https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4764

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA** **ELC APPEAL NO. E047 OF 2024** **VINCENT WAFULA MOTOCHI……………………… APPELLANT** **VERSUS** **RICHARD AVOMBA TSIMONJELA.............. 1ST RESPONDENT** **NICHOLAS MITALO LISECHE……............. 2ND RESPONDENT** ***(Being an appeal against the judgment of Hon. R.S Kipng’eno, (PM) delivered on 20th August 2024 in Butali SPMC ELC Case No. E043 of 2021)*** **JUDGMENT** **Introduction** 1. This appeal arises from the judgment of Hon. R.S. Kipng’eno (PM) delivered on 20th August 2024 in Butali SPMC ELC Case No. E043 of 2021. In the impugned judgment, the learned trial Magistrate found that the 2nd respondent herein had purchased and taken possession of approximately two acres comprised in Land Parcel No. South Kabras/Chesero/24 from the 1st respondent in 2013, had remained in occupation thereof for over eleven years, and had substantially performed his obligations under the sale agreement. 2. The court further found that the 1st respondent subsequently resold the same portion of land to the appellant in 2021, despite being aware of the earlier transaction and without refunding the purchase price paid by the 2nd respondent. Applying the doctrines of constructive trust and proprietary estoppel, the trial court held that it would be inequitable to permit the appellant to renage from the earlier sale and consequently allowed the appellant’s claim only to the extent of ordering a refund of Kshs. 1,800,000/- together with interest, and allowed the 2nd respondent's counterclaim by directing the 1st respondent to transfer the suit property to him, and awarded costs against the 1st respondent. **Background** 1. The suit before the trial court was instituted by the plaintiff (now the appellant) vide a plaint dated 23rd September 2021 against the defendants. He pleaded that on or about 27th July 2021, he entered into a sale agreement with the 1st defendant, Richard Avomba Tsimonjela, for the purchase of the whole of Land Parcel No. South Kabras/Chesero/3285 measuring approximately 0.80 hectares (suit property) at a consideration of Kshs. 1,800,000/-­­­. That he paid the agreed purchase price but that the 1st defendant subsequently became evasive and failed to complete the transaction by transferring the property to him. 2. The appellant further stated that when he attempted to take possession of the suit property, he discovered that the 2nd defendant, Nicholas Mitalo Liseche, had erected a temporary structure thereon and had caused a caution to be registered against the title. He contended that the defendants had thereby interfered with his proprietary rights and occupation of the sui property. Consequently, he sought*, inter alia*, a declaration that he was entitled to exclusive possession and occupation of Land Parcel No. South Kabras/Chesero/3285, orders of specific performance compelling the 1st defendant to transfer the property to him, eviction of the 2nd defendant, a permanent injunction, damages for trespass, costs of the suit, interest, and in the alternative, a refund of the purchase price paid. 3. In response to the plaint, the 1st defendant filed a statement of defence dated 25th November 2021 in which he admitted entering into a sale agreement with the appellant on 27th July 2021 for the sale of Land Parcel No. South Kabras/Chesero/3285 measuring approximately 0.80 hectares at an agreed consideration of Kshs. 1,800,000/=. That he received Kshs. 1,400,000/- from the appellant by 30th July 2021 and stated that on 3rd August 2021, after receiving the payment, he applied to the Malava Land Control Board for consent to transfer the land to the appellant. He therefore prayed that the appellant’s suit be allowed, though without an award of costs. 4. The 2nd defendant also filed a statement of defence and counterclaim against the 1st defendant dated 12th October 2021. He denied the appellant’s claim and contended that he had been in occupation of the suit property since 2013. That pursuant to a written sale agreement dated 18th January 2013, the 1st defendant sold to him a portion measuring two acres out of Land Parcel No. South Kabras/Chesero/24 at a consideration of Kshs. 960,000/=, which he paid in full. He further stated that it was agreed that upon conclusion of succession proceedings relating to the estate of the 1st defendant’s late father, the 1st defendant would transfer the portion sold to him and that possession of the land had been surrendered to him immediately after the sale. 5. That he had since developed the land by constructing a house and other structures, planting trees, cultivating crops and fencing the property. He stated that the appellant was not entitled to the reliefs sought and prayed for dismissal of the suit. In his counterclaim, he sought an order compelling the 1st defendant to transfer Land Parcel No. South Kabras/Chesero/3285 measuring two acres to him, or in default that the court execute the necessary transfer documents, together with costs. 