded is in writing, signed by all the parties, and the signature of each party signing has been attested by a witness who is present when the contract was signed. 30.Specifically, the provision of Section 3 (3) of the Contract Act provides that:-“3(3)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: 31.The above statement of the law has been endorsed in numerous judicial pronouncements in literally all jurisdictions of the world to the extent it can safely be said that it has acquired the singular distinction of the force of law. 32.The Court has carefully perused the sale agreement produced as Exhibit by the Respondent and noted that the same is in writing and is signed by the parties. It thus met the requirements of Section 3(3) of the Contract Act. Further the agreement for sale contains the names of the parties, the description of the property, the purchase price and the conditions thereto. A look at the said sale agreement confirms that the same is a valid sale agreement which is enforceable by the parties 33.There is no doubt that the agreement met the threshold for a valid agreement, as it was in writing, signed by the parties and attested by witnesses. Indeed to be emphaticabout execution the 1st Appellant inscribed his thumb print thereon 34.This fact can be gleaned from the evidence of the 1st Appellant , the 2nd Appellant and the evidence of the two witnesses who testified on their behalf. At the time of presenting evidence in court they asked the court to adopt all the witness statements that had been filed in court .In his statement dated 23rd September ,2023 Elijah Otieno Owino, confirms handing over the title deed to his son for purposes of subdividing the land , he also confirms that the 2nd Defendant ( now 2nd Respondent) and who is the Area Assistant chief approached him in the company of his younger son one James Aketch with the agreement that they had agreed to have the 2nd Respondent purchase a portion of suit property which devolves to the said James Aketch , that both informed him that the portion of land will be transferred to the 2nd Respondent upon subdivision of land . He says that on 26th June,2023 his son Ben Owino , who is the 2nd Appellant ,did a search and discovered that the land had been transferred on 10th November ,2022 35.He then confirms that the 2nd Respondent has commenced a flurry of activities on the suit and at the time of filing suit the 2nd Respondent was clearing the land 36.Surprisingly ,in his supplementary statement he states : ‘’ the 2nd Defendant came to my residence on 16th October ,2023 very early in the morning accompanied by my son James Aketch and told me that he was he going to process monthly stipend for the elderly popularly known as Pesa ya Wazee at Oyugi’s town. Upon arriving at Oyugi’s town, the 2nd Defendant issued me with documents and insisted that I should sign there in order to be issued with the said cash by the end of October ,2023 which money am yet to receive to date. 37.He goes on to say “the 2nd Defendant did not explain or interpreted the contents of the documents to me but only directed me on the areas I needed to execute so as to receive the said funds.I was completely shocked to learn that there are documents on the court record filed by the 2nd Defendant alleging my approval of the transfer of the suit property . 38.The 2nd Appellant in his statement dated 22nd September ,2022 says he is the eldest son to the Plaintiff(2nd Appellant ) and states the title deed was given to him, like the 1st Appellant he admitted that the 2nd Respondent was in occupation . 39.In his further statement the 2nd Appellant on 16th October ,2023 states that the1st Plaintiff came back with ink all over his hands and fingers and when asked he said the 2nd Defendant and his son ,James Aketch told him to execute certain documents 40.Richard Aduol Atieno who testified as PW3 also adopted his statement . At the tail end of his statement he states:“I wish to categorically state that the transfer of parcel of land TITLE DEED EAST KARACHUNYO SEKA /1274 measuring approximately 0.34 Ha situate in KAMSER SEKA (the suit property ) from the 1st Plaintiff to the 2nd Defendant was pure work of fraud perpetuated by the Defendants taking advantage of the 1st Plaintiff who is taken to heavy intoxication most of the time. 41.Though the 1st Appellant denies entering into an agreement he admits having an interacted with the 2nd Respondent. He says he was taken to Oyugis to sign documents but was never given a copy. In cross exam he admits signing what he did not know. He says he lodged a complaint with the DCI after filing suit and that he is not aware his complaint was dismissed. He also admits marrying a 2nd wife. The 2nd Appellant says he does not know what transpired at Oyugis. It is on record that the 2nd Respondent entered into a sale agreement of the suit land, paid the full purchase price, took possession and is still in possession. The 1st Appellant has made a vein attempt to deny that he entered into the sale agreement, what he claims is that he was duped into believing that he was be in paid stipend for old people was coerced into selling the land and he signed strange documents. He confirmed that the 2nd defendant started ploughing the land though the son had the title. 