https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4089

Onyango v Omolo (Land Case Appeal E059 of 2025) [2026] KEELC 4089 (KLR) (30 June 2026) (Judgment) Neutral citation: [2026] KEELC 4089 (KLR) Republic of Kenya In the Environment and Land Court at Kisumu Land Case Appeal E059 of 2025 E Asati, J June 30, 2026 Between Victor Omondi Onyango Appellant and Michael Ooko Omolo Respondent (Being an appeal from the judgment and decree of Hon. Benson Ireri, SPM in KISUMU MCELC/E018/2023 dated 4th June, 2025) Judgment Introduction 1.The record of appeal filed herein shows that the Appellant was the Defendant in KSM CMC E & L CASE NO. E018 OF 2023 (herein called the suit) wherein he had been sued by the Respondent vide the plaint dated 3rd March 2023. The subject matter of the suit was a parcel of land known as Kisumu/Kogony/2026, measuring 0.05 Ha. (the suit land). 2.The Respondent’s case in the suit was that the Appellant was the registered owner of the suit land, that by a land sale agreement dated 22nd October 2022, he had bought a portion measuring 0.02 Ha of the suit land from the Appellant at a consideration of Kshs. 450,000/-, which he paid to the Appellant in full, only to learn that the suit land was charged to a financial institution known as Letshego Kenya Limited, to which the Appellant still owed a sum of Kshs. 1,283,066, and pursuant to which, Letshego Kenya Limited had started issuing notices to the Appellant for the realization of the suit property. 1.The Respondent contended that the actions of the Appellant were fraudulent. He therefore sought the court’s intervention for the following relief:a.Refund of the entire purchase price of Kshs. 450,000/- with interest from 22nd October 2022 until payment in full.b.Refund of the costs of all the developments that had already been done on the parcel of land known as Kisumu/Kogony/2026.c.General damages.d.Costs of the suit and interest on (a), (b), and (c) herein.e.Any other or further relief that the court may deem fit and expedient to grant. 3.The Appellant denied the claim vide the Defendant’s Written Statement of Defence dated 27th day of March 2023. He averred on a without prejudice basis that the Respondent was aware or ought to have been aware that the property had an encumbrance of Kshs. 580,000/-; hence, the Respondent was the author of his own misfortune, having claimed to have conducted due diligence or ought to have conducted due diligence. 4.The record shows that the suit was heard before the trial court, which found that the Respondent had proved his claim and entered judgment in his favour for:-a.Refund of the purchase price of Kshs. 450,000/- with interest at court rates from 22nd October 2022 till payment in full.b.The Defendant (Appellant) to compensate the Respondent for the cost of development on the land in the sum of Kshs. 340,400/- as indicated in the valuation report dated 20/2/2023.c.General damages of Kshs. 150,000/- for misrepresentation.d.Costs of the suit and interest. The appeal 5.Aggrieved by the judgment, the Appellant preferred the present appeal vide the Memorandum of Appeal dated 1st July 2025 on the grounds that: 1.The learned trial Magistrate erred in Law and in fact by failing to appreciate that the Respondent did not prove his case against the Appellant as required by law. 2.The Learned Magistrate erred in law by failing to appreciate that the firm of M/s Otieno & Achieng Advocates were conflicted in the matter given that it was the one that prepared and witnessed the purported sale agreement between the parties herein which gave rise to the suit before it and therefore could not represent one of them, which act was in violation of the provisions of section 134 of the Evidence Act read together with Rules 9 and 6 of the Advocates (Practice) Rules. 3.The Learned trial Magistrate erred in law by awarding costs of development which were not specifically pleaded and proved as special damages as required by law. 4.The learned trial Magistrate erred in law by failing to appreciate that the Respondent did not prove the elements of fraud alleged in the plaint as required by law. 5.The learned trial Magistrate erred in law and in fact by failing to appreciate that the Respondent entered into and executed the said sale agreement willingly and knowingly that the suit land was a subject of a Charge to a financier and that there was an outstanding loan arrears and as such, the Appellant was not legally capable of selling the same to him but accepted to buy the same thereby was guilty of the doctrine of ex turpi causa non oritur action. 6.The Learned trial Magistrate erred in law by failing to appreciate that the Appellant had a good defence against the Respondent. 7.The learned trial Magistrate erred in law by failing to indicate where it was delivered, dated, and signed as required by law. 6.The Appellant sought orders that the appeal be allowed with costs and that the judgment issued by the learned trial Magistrate dated 4/6/2025 be set aside and substituted by a judgment dismissing the Respondent’s suit with costs. Submissions 7.Pursuant to directions given on 24th March 2026, the appeal was to be heard by way of written submissions. 