6. From the trial court record, the plaintiff and 1st defendant recorded a consent dated 17th December 2021 in which the 1st defendant admitted the appellant’s claim and agreed that judgment be entered in favor of the appellant in terms of prayers sought in the plaint. 7. The 1st defendant filed a reply to the 2nd defendant’s claim dated 8th June 2023. He admitted entering into the sale agreement dated 18th January 2013 with the 2nd defendant but contended that the agreement was subsequently cancelled due to the 2nd defendant’s failure to pay the balance of the purchase price amounting to Kshs. 660,000/-. He denied that the 2nd defendant was entitled to the suit property and maintained that the latter had voluntarily vacated the land on or about mid-2013 and that he only attempted to reclaim the property in August 2021 after learning that he had sold the land to the appellant. Consequently, he prayed for dismissal of the 2nd defendant’s claim with costs. 8. The suit proceeded to hearing through *viva voce* evidence. The plaintiff called three witnesses in support of his case whereas the defendants called a total of five witnesses. **Plaintiff’s evidence** 1. PW1 was Vincent Wafula Motochi, the plaintiff. He adopted his witness statement dated 23rd September 2021 as his evidence in chief and produced his bundle of documents as exhibits. He testified that on 27th July 2021 he entered into a sale agreement with the 1st defendant for the purchase of Land Parcel No. South Kabras/Chesero/3285 measuring approximately 0.80 hectares at a consideration of Kshs. 1,800,000/-. That he paid Kshs. 1,500,000/- towards the purchase price and thereafter expected the 1st defendant to complete the transfer process. That however, the 1st defendant became evasive and failed to attend the Land Control Board or effect the transfer. That upon visiting the land on 1st August 2021 with the intention of taking possession, he discovered that the 2nd defendant had erected structures thereon and subsequently learned that the 2nd defendant had registered a caution against the title. 2. Upon cross-examination, PW1 stated that before purchasing the property he inspected the land in the company of the 1st defendant, his wife and son in July 2021, and conducted an official search which confirmed that the land was registered in the name of the 1st defendant. He conceded that he never took possession of the land and that under the sale agreement, possession was to be granted after 240 days. He testified that when he later discovered the 2nd defendant's occupation and caution over the property, the 1st defendant assured him that the earlier sale to the 2nd defendant had been cancelled. 3. He further stated that the 1st defendant never refunded the money paid by the 2nd defendant and had not refunded the purchase price paid by him either. PW1 also testified that he reported the matter to the police, leading to criminal proceedings against the 1st defendant for obtaining money by false pretenses. On re-examination, he reiterated that he only became aware of the 2nd defendant's claim after conducting a search in August 2021 and maintained that he purchased the property in good faith after carrying out due diligence. 4. PW2 was Erick Oduor Owili, a land surveyor at Kakamega County. He adopted his witness statement dated 5th July 2023 as his evidence in chief and stated that on or about 26th July 2021, PW1 approached him seeking survey services in relation to Land Parcel No. South Kabras/Chesero/3285 prior to purchasing the property. He stated that he conducted an official search which confirmed that the land was registered in the name of the 1st defendant and was free from encumbrances. That thereafter, on 27th July 2021, he visited the suit property in the company of PW1 and the 1st defendant, carried out a survey, and confirmed that the ground measurements corresponded with the title documents and search records. He further testified that at the time of the survey he did not observe any structures on the land. PW2 added that he later assisted the 1st defendant in preparing an application for Land Control Board consent to transfer the property to PW1, but the process was not completed after the 2nd defendant lodged a caution against the title. 5. Upon cross-examination, PW2 stated that he was a qualified surveyor and had personally prepared the survey diagram produced in evidence. That he conducted the survey on 27th July 2021 but did not take photographs of the property. That at the time of the survey there were no structures on the land and that he only became aware later that there were claims that structures existed on the property. He confirmed that when he conducted the survey, he was accompanied by PW1 and the 1st defendant. 