42.The 2nd Respondent called witnesses who gave account of what transpired on the material day as to where and how money was paid and the 1st Appellant who was in his right state of mind affixed his thumb print on the agreement willingly, without any inducement or coercion. 43.The said 2nd Defendant (Respondent) also availed copy of minutes of a meeting held at Chief’s s Office Rambira , the minutes being a land issue between Ben owino Otieno , Elijah Otieno and Japheth Nyaoke on 13/7/2023 whereby Elijah Otieno Owino admitted selling the land to Japtheth Nyaoke so as to solve dowry issues , he stated that he lost his title deed and made an application to the Registrar of Lands , Rachuonyo to gazette it and issue a new one . 44.James was also present and confirmed that his father was selling land to enable him pay dowry for his wife Nyar Kisa. 45.It is instructive to note that it is the 2nd Appellant who made the complaint to the chief’s office . His statement was that his father had been coerced by the buyer to sell the land and that he was willing to refund. Infact at the end of the deliberations Ben Owino indicated his acceptance and willing to refund the money on or before the 7/8/2013 on current valuation failure to which the 2nd respondent will be free to use the land. 46.It is surprising that the 1st Appellant made a u-turn on the sale of land after he appeared in court yet at the chiefs office he had admitted selling the land willingly. I also note that in the proceedings in court it is noted that he had appeared before another Advocate and signed documents of his intention to withdraw the case but shortly after changed his mind again. 47.The Learned trial Magistrate had an opportunity of observing the demeanor of all witnesses before him and based on the evidence before him came to the conclusion that the 1st Appellant had actually sold the land but changed his position due to pressure from his eldest son . 48.Though the 1st Appellant and his witnesses alleges to some extent that he was coerced and forced to sign the agreement under duress it was incumbent upon the 1st Appellant to demonstrate that he was forced to enter into the agreement against his free will through threats, intimidation, or unlawful pressure, rather than acting voluntarily. There was no evidence to show that he was threatened or put under pressure to enter into the agreement. 49.Duress is broadly defined in Black’s Law Dictionary, 8th edition as: “a threat of harm made to compel a person to do something against his/ her will or judgment “and strictly, as: “the physical confinement of a person or the detention of a contracting party’s property.” 50.Similarly, the particulars of duress, coercion, and undue influence must be pleaded and proved by a party alleging them as was held in the case of Mohamed Ahmed Abdun & another v Mini Bakeries (MSA) Limited [2019] KECA 341 (KLR). The 1st Appellant attempted to lay blame on the Respondents at paragraph 10 of the Plaint where he listed some particulars of intimidation, black mail, threats and fraud but did not back it up with evidence and proof of the duress and coercion. 51.In the case of John Mburu vs. Consolidated Bank of Kenya [2018] eKLR, the Court of Appeal echoed the words of the Privy Council in Pao on vs. Lau Yiu Long [1980] A.C. 614 that in determining whether duress is established:“Duress, whatever form it takes, is a coercion of the will so as to vitiate consent. Their Lordships agree that in a contractual situation commercial pressure is not enough. There must be present some fact on which could in law and be regarded as coercion of his will so as to vitiate his consent…In determining whether there was coercion of will such that there was no true consent it is material to enquire whether the person alleged to have been coerced did or did not protest; whether, at the time he was allegedly coerced into making the contract, he did or did not have an alternative course open to him such as an adequate legal remedy, whether he was independently advised; and whether after entering the contract he took steps to avoid it.”The court finds that the Appellant entered into the sale agreement willingly, without duress and therefore the same was valid and enforceable.Having found that the sale agreement dated 12th April ,2022 and the other one undated , between the 1st Appellant and the 2nd Respondent was valid, entered into voluntarily, met the threshold of a land sale agreement, the Plaintiff having paid the full purchase price and given possession by the 2nd Respondent and does not suffer from any defects, is the Appellant entitled to the reliefs sought?The allegations of duress were an afterthought which should not be used as a gimmick to deny the 2nd Respondent of the land that he bought, paid for and is in occupation of. The 1st Appellant cannot have his cake and eat it. He cannot be allowed to keep the 1st Respondents money and the land. 52.Furthermore, Courts cannot rewrite the contract between parties, its sole duty is to interpret the contract as is and gauge the intention of the parties. In the holding in Pius Kimaiyo Langat v Co-operative Bank of Kenya Limited [2017] eKLR it was rendered that:“We are alive to the hallowed legal maxim that it is not the business of courts to rewrite contracts between parties. They are bound by the terms of their contracts, unless coercion, fraud or undue influence are pleaded and proved.” 