8.None of the parties filed written submissions on the appeal within the given timelines or at all. Analysis and determination 9.This being a first appeal, this court has a duty to consider the whole evidence produced before the trial court and re-evaluate it, keeping in mind the fact that the trial court had the advantage, which this court does not have, of seeing and hearing the parties and their witnesses first hand, as held in Gitobu Imanyara & 2 others –vs- Attorney General [2016]eKLR, that the principles upon which a first appellate court proceeds are well settled and that“Briefly put, they are that this court must 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.” 10.Guided accordingly, I proceed to determine the issues raised in the grounds of appeal. The first ground of appeal is that the trial Magistrate erred in law and in fact by failing to appreciate that the Respondent did not prove his case against the Appellant as required by law. 11.The proceedings show that the Respondent testified as PW1. He adopted the content of his witness statement dated 3/3/2023 as his evidence in chief. 12.He produced exhibits, namely a land sale agreement, a copy of the search, a copy of the loan statement from Letshego Kenya Limited, a copy of the demand letter, a copy of the reply to the demand letter, and a copy of a valuation report. 13.In the witness statement, a copy of which is on page 9 of the record of appeal, PW1 explained the details of the transaction he had with the Appellant. 14.He stated that he had paid the purchase price in full and that while the Appellant misrepresented to him that he only owed Letshego Kenya Limited a balance of only Kshs. 190,000/=, the Respondent learnt later that the balance owing from the Appellant to Letshego Kenya Limited in respect of the loan over the suit land was Kshs. 1,283,066.84. 15.The Defendant (Appellant herein), on the other hand, adduced no evidence. 16.The trial court held that, based on the evidence produced and lack of rebuttal by the appellant, the Respondent had proved his case on a balance of probabilities. The standard of proof in a civil case is on a balance of probabilities as opposed to the proof beyond a reasonable doubt required in criminal cases. The question of what amounts to proof on a balance of probabilities was discussed in William Kabogo Gitau vs George Thuo & 2 others [2010] 1 KLR, thus;“In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In terms of percentage, a party that is able to establish its case to a percentage of 51% as opposed to 49% of the opposing party is said to have established its case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.” 17.Having considered the evidence independently, I find that the Respondent proved his case to the required standard, save for the claim for compensation for developments made on the suit land, which shall be addressed herein later. I find so because the land sale agreement proved the existence of the sale transaction between the parties and the payment of the purchase price. The copy of the loan statement from Letshego Kenya Limited proved that the balance of the loan was still outstanding; hence, the appellant could not be able to perform the agreement unless he repaid the loan. 18.The trial court did not err in finding that the Respondent had proved his case on a balance of probabilities. 19.Ground 1 of the appeal, therefore, fails. The second ground of the appeal challenged representation of the Respondent by the firm of Otieno & Achieng Advocates whom according to the Appellant was conflicted in the matter given that it was the firm that prepared and witnessed the purported sale agreement between the parties herein which gave rise to the suit before it and therefore could not represent one of them, which act violated the provisions of Section 134 of the Evidence Act read together with Rules 9 and 6 of the Advocates (Practice Rules). 20.A copy of the agreement produced as Exhibit by the Respondent during the trial is on pages 13 to 16 of the Record of Appeal. It shows that the signatures of the signatories to the agreement were attested by Ruth A. Otieno, Advocate. Clause 4 of the agreement provided that the Advocates for the parties were Otieno & Achieng Company Advocates. 21.The record shows that it was the firm of Otieno & Achieng Advocates who drew and filed the plaint and represented the Respondent at the inception of the suit before the trial court. It further shows that the Appellant raised the issue of representation vide paragraph 11 of the Defendant’s Written Statement of Defence that:“The Defendant puts the plaintiff on Notice that he shall make an application at the earliest opportunity possible to have the firm of Otieno & Achieng Advocates to cease acting for the plaintiff since the said firm of Advocates and in particular Miss RUTH A. OTIENO ADVOCATE is conflicted having drafted the impugned agreement for the alleged sale of the suit land and having acted for both parties herein in the said transaction.” 22.Perusal of the proceedings shows that on 19/4/2023, Counsel appearing for the Defendant (Appellant herein) informed the court that he intended to file an application to remove the Plaintiff’s advocates from the record as they were conflicted. The proceedings further show that on 11/5/2023, when the matter came up for mention, Counsel appearing for the plaintiff (Respondent herein) informed court that there was a Notice of Change filed by the firm of Mwalo Advocates, and the court proceeded to fix the matter for hearing at the instance of the Appellant’s advocate. 