6. PW3 was Soita Imbogo Mokoi. He adopted his witness statement dated 25th July 2023 as his evidence in chief and testified that in June 2021, the plaintiff requested him to assist in identifying a parcel of land measuring at least two acres for purchase. That he identified Land Parcel No. South Kabras/Chesero/3285 belonging to the 1st defendant and established that it was registered in his name. That there were no structures, fences or developments on the land at the time. 7. He further testified that he accompanied the plaintiff to meet the 1st defendant, where negotiations culminated in an agreement for the purchase of the entire parcel at a consideration of Kshs. 1,800,000/=. That shortly thereafter he learnt that the 2nd defendant was laying claim to the land and had subsequently erected a mud-walled house thereon after the suit had been filed. 8. On cross examination, he stated that he accompanied both the plaintiff and the 1st defendant during the inspection of the land and that the 1st defendant’s wife was also present. He stated that at the time of the visit there were no houses, structures or visible developments on the property and that he did not see any occupation by the 2nd defendant. He further stated that he did not witness any money being paid and was not present when the sale agreement was executed. That when he later visited the land in 2022, he found a gate, a newly constructed mabati-roofed house, trees and a notice indicating that the land was not for sale. That marked the close of the plaintiff’s case. **Defence evidence** 1. DW1 was Nicholas Mitalo Liseche, the 2nd defendant. He adopted his witness statement dated 24th July 2023 as his evidence in chief and produced his documents as exhibits. He testified that on 18th January 2013 he entered into a sale agreement with the 1st defendant for the purchase of two acres to be excised from Land Parcel No. South Kabras/Chesero/24 at a consideration of Kshs. 960,000/=. That he paid the purchase price in full, took possession of the land in 2013, and immediately commenced developments thereon, including constructing a house and pit latrine, planting trees, fencing the property and cultivating sugarcane, maize, bananas and beans. 2. He also informed court that the parties had agreed that upon completion of succession proceedings relating to the estate of the 1st defendant’s late father, the purchased portion would be transferred to him. According to him, after the succession cause was concluded, the land was subdivided and the portion he occupied became Land Parcel No. South Kabras/Chesero/3285. That by the time the appellant purported to purchase the land in 2021, he had already been in occupation and possession of the property for several years and had extensively developed it. He therefore prayed that the appellant’s suit be dismissed and that the court compel transfer of the suit property to him. 3. Upon cross-examination, DW1 testified that he purchased the land on 2nd February 2013 and entered into possession immediately after paying the purchase price. That the land was then still registered in the name of the 1st defendant’s late father and that the two-acre portion was later demarcated following completion of succession proceedings. He testified that although the balance of the purchase price was paid later than agreed, the 1st defendant continued receiving payments and never objected to the transaction. He further stated that he lodged a caution against the suit property on 5th August 2021 to protect his interest after learning of interference with the land. 4. He maintained that he had developed the property from 2013 by constructing a toilet and other structures, planting crops and trees, and cultivating sugarcane. He denied disobeying any court orders and stated that he had never received a refund of the purchase price from the 1st defendant. On re-examination, he reiterated that Land Parcel No. South Kabras/Chesero/3285 was the same two-acre portion he purchased and occupied, that the 1st defendant had accepted the full purchase price without protest, and that he remained in possession of the land. 5. DW2 was Richard Aromba Tsimonjele, the 1st defendant. He adopted his witness statement dated 8th June 2023 as his evidence in chief and produced the documents in his list of documents of even date as exhibits. He testified that on 18th January 2013 he entered into a sale agreement with the 2nd defendant for the sale of two acres of land at a consideration of Kshs. 960,000/=. According to him, the agreement was subsequently cancelled due to the 2nd defendant’s failure to clear the balance of the purchase price and the 2nd defendant voluntarily vacated the land in mid-2013. 6. That on 27th July 2021 he entered into a fresh sale agreement with the plaintiff for the purchase of the whole parcel known as South Kabras/Chesero/3285 at a consideration of Kshs. 1,800,000/=, following which the plaintiff paid part of the purchase price and he commenced the process of obtaining Land Control Board consent. That the 2nd defendant only resurfaced and asserted a claim over the land after learning of the sale to the plaintiff. 7. Upon cross-examination by the plaintiff, DW2 testified that the original parcel South Kabras/Chesero/24 had been subdivided into parcels South Kabras/Chesero/3284, 3285 and 3289, and that the land sold to the plaintiff was different from that sold to the 2nd defendant. He stated that from 2015 to 2021 no person had challenged his ownership of the suit property and that although the 2nd defendant had occupied the land for several years, he believed the earlier agreement had been cancelled. 