53.The doctrine of proprietary estoppel applies to the current case as the Appellant cannot be allowed to keep the money and the land having entered into an agreement and allowed the defendant to take possession of the suit land. See the case of William Kiptarbei Korir & 6 Others —VS Danson Muniu Njeru (2018) eKLR where the judges held that: -“This is a case where the deceased by a written agreement sold the entire land to three joint purchasers including the 1st and 2nd appellants, received the purchase price, gave each vacant possession and left the land, the deceased in addition obtained the consent to sub-divide the land pursuant to the agreement but died before he transferred the land.The 1st and 2nd appellants settled their families on respective portions and each developed the land by building dwelling houses. By the time the respondent filed a suit for eviction, each of the 1st and 2nd appellants had been in possession of the land for over ten years.It is clear that the deceased and the 1st and 2nd appellants had common intention that each purchaser would get the interest purchased. The doctrine of constructive trust applies in those circumstances. Moreover, the deceased by a written agreement made representation to each of the 1st and 2nd appellants that they would get an interest in land and each acted to his own detriment by settling the family on the land and developing the land. Similarly, the doctrine of proprietary estoppel applies in those circumstances.” 54.Further in Halsbury’s laws of England Vol. 16 (2) 4th Ed. Re-issue state at para 1089: states that:“Unlike other kinds of estoppel, proprietary estoppel may be a cause of action but only where it involves the promise of an interest in land. " 55.Section 28 (b) of the Land Registration Act, provides for trusts as overriding interests to which registered land is subject. See the case of Mwangi & another —vs — Mwangi (1986) KLR 328, where 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; the absence of any reference to the existence of a trust in the title documents does not affect the enforceability. Further as was stated by Lord Reid in Steadman — vs- Steadman (1976) AC 536, 540,“If one party to an agreement stands by and lets the other party incur expense or prejudice his position on the faith of the agreement being valid he will not then be allowed to turn around and assert that the agreement is unenforceable" 56.The Court in the case of Gabriel Makokha Wamukota v Sylvester Nyongesa Donati [1987] eKLR, saying:-‘…an obviously unhappy Apaloo JA captured the injustice visited on purchasers in interpreting situations such as presently before us as voiding the contract of sale of land on the basis that Land Control Board consent has not been obtained. In that case, the original owner of the land, one Ismael Machio, had sold it to the respondent, then he reneged on the sale on the basis that Land Control Board consent had not been obtained. He then sold it to the appellant and, together, they applied and obtained consent, and the land was transferred to the appellant. The High Court ruled in favour of the initial purchaser, and the appellant, the subsequent purchaser in whose name the land had been registered appealed. In his decision, Apaloo JA observed as follows:“In a contest of title between Machio and the respondent, if the latter sought to rely on the Land Control Act to defeat the sale he himself made, it would seem to me perfectly legitimate to reply that it would be contrary to good conscience for him to be permitted to do that. He ought not to be allowed to use an Act of parliament as a vehicle for fraud. If that argument could properly be made against Machio, it can, in like manner be made against the appellant, who as the judge found colluded with Machio to purchase the land.” 57.In the case of Muhia & another v Dellian Langata Limited & another (Environment & Land Case 30 of 2016) [2023] KEELC 22229 (KLR) (14 December 2023) (Judgment) the court held:Despite the conflicting positions taken by the Plaintiffs on the issue of LCB Consent, there are court decisions which have held that lack of LCB Consent cannot be the sole reason to deny parties their rights under the Sale Agreement, an obligation of the 1st Defendant. Further, the 1st Defendant on its part cannot honestly claim to have come to court with clean hands. To start off, the 1st Defendant’s position on whether its entire property was eventually auctioned off is shifty at best. The property was either auctioned or it was not, there can be no two ways about it, and the 1st Defendant as the registered owner should know this. DW1 stated in her testimony on one hand stated that the entire property was sold by auction to the highest bidder at KShs. 40 Million. She then