23.Perusal of the trial court’s record shows that a Notice of Motion application dated 3rd May 2023 had been filed on behalf of the Defendant (Appellant herein) seeking, inter alia, that an order be issued barring the firm of Otieno & Achieng Advocates from representing the Plaintiff (Respondent herein) and that the documents filed by the firm of Otieno & Achieng Advocates be expunged from the record. 24.The trial court’s record also contains a Notice of Change of Advocates dated 8th May 2023 filed by Khasiala Mwalo Adwar & Company Advocates, taking over the conduct of the matter on behalf of the Plaintiff (Respondent) from the firm of Otieno & Achieng Advocates. The same was received in court on 8th May 2023. 25.It appears that after the Notice of Change of Advocate was filed, the Appellant ceased his pursuit to have the application heard and abandoned his objection on the representation of the Respondent because the proceedings do not show that the matter was ever raised again. 26.The record shows that the appellant thereafter participated in the trial to the end. 27.Having abandoned the objection on the issue of representation before the trial court, the Appellant is estopped from raising it on appeal. 28.It has not been demonstrated that any prejudice or miscarriage of justice resulted to the Appellant by reason of the facts complained of. 29.I find that this ground of appeal has not been proved. The next ground of appeal faults the trial court for awarding costs of development, which was not specifically pleaded and proved as special damages as required by law. 30.In paragraph 8 of the plaint, the Respondent pleaded that by reason of the actions of the Appellant, he had suffered immense damages and colossal loss of the purchase price together with all the developments that he had already made on the said parcel of land. In prayer 2 of the plaint, he sought an order for refund of the costs of all the developments that had already been done on the parcel of land known as Kisumu/Kogony/2026. 31.No particulars of the development were pleaded in the plaint. The amount of the cost of the said developments was also not pleaded. 32.The evidence of the Respondent, as contained in his witness statement dated 3rd March 2023, was that after the purchase of the land, he went ahead and fenced the said parcel of land on which he built a semi-permanent structure. 33.In response to these, the Appellant denied these claims. He stated in paragraph 10 of his written statement of defence that the impugned agreement did not allow the Respondent to take possession of the suit land, wherefore his illegal entry amounted to trespass, and that he cannot benefit from his own wrongdoing. That the agreement did not provide for immediate possession. 34.I have read the agreement dated 22nd October 2022. Clause 13 thereof provided that:-“The Vendor shall give vacant possession to the purchaser immediately after receiving the deposit.” 35.Clause 1 of the agreement was partly to the effect that the entire of the purchase price was paid at the execution of the agreement in cash, and that receipt thereof was acknowledged. 36.It is not correct, therefore, that the Respondent’s entry onto the suit land was unlawful or amounted to an act of trespass. The entry had been provided for and allowed by the agreement. 37.The only issue that arises is whether or not the Respondent was entitled to the amount of the cost of development, which was not pleaded and specifically proved. 38.The starting point is that parties are bound by their pleadings, and evidence adduced during trial can never take the place of pleadings but is meant to prove what is pleaded. 39.Secondly, it is trite that special damages must be specifically pleaded and proved. The claim for refund of the cost of developments was a claim for special damages. The amount claimed was known at the time of filing suit because the valuation report, which contained the amount of the cost of developments, was made on 20/2/2023, before the suit was filed on 6/3/2023 40.It is true that the sum of Kshs. 340,400/= awarded to the Respondent as compensation for the developments was not pleaded in the plaint or mentioned in the Respondent’s witness statement, or in his testimony in court. 41.The amount only appears in the valuation report, which was produced as Exhibit P6. There was no nexus established between the plaint and the valuation report. 42.I find that the trial court erred in allowing the claim for the cost of developments, which was not pleaded, yet it was in the nature of special damages. 43.Ground 3 of the appeal succeeds. The next ground of appeal faults the trial court for failing to find that the Respondent had not proved the element of fraud alleged in the plaint as required by law. 44.It was pleaded in paragraph 7 of the plaint that the actions of the Appellant were fraudulent. The particulars of fraud were itemized asi.Fraudulently misrepresenting to the plaintiff that the land parcel number Kisumu/Kogony/2026 had a loan of Kshs. 290,000/=, which he was going to settle immediately he was paid the purchase price, yet the land had a loan of Kshs. 1,283,006/-ii.Fraudulently misrepresenting to the plaintiff that he was going to clear the loan once paid, knowing very well that he was not going to do that.iii.Fraudulently selling the land parcel number Kisumu/Kogony/2026, knowing very well that the said land had a loan which he had failed to service, and the same was in the process of realization to recover the said loan by Letshego Kenya Limited. 