8. He admitted that he did not inform the plaintiff of the previous transaction with the 2nd defendant. Upon further cross-examination by counsel for the 2nd defendant, he acknowledged entering into the sale agreement dated 18th January 2013 with the 2nd defendant and conceded that the 2nd defendant had taken possession of the land in 2013, cultivated sugarcane thereon and remained in occupation. He further admitted that when he sold the land to the plaintiff in 2021 he was aware that the 2nd defendant was still utilizing the property. He also stated that the plaintiff had paid Kshs. 1,400,000/- out of the agreed purchase price of Kshs. 1,800,000/-. 9. DW3 was Flora Khayuji Muchesia, the 1st defendant’s wife. By consent of the parties, her witness statement dated 8th June 2023 was adopted as evidence in chief. Her testimony was that she witnessed the sale agreement entered into on 27th July 2021 between the 1st defendant and the appellant for the sale of the whole of Land Parcel No. S/KABRAS/CHESERO/3285 at a purchase price of Kshs. 1,800,000/-. That the appellant paid the agreed purchase price in full and that thereafter the 1st defendant applied for consent from the Malava Land Control Board to facilitate the transfer of the land. 10. It was her evidence that the suit property rightfully belonged to the appellant and that she had never consented to her husband selling the land to any other person. That she was surprised when the 2nd defendant laid claim to the land in August 2021 and maintained that the suit property ought to be transferred to the appellant. 11. DW4 was Patrick Indeche Ingumba. He adopted his witness statement dated 24th July 2023 as his evidence in chief. He recalled that in 2013 the 1st defendant approached him seeking assistance to find a buyer for a portion of land allocated to him from his late father’s estate. 12. He stated that he introduced the 2nd defendant to the 1st defendant, organized a meeting between them and witnessed the negotiations that culminated in the sale of two acres out of Land Parcel No. South Kabras/Chesero/24 at a purchase price of Kshs. 960,000/=. He further testified that immediately after the agreement, the 1st defendant handed over possession of the purchased portion to the 2nd defendant, who thereafter took occupation of the land and carried out various developments including construction of a house and pit latrine, planting trees and bananas, and cultivating sugarcane, maize, beans and vegetables. 13. Upon cross-examination, DW4 testified that he personally witnessed the transaction between the 1st and 2nd defendants and confirmed that the purchase price was paid in full through National Bank. That at the time of the sale, the 1st defendant had not yet obtained title to the land and was awaiting completion of succession proceedings. He further testified that the 2nd defendant took possession immediately after the sale and had remained in occupation ever since. That the 2nd defendant had constructed a house, pit latrine and fence on the land, and the farm laborer resided on the property. He stated that he did not know the plaintiff and had never seen him occupying the land. 14. DW5 was Alfred Murunga Anyora Tsimonjela. He adopted his witness statement dated 24th July 2023 as his evidence in chief. He testified that he witnessed the sale agreement entered into on 18th January 2013 between the 1st and 2nd defendant for the sale of two acres to be excised from Land Parcel No. South Kabras/Chesero/24. 15. He stated that the land was then registered in the name of the 1st defendant’s late father and that the portion sold formed part of the 1st defendant’s anticipated inheritance. That the agreed purchase price was Kshs. 960,000/=, which the 2nd defendant paid in full and the 1st defendant handed over possession of the land to the 2nd defendant in 2013, whereupon the latter took occupation, fenced the property, constructed a house and pit latrine, planted trees and established sugarcane and other crops. He maintained that since handing over possession, the 1st defendant had neither occupied nor utilized the land. 16. Upon cross-examination, DW5 testified that he personally witnessed the sale transaction and the payment of the purchase price, including the final instalment which was made before an advocate. He acknowledged that at the time of the transaction the land was still under succession proceedings and that the 1st defendant did not yet hold a title deed in his own name. He further stated that the 2nd defendant commenced developments on the land after taking possession and denied any suggestion that the structures were erected only after the dispute arose. On cross-examination by the 1st defendant, he confirmed that the succession proceedings concerned the estate of the 1st defendant’s late father and that the 1st defendant had not obtained title to the land at the time of the sale. That marked the close of the defence case. 17. Upon considering the pleadings, evidence and submissions placed before it, the trial court found that the 2nd respondent had purchased the suit property from the 1st respondent in 2013, paid the purchase price in full, taken possession thereof and had acquired an equitable interest in the land which could not be defeated by the subsequent sale to the appellant in 2021. Accordingly, it declined the appellant’s claim for specific performance but ordered the 1st respondent to refund the purchase price of Kshs. 1,800,000/- together with interest. It also allowed the 2nd respondent’s counterclaim by ordering transfer of the suit property to him, and awarded costs against the 1st respondent. 