reneged on this testimony and said that the auction did not take off. It is also noteworthy that L.R 3591/22 is registered in the plaintiff’s name confirming that the whole property was not auctioned 58.In Aliaza v Saul (Civil Appeal 134 of 2017) [2022] KECA 583 (KLR) (24 June 2022) (Judgment) the court held that:“Then there will be situation in which the seller, as in this case, enters into a sale agreement with a purchaser, receives the full purchase price and gives vacant possession of the land to the purchaser, yet declines to apply for Land Control Board consent. As the prescribed form for applying for Land Control Board consent, Form 1 in the Schedule to the Land Control Regulations, 1967, indicates, both the proposed seller and purchaser must sign the application for consent. If the seller decides not to apply for consent, then such consent has not been ‘refused’ within the meaning of section 9(2) of the Act, for the appropriate authority under the Act, the area Land Control Board, has not had an opportunity to consider and grant or refuse consent on the grounds set out in the Act. 45.In Peter Karanja Mungai v Daniel Njoroge Kamau & 2 others [2005] KEHC 1232 (KLR) Justice J B Ojwang as he then was held while handling a similar issue mad this crucial observation:“The 1st defendant ought to have been advised by his advocates that nemo dat quod non habet : the moment he committed himself by agreement to sell the suit land to the plaintiff and had received part-payment of purchase price, and he had facilitated Land Control Board consent to the transaction, he had nothing else to sell to the 3rd defendant, and he would be liable for breach of contract if he sold the selfsame land to a different party. Evidence shows that upon the contract between the plaintiff and the 1st defendant being entered into, the plaintiff took possession of the suit land. He was, therefore, in lawful occupation, and he could not be forced out, or part of his possession confiscated except through the law. It follows that when the 3rd defendant forced his way into the suit land and occupied 1½ acres thereof, this was wrongful. No equitable principle either, can give validity to the 3rd defendant’s usurpation; for equity follows the law; the law was already in favour of the plaintiff; the 3rd defendant, even where he be clothed with equity, could not supplant the plaintiff’s legal rights in contract and of occupation. From the evidence, I am persuaded that the monies paid to the 1st defendant by the plaintiff had nothing to do with a personal loan; it was in part-payment of the purchase price for the suit land and nothing else. The 1st defendant, in my assessment, and in particular from his deportment and demeanour as a witness, and from the inconsistencies and omissions in his testimony, was not a truthful witness on the most vital issues. It is clear that he was involved in a fraudulent scheme to maximise his gains from one and the same parcel of land, by pretending to sell it to different purchasers. His conduct was, in my judgment, opportunistic and grossly unethical, meriting condemnation by this Court. 59.The court of Appeal in Mwaringa v Waashe (Civil Appeal E012 of 2022) [2025] KECA 297 (KLR) (21 February 2025) (Judgment) made this observation in respect of contracts to land:“The reason why parties intending to enter a contractual relationship reduce contracts in writing is to affirm the terms to be the exclusive memorial of the parties, and to lend certainty. Parties enter into a contract so that none reneges on it, especially in the event of change of mind or other circumstances, such as the death of one of the parties. A contract or agreement is a testament of a commitment to do something out of one’s volition. Once parties enter into a contract, there is no room left for them to introduce extrinsic evidence to add or modify the contract which, for all intent and purposes, is inadmissible. Any change that may be introduced to the contract must, just as in the making of the contract, be done by mutual agreement of the parties to the contract. It is presumed that a party has candidly thought through the terms on which it intends to enter into the agreement, so much so that a late introduction of conditions that were not contained in the agreement/contract become unacceptable and unenforceable, unless such variation is mutually agreed in writing.We agree with the findings of the learned Judge that the claims of coercion and duress were not particularly pleaded and proved in evidence as is required under Order 2 Rule 10(1) (a) of the Civil Procedure Rules, 2010 which provides that: 1.Subject to subrule (2), every pleading shall contain the necessary particulars of any claim, defence or other matter pleaded including, without prejudice to the generality of the foregoing-a. particulars of any misrepresentation, fraud, breach of trust, wilful default or undue influence on which the party pleading relies; 60.In consideration of the above reasoning, this court notes that from the surrounding circumstances and the 1st Respondents own admission before the Chief’s office there is no doubt that an agreement was duly executed in the presence of attesting witnesses. Money also exchanged hands and therefore the 1st Appellant willingly. presented the transaction before the land control board for transfer and subsequently a title deed was issued in the names of the 2nd Respondent 61.The Appellants also confirm that the 2nd Respondent is and remains in possession of the land. It is worth noting that the Appellants availed photos which support the fact of occupation and development of the land by the 2nd Respondent. 