4.5The record shows that while the agreement mentioned nothing about the loan with Letshego Limited, the Respondent produced a statement from Letshego Limited that showed that there was an outstanding loan amount of Kshs. 1,283,006/-. There is no evidence that this was disclosed by the Appellant before or during the making of the agreement. Yet the Appellant, in the agreement in special conditions (B), undertook to deliver to the Respondenta.a duly executed transfer of property in favour of the purchaser.b.consent to transfer.c.original document of title relating to the suit property, which was in the Vendor’s (Appellant’s) possession.d.Copy of PIN Certificate of the Vendor.SUBPARAe.two coloured passport-size photographs, knowing that it was not possible to transfer the land for as long as the loan remained outstanding. 46.Fraud has been defined in Black’s Law Dictionary, 11th Edition, as;“A knowing misrepresentation or knowing concealment of material facts made to induce another to act to his or her detriment.” 47.The Court of Appeal in Vijay Morjaria vs Nansingh, Madhusingh Darbar & another [2000]eKLR held that:“It is well established that fraud must be specifically pleaded, and the particulars of fraud alleged must be stated on the face of the pleading. The act alleged to be fraudulent must, of course, be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.” 48.On the standard of proof required for claims based on fraud, courts have held that the standard of proof is higher than in ordinary civil cases. In Koinange & 13 others vs Charles Karuga Koinange 1986 KLR at page 23, the court held that:“When fraud is alleged by the Plaintiffs, the onus is on the Plaintiffs to discharge the burden of proof. Allegations of fraud must be strictly proved, although the standard of proof may not be so heavy as to require proof beyond a reasonable doubt; something more than a balance of probabilities is required.” 49.I find that fraud was not only properly pleaded but also proved to the required standard of proof. 50.Ground 4 of the appeal, therefore, fails. Ground 5 of the appeal is that the learned trial Magistrate erred in law and in fact by failing to appreciate that the Respondent entered into and executed the said sale agreement willingly and knowingly that the suit land was a subject of a Charge to a financier and that there was an outstanding loan arrears and as such, the Appellant was not legally capable of selling the same to him but accepted to buy the same thereby was guilty of the doctrine of ex turpi causa non oritur action. 51.It is clear from the exhibits placed before the trial court that the Appellant did not disclose the full extent of his indebtedness to Letshego Limited to the Respondent. 52.There is no evidence that the Appellant made any efforts to clear the loan to be able to perform his part of the agreement. Ground 6 of the appeal is that the learned trial Magistrate erred in law by failing to appreciate that the Appellant had a good defence against the Respondent. 53.The Appellant filed a defence to the Respondent’s claim. 54.The record shows that on 14/9/2023, when the Respondent closed his case, the Appellant, who was represented, prayed for an adjournment to another date for hearing of the defence case, which adjournment was allowed to 26/3/2024. 55.On 26/3/2024, the Appellant indicated to the court that he intended to settle the matter out of court and requested the court for more time because he was to start paying, but his daughter was admitted to KMTC Siaya; hence requested more time. 56.The record shows that the Appellant was then granted more time to settle the matter out of court. By 25/5/2024, the settlement had not taken place. The appellant claimed that his spouse had been involved in an accident. He was again given more time till 19/6/2024, when the matter was given a hearing date on 30/10/2024, as the parties had not reached any settlement. 57.On 30/10/2024, the hearing did not proceed, but directions were given that the hearing proceed from where it had stopped and a hearing date of 15/1/2025 was taken by consent. On 15/1/2025, the defendant failed to attend court. The court proceeded to close the defence case and gave directions on the filing of the submissions. 58.From the foregoing, it is clear that the Appellant was given sufficient time to present his defence. 59.I find that the appellant was given sufficient opportunity to be heard.Ground 6 of the appeal fails. Ground 7 of the appeal faults the trial court for failing to indicate where the judgment was delivered, dated, and signed as required by law. 60.The proceedings available in the court file show that the Judgment was delivered in open court on 28/5/2025 in the presence of representation by both parties and that Counsel for the respondent applied for an order of stay of execution, which was granted for 30 days. 61.I find that the appeal succeeds in part. 62.The portion of the judgment awarding Kshs. 340,400/- to the Respondent as compensation for developments is hereby set aside. 63.The rest of the judgment of the trial court is hereby upheld. 64.Costs of the appeal are awarded to the Respondent.Orders accordingly. JUDGMENT DATED AND SIGNED AT KISUMU AND DELIVERED VIRTUALLY ON THIS 30TH DAY OF JUNE 2026 THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM IN THE PRESENCE OF:E. ASATI,JUDGE.In the presence of:Atika Court AssistantNo appearance for the appellantMs Otieno for the Respondent.KSM ELCA E059 OF 2025 JUDGMENT Page 7