18. Having been dissatisfied with the trial court’s decision, the appellant lodged the present appeal vide a Memorandum of appeal dated 21st August 2024, citing the following five grounds of appeal: 19. **THAT the learned trial magistrate erred in law and in fact by failing to exhaustively and/or cumulatively evaluate the evidence on record and thus arriving at an erroneous conclusion by allowing the 2nd respondent's counter-claim.** 20. **THAT the learned trial magistrate erred in law and in fact by failing to find that the land sale agreement dated 18th January 2013 entered between the respondents herein was null and void.** 21. **THAT the learned trial magistrate misdirected himself on the law by applying the doctrine of constructive trust in favor of the 2nd respondent when the same had not been pleaded and/or prayed for.** 22. **THAT the learned trial magistrate made a serious error in law and in fact by failing to address and pronounce himself on the real and cogent issues that the parties had presented to the court.** 23. **THAT the judgment was against the weight of the evidence presented before the trial court.** 24. Consequently, the appellant prayed that: 25. **This Honorable Court be pleased to quash and/or set aside the decision of the learned trial magistrate allowing the 2nd respondent’s counterclaim.** 26. **This Honorable Court be pleased to make an order of specific performance against the 1st respondent in favor of the appellant.** 27. **This Honorable Court be pleased to compel the 1st respondent to execute the documents of transfer of the suit property to the appellant within a specified period, failing which the Deputy Registrar of this Court do so.** 28. **This Honorable Court be pleased to make an order of permanent injunction restraining the respondents, their agents, workers, heirs, personal representatives or any other persons claiming through them from entering, trespassing or in any manner whatsoever occupying Land Parcel No. South Kabras/Chesero/3285.** 29. **This Honorable Court be pleased to issue an order of eviction against the 2nd respondent from title No. South Kabras/Chesero/3285.** 30. **The costs of this appeal be borne by the respondents.** 31. The appeal was canvassed by way of written submissions. On record are submissions dated 4th June 2025, filed by the appellant and submissions dated 17th July 2025, filed by the 2nd respondent; which this court has duly considered. **Appellant’s submissions.** 1. The appellant submitted that the trial court erred in allowing the 2nd respondent’s counterclaim on the basis of the sale agreement dated 18th ­January 2013. It was argued that the said agreement was null and void because, at the time it was entered into, Land Parcel No. South Kabras/Chesero/24 was still registered in the name of a deceased person, Tsimonjoela Lumujera, and the 1st respondent had neither obtained letters of administration nor a confirmed grant authorizing him to dispose of the land. To buttress this position, reliance was placed on the decision **In Re Estate of Barasa Kanenje Manya (Deceased) (Succession Cause 263 of 2002 [2020] KEHC (KLR)**. Counsel further submitted that the 2nd respondent’s counterclaim was statute-barred, having been filed more than six years after the alleged agreement, contrary to **section 4(1)(a) of the Limitation of Actions Act.** 2. Counsel argued that the trial court lacked jurisdiction to entertain the 2nd respondent’s counterclaim since limitation goes to jurisdiction. It was argued that once the counterclaim was found to arise from a 2013 contract, the trial court ought to have downed its tools. Reliance was placed on ***David Omondi Angira v Mulumbi & 7 Others [2023] eKLR*** on the proposition that a time-barred claim deprives the court of jurisdiction. 3. On constructive trust, counsel submitted that the learned trial magistrate erred by applying the doctrine in favor of the 2nd respondent when the same had neither been pleaded nor prayed for. Citing ***Mark Kiprotich Sirma v Sosten Kiplagat Singoei [2022] eKLR***, counsel submitted that trust must be specifically pleaded and proved. Further, that the 2nd respondent did not merit equitable relief, having knowingly entered into a transaction involving land registered in the name of a deceased person, failed to pursue transfer for several years, and only lodged a caution after the appellant had purchased the property. 