62.The Appellants have challenged the two agreements produced by the 2nd Respondent in support of his defence which reflect nil balance. The appellants argue that 2nd respondent a duty of proving the validity of the said agreements and payment of consideration. In Counsels view the agreements are void ab initio. 63.Counsel goes on to argue that the 2nd Respondents testimony on the number of agreements executed contradicted his own witnesses’ evidence in terms of number of agreements and consideration paid. 64.While relying on precedence he submits that since parties have deviated from their pleadings , and in absence of credible supporting evidence the sale agreements are rendered invalid. 65.This Court is therefore enjoined to ascertain the intention of the parties from the terms of the contract. 66.In the case of Portgieter...Vs...Stumberg & Another (No.2) 1972 EA 370, the Court held that:- “The court ascertains the intention of the parties from the term of the contract, the conduct of the parties and the circumstances of the case”. 67.Further in the case of Luluma...Vs...Coffee Marketing Board (1970) EA 155, the Court held that:- “No term should be implied in a contract unless it was intended”. 68.In the case of Javid Iqbal Karim & another vs Ze yan Yang 2018 KEELC 4883 while considering two agreements in ascertaining the intention of the parties the court made this remark:“The interim agreement referred herein by the parties meant that it was a temporary agreement and a final agreement was to be entered. Indeed a final agreement was drawn and entered on 1st March 2004. However, the second sale agreement did not clearly state that it superseded the earlier agreement dated 4th February 2004. The Court finds that there are two agreements herein which are to be read together over the sale of the suit property.The Court will rely on the case of National Bank of Kenya Ltd...Vs...Pipeplastic Samkolit (K) Ltd & Another, Civil Appeal No.95 of 1999, where the Court held that:-“A court of law cannot re-write a contract between the parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleased and proved”.The Court finds that the parties herein entered into two agreements, interim agreement dated 4th February 2004 and 2nd sale agreement dated 1st March 2004. Since the second sale agreement did not explicitly state that it superseded the interim agreement, the Court finds that the parties herein are bound by the two agreements entered by the parties herein on separate dates over the same suit property but involving the same parties. 69.I have gone through the two agreements I note that the 1st Agreement contains the cost of the land which was agreed at Kshs 200,000/= it indicates the plot number but has no acreage being sold but indicates a deposit of Kshs 100,000/= and a balance to be paid later. The said agreement bears the name and signature of Elijah Otieno Owino,the name and thumbprint of James Aketch Owino and thumbprint, the name of Robert Ouko Owino minus the thump print and the buyer’s witnesses. Apparently, the name of the buyer is missing. 70.In view of the missing link would you term the said document to be a sale agreement. The answer is that it does not meet the bare minimum of being classified as an agreement. It appears the document was prepared by the 1st Plaintiff or either of his cronies to hookwind the court into believing that there were two conflicting sale agreement. A closer scrutiny shows as 17/5/2023 while the 2nd Agreement was executed on 17/4/2022 the difference being one year apart. 71.Regarding the 2nd agreement whose date I have referred to above, the same is detailed and meets the criteria of strictly speaking a sale agreement. It contains the name of both the seller and purchaser; it contains the Hectares being sold and indicates the full amount received. 72.The said agreement is executed by witnesses from both ends and duly attested by the Area chief by signing, stamping and dating. 73.What is interesting is that the agreement was executed by the sons to the 1st Appellant, namely James Aketch Owino and Robert Ouko Osano. 74.Not standing that Robert Witnessed the agreement he had the temerity to appear in court where he testifies as Pw4 and tells the court that the land was stolen. Infact he changes tact by saying he never witnessed the agreement. 75.Counsel for the Appellant has strongly submitted that Pw4 Robert Ouko expressly denied having witnessed any sale agreement between the 2nd Respondent and 1st Appellant save that the only agreement that he signed was one in which James Aketch received consideration. He argues that going by precedent since PW4 disowned the attestation, the validity of the agreement is impeached. 