4. It was further contended for the appellant that the appellant entered into a valid written sale agreement with the 1st respondent on 27th July 2021 over Land Parcel No. South Kabras/Chesero/3285, carried out due diligence, confirmed that the 1st respondent was the registered proprietor, and paid the full purchase price. That the appellant’s witnesses confirmed that there were no structures on the suit property at the time of purchase, while the 2nd respondent’s photographs lacked probative value for want of a certificate under **section 106B of the Evidence Act**. 5. Counsel relied on **section 26 of the Land Registration Act** on indefeasibility of title and **section 3(3) of the Law of Contract Act** on validity of land sale agreements. It was submitted that the appellant’s agreement satisfied the requirements of the law and was therefore enforceable by specific performance. The appellant prayed for the court to allow the appeal, set aside the order allowing the 2nd respondent’s counterclaim, grant specific performance in his favor, and order each party to bear its own costs. **2nd Respondent’s submissions** 1. The 2nd respondent contended that he entered into a sale agreement with the 1st respondent on 18th January 2013 for the purchase of a portion measuring 0.8 hectares out of land parcel No. South Kabras/Chesero/24 at a consideration of Kshs. 960,000/-, which sum was paid in full. That upon payment of the purchase price, he was immediately placed in possession of the land and had remained in occupation thereof since 2013, during which period he developed the land extensively by constructing a house, planting crops and establishing other permanent developments. 2. Counsel submitted that it was common ground that the parties understood that the land was then registered in the name of the 1st respondent’s deceased father and that transfer to the 2nd respondent would be effected upon completion of the succession process. That after succession was concluded, the 1st respondent obtained title to land parcel No. South Kabras/Chesero/3285, which constituted the very portion that had been sold to the 2nd respondent. That despite repeated requests, however, the 1st respondent failed to transfer the land, necessitating the registration of a caution and the filing of the counterclaim. Counsel further submitted that the appellant and the 1st respondent acted in collusion and bad faith in an attempt to defeat his interest in the land. In this regard, counsel pointed to a consent entered into between the appellant and the 1st respondent during the pendency of the suit, notwithstanding the existence of the 2nd respondent’s defence and counterclaim. That the said conduct demonstrated a deliberate attempt to procure orders adverse to the 2nd respondent despite the appellant being aware of his longstanding occupation and developments on the land. 3. Counsel for the 2nd respondent submitted that the appellant was not genuinely aggrieved by the judgment since the trial court had granted him the alternative remedy he had sought in the plaint, namely a refund of the purchase price. That whereas the appellant had pleaded for a refund of between Kshs. 1,400,000/- and Kshs. 1,500,000/- in the alternative, the trial court awarded him Kshs. 1,800,000/- against the 1st respondent. It was therefore submitted that having obtained a remedy more beneficial than that pleaded, the appellant could not properly claim to be dissatisfied with the judgment. 4. In response to the appellant’s argument on limitation, counsel submitted that the counterclaim was not statute-barred. That the 2nd respondent entered into the agreement and took possession in 2013 and filed his counterclaim in 2021, well within the twelve-year limitation period applicable to actions concerning recovery of land. Counsel maintained that the authorities relied upon by the appellant on limitation were distinguishable on their facts and did not apply to the circumstances of the present case. 5. Regarding the doctrine of constructive trust, the 2nd respondent averred that the trial court did not apply the doctrine in the context discussed in ***Mark Kiprotich Sirma v Sosten Kiplagat Singoei*** but rather as an equitable tool to achieve justice in light of the undisputed facts of the case. Counsel argued that the 2nd respondent had paid the full purchase price, taken possession and developed the property, while the appellant knowingly purchased land already occupied by the 2nd respondent. It was therefore submitted that equity favored the 2nd respondent rather than the appellant. 