76.He goes on to state, which is rightly so that the 2nd Respondent testified that the first purported agreement was fully paid while the 2nd purported agreement justification was that the 1st Appellant needed more money. 9.In my view, and having perused the said agreement s, I find the explanation by the 2nd Respondent honest, frank and credible taking into Account that the document that was signed one year after was merely an acknowledgement, which was the intention of parties 78.However, I wholly disagree with submission by Counsel that PW4 never attested the 1st agreement as he has denied in his testimony. Denying that he never attested the document is neither here nor there as his name, Id and Left thumb print appear on the document. When he appeared in court, he never discharged the burden of explaining how he his name appeared on the document. He has not stated that his details were forged and a report was made to the Police on his fingerprint being forged. 79.Probably he may be confusing the two documents deliberately and this is for the reason that in the acknowledgment dated 17/5/2023 his name and ID are noted but his signature and thumb print are missing. 80.It is my finding the Appellant and has witnesses are ones who digressed from the pleadings and evidence just to make out a case that there was no transaction at yet there was. 81.The truth has come out from the evidence of the 2nd Respondent and his witnesses, and documentary evidence originating from the 1st and 2nd Appellant’s repository which has betrayed their position. 82.Even if say for instance there were two agreements both would have either been valid or invalid depending wholly on the intention of parties 83Dr Lucas D Shallua, a professor, entrepreneur and author once said“’Betrayal is the ultimate act of cowardice. It takes courage to be honest but it takes courage to deceive. It is a choice, not a mistake. It’s a conscious decision to put self-interest above loyalty and truth”. 84.The Appellants are the ones who had alleged that there no agreement or properly executed agreement. They had the onus of proof as provided by Section 107 of the Evidence Act which provides: -1.Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist?2.When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. 85I totally agree with the holding in the case of Nelson Kivuvani...Vs...Yuda Komora & Another, Nairobi High Court Civil Case No.956 of 1991 (1991) LLR 7670 (HCK), where the Court held that: -“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”. 86.In the case of Caliph Properties Ltd...Vs...Barbel Sharma & Another (2015) eKLR, where the Court relied on the case of Kenya Breweries Ltd...Vs...Okeyo (2002) 1EA and held that: -“It is trite that a contracting party who fails to perform his part of the contract cannot obtain an injunction to restrain a breach of covenant by the other party”. 87.In the case of Kyangaro ...VS... Kenya Commercial Bank Ltd & Another (2004) 1KLR 126, where the Court held that: -“…. he that comes to equity must come with clean hands and must do equity. The conduct of the Plaintiff in this case betrays him. It does not endear him to equitable remedies. He who comes to equity must fulfill all or substantially and all the outstanding obligations before insisting on his rights. The Plaintiff has not done that. Consequently, he had not done equity”. 88.Based on the above analysis I reject the argument that there was no validcontract between the 1st Appellant and the 2nd Respondent has objected , I find the photos were produced after his objection has refused. 89.Regarding production of Photos, I find that both the Appellants and the Respondent produced photos in support of their positions. The Appellant produced photos to show that the 2nd Respondent is in occupation while the 2nd Respondent produced photos to show that an agreement had been done. Though Counsel for the respondent has objected, I find the photos were produced after his objection was refused. 90.Regarding the documents allegedly sneaked in through filing of supplementary submissions I confirm from the record that there are documents which the 2nd respondent attempted to introduce before the Lower court and which application was refused. It is therefore misguided and an act of bad faith to introduce the documents at this stage. I will expunge the new documents save for the photos which were referred to in the lower court and properly admitted in evidence. 91.I now proceed to address the plea made for cancellation of the title issued to the 2nd Respondent based on fraud and whether the 2nd Respondent is a bonafide purchaser. 92.It is trite in law that allegations of fraud are serious and must be strictly proved. Section 26(1) of the Land Registration Act, No. 312 sets out the principle of indefeasibility of title and its exception by providing as follows:“The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—(a)on the ground of fraud or misrepresentation to which the person is proved to be a party; or(b)where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.” 93.In Kinyanjui Kamau v George Kamau [2015] eKLR, the Court of Appeal held as follows with regards to fraud allegations: “It is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo v Ndolo (2008) 1 KLR (G&F) 742 wherein the Court stated that:“...We start by saying that it was the respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him. Since the respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities; but the burden of proof on the respondent was certainly not one beyond a reasonable doubt as in criminal cases...”” 94.Equally relevant is the doctrine of the bona fide purchaser for value. In Katende v Haridar & Company Limited [2008] 2 EA 173, the Court of Appeal for Uganda defined a bona fide purchaser thus:“For the purposes of this appeal, it suffices to describe a bona fide purchaser as a person who honestly intends to purchase the property offered for sale and does not intend to acquire it wrongly. For a purchaser to successfully rely on the bona fide doctrine, (he) must prove that:(a)he holds a certificate of title;(b)he purchased the property in good faith;(c)he had no knowledge of the fraud;(d)he purchased for valuable consideration;(e)the vendors had apparent valid title;(f)he purchased without notice of any fraud; and(g)he was not party to any fraud.” 95.It is worth stating that the doctrine of bona fide purchaser is premised on equity. A purchaser who acquires title without notice of fraud or illegality and who has paid valuable consideration ought to be protected. But once a purchaser is shown to have participated in or had knowledge of the fraud, the protection dissipates. 96.Applying these principles to the instant case, the record shows that the 2nd respondent had already executed a sale agreement with the 1st Appellant and paid the entire purchase price, and taken possession of the suit property. This is confirmed by the Appellant who availed photos confirming that the 2nd Respondent is in possession The Respondent’s occupation and developments on the land constituted ‘constructive notice’ to any prospective purchaser.No purchaser can claim to be bona fide when they ignored or failed to inquire into the rights of parties in possession. Indeed, a person who purchases land which he knows to be in occupation of another person, other than the vendor, without making inquiries from such occupant, cannot be said to be a bona fide purchaser without notice of the rights of the said purchaser……” 97.The evidence on record demonstrates that the transfer of the suit property to the 2nd respondent tainted with fraud or, at the very least, was not unprocedurally procured in disregard of the laid down norms. 98.In Clark v Njoroge & 3 others (Civil Appeal 340 of 2019) [2026] KECA 718 (KLR) (10 April 2026) (Judgment) the Judges of the Court of Appeal held thus:‘’As regards the first issue, the appellant’s title to the suit property way back in 1994 was not disputed as the genesis of her claim. The real contest concerns the alleged transfer of the suit property to the 1st respondent on 6th June 1995. Before the trial court, the appellant consistently maintained that she never sold or transferred the suit property to the 1st respondent and that the original certificate of lease remained in her custody through her advocate. Significantly, the Land Registrar who testified as DW3 produced the registry records and confirmed that although the green card reflected a transfer from the appellant to the 1st respondent, the parcel file did not contain any transfer instrument evidencing such transfer. In our view, that evidence was of considerable probative value as it emanated from the legal custodian of land records and went directly to the question of how the property was allegedly divested from the appellant. 99.Case of Nguku v Republic [1985] eKLR where the Court stated as follows;“Where a party fails to produce certain evidence, a presumption arises that the evidence, if produced, would be unfavourable to that party; this presumption is not confined to oral testimony but can also apply to evidence of tape recording which is withheld.” 100.Though the Appellant alleges that the Land Registrar never appeared they had a responsibility of taking out witness summons, serve then avail an affidavit of service. In the event the Registrar or any officer from the Land office was reluctant to attend so as to produce records, still they had an opportunity of applying for warrants of arrest which was not done. 101I find that failure to produce records from the land’s office militates against the Appellants, and the presumption is that the said evidence would have been adverse to the Appellants case.In Mwaringa v Waashe (Civil Appeal E012 of 2022) [2025] KECA 297 (KLR) (21 February 2025) (Judgment) made this observation in respect of contracts to land the Court of above agreed with the holding of the Learned Trial Judge that the that the claims of coercion and duress were not particularly pleaded and proved in evidence as is required under Order 2 Rule 10(1) (a) of the Civil Procedure Rules, 2010 102.I have gone through the Plaint the Appellant has pleaded and particularized the complaint against the Respondents, inter- alia: -Publishing a gazette notice without an application for the same from the 1st Plaintff -Initiating transfer of the suit property from the Plaintiff without submitting form LRA 33 - Tempering (sic) with the official survey map - Colluding with unknown person and or fraudster to unlawfully deprived the Plaintiff of his property - Permitting the unknown person and or fraudster to intimidate, blackmail and threatened(sic) the Plaintiffs with physical harm in the event the Plaintiff forceful occupation of his property 103.At paragraph 11 the Plaintiff sums up what is pleaded above thus: the Plaintiff’s case against the Defendants is the action of gazettement and transfer of TITLE DEED, EAST KARACHUONYO/KAMSER SEKA /174 of the same to the 2nd Defendant complained of were fraudulent and unlawful activities. 104.Since it was the Appellants who were complaining about the whole process of survey, transfer and registration of title it was an onerous responsibility against them to avail supporting evidence. 105The Appellants had complained that the survey map had been tampered with and to prove such a fact they ought to have summoned the County Surveyor or any other surveyor versed with the record to come and testify. As regards record the Appellants ought to have summoned the County Land Registrar to avail the records, and regarding the threats and intimidation they ought to have made a report to the Police. 106.This was not done and if it was it has not been disclosed. 107.The Appellant have also not pleaded and particularized that it is the unknown person who appeared before the Land control board purporting to be the 1st Appellant. 108.The record confirms that a report was made to the Police for loss of title, which the Appellants say was made by the 2nd Respondent, I also note an application was made for replacement of certificate of title to the Land Registrar through Form LRA-12 which was accompanied by Police abstract, certified copy of id card and Passport Photos. The same was witnessed before an Advocate and duly received by the Land Registrar. The 1st appellant also swore an affidavit confirming loss of title deed 109.The Registrar did not act alone but relied on the documents to have the gazettement done. 110.The application before the Registrar was made on 19th September ,2022 and the gazettement was done on 7th October, 2022.An advert was also made in a newspaper of wide circulation 111.Application for consent was also made, consent was obtained on 8th September ,2022 and transfer was executed on 12th October ,2022. I note that the 1st Appellant and the 2nd Respondent appeared before an advocate by the name of Patrick Owiti of Post office box 413, Kisumu who signed a certificate of verification. Their respective documents including Photos are attached. 112All these have not been negated by the 1st Appellant simply because he knows which side of his bread is buttered Both the Appellants are selective and choosy in terms of the sale transaction. 113.If indeed there was no consent obtained, nothing would have been easier that the Plaintiff calling the Secretary of the relevant board to avail the minutes of the date in issue. The appellants choose to remain silent on that issue. 114.The Appellant’s counsel has challenged the title as it appears to have been been issued before consent was made. This assertion is negated by the copy of search and green card which was availed to the appellants which confirms date of registration as 10th November 2022.This is pleaded in the plaint. 115.I find that though there is an error on dates in respect of the title in my view the same is trivial does not venture in to the root of the title as under section 79 of the Registration of Land Act the Registrar has powers to correct mistakes on title. 116.As a parting shot, I find solace on the fact that duress or impropriety was not proved as against the Respondents by this observation of the court of Appeal in the case of Mwaringa vs Washe (Supra) where the court stated:“We note that one of the witnesses to the agreement of Christopher Mwaringa would have been better placed to testify on what transpired during the signing of the agreement, but was not called as a witness particularly by the Appellants that he signed the agreement under duress was not substantiated”. IV. Whether the magistrate erred in dismissing the suit 117.In my view and observation, the Learned trial magistrate did address the issue before him, especially evidence adduced by the parties. 118.The Magistrate rightly found that the Appellants had a burden of pointing out illegality and ultimately formed a picture of the 1st Appellant not truthful and credible 119.The court found that he sold land but changed his mind due to pressure. 120.The court did no wrong in dismissing the suit. 121.In the upshot I find that the appeal, lacks in merit and proceed to dismiss same with cost. 122.It is so ordered. JUDGEMENT DATED AND DELIVERED VIRTUALLY ON THIS 12TH DAY OF JUNE 2026 IN THE PRESENCE OF;1. Tonge Yoya for the Appellant, present.2. Emelda Marco for the Appellant, present for the Respondent.3. Court Assistant; Ms. Awino. JUSTICE JOHN WALTER WANYONYI JUDGE