6. Counsel further submitted that the appellant’s challenge to the photographs produced by the 2nd respondent was of no consequence because no objection had been raised when the photographs were produced and, in any event, the fact of occupation and development of the land had been admitted by the 1st respondent and corroborated by other evidence. It was therefore argued that the photographs were merely cumulative evidence and were not central to the determination of the dispute. In conclusion, the 2nd respondent submitted that the trial court correctly found that between two competing purchasers, the 2nd respondent, who purchased first, paid the full purchase price, took possession and developed the land, was entitled to the suit property, while the appellant, who purchased later with knowledge of the 2nd respondent’s occupation, was properly compensated through a refund of the purchase price and prayed for the court to dismiss the appeal with costs. **Analysis and determination** 1. This court has carefully considered the appeal, parties’ rival submissions and the entire record. This being a first appeal, the duty of this court is to reanalyze, reassess and re-evaluate, the evidence before the trial court and make its own independent conclusions bearing in mind that it had no advantage of seeing or hearing witnesses and therefore make due allowance for that. 2. The duty of the first appellate court was discussed in the case of ***Gitobu Imanyara & 2 Others v. Attorney General [2016] eKLR,*** where the Court of Appeal stated as follows; **‘‘An appeal to this court from a trial by the High Court is by way of a retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put, they are that this court must consider the evidence, evaluate it itself and draw its own conclusions, although it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.”** 1. Having considered the appeal, the appellant who sought an order for specific performance against the 1st respondent and an alternative prayer for refund of consideration is aggrieved that the trial court failed to grant him specific performance. Therefore, the issue for determination is whether the trial court was wrong in declining to grant an order for specific performance in favour of the appellant. 2. Specific performance is an equitable remedy granted where there exists a valid contract and where damages would be inadequate in the circumstances of the case. 3. In the case of **Gharib Suleman Gharib v Abdulrahman Mohamed Agil** **LLR No. 750 (CAK) Civil Appeal No. 112 of 1998**the court held that: **“The jurisdiction to order specific performance is based on the existence of a valid and enforceable contract and being an equitable relief, such relief is more often than not granted where the party seeking it cannot obtain sufficient remedy by an award of damages the focus being whether or not specific performance will do more perfect and complete justice than an award of damages.”** 1. Similarly, in **Reliable Electrical Engineers Ltd. V Mantrac Kenya Limited (2006) eKLR**where the court stated as follows; **“The Jurisdiction of specific performance is based on the existence of a valid enforceable contract. It will not be ordered if the contract suffers from some defect, such as failure to comply with the formal requirements or mistake or illegality, which makes the contract invalid or enforceable. Even when a contract is valid and enforceable, specific performance will however not be ordered where there is an adequate alternative remedy. In this respect damages are considered to be an adequate alternative remedy where the claimant can readily get the equivalent of what he contracted for from another source. Even when damages an adequate on remedy specific performance may still be refused on the ground of undue influenced or where it will cause severe hardship to the defendant.”** 1. In the instant case, as the suit property having already been sold to the 2nd respondent who had already taken possession, was not available for sale to the appellant and therefore, the remedy for specific performance was not available to the appellant. In any event, the appellant entered into a sale of land agreement on 27th July 2021, and according to his pleadings he had not even completed payment of the entire purchase price when he filed the suit in the lower court on 24th September 2021, which was hardly two months from the date of purchase. Besides, he had not taken possession of or developed the suit property and had not incurred any other loss apart from the payment of part of the consideration. That being the case, and him having sought for an alternative prayer for refund of consideration, the trial court was right in allowing the alternative prayer, as the available remedy for him was damages, which he had sought in the alternative and which was granted. The appellant is appears dishonest for challenging a decision in which the court granted him what he sought. An alternative prayer is not a lesser prayer. 2. In the instant case, the 2nd respondent pleaded and demonstrated in evidence that he purchased 2 acres from the 1st respondent when the land was known as S/Kabras/Chesero/24 and that upon succession, the two acres purchased were registered as S/Kabras/Chesero/3285. The 2nd respondent put up a home on the suit property and had been in occupation since 2013. Therefore, the appellant’s argument that the 2nd respondent entered the suit property after his purchase of the same is not true. The appellant purchased land occupied by the 2nd respondent and which had been sold by the 1st respondent to the 2nd respondent. The 1st respondent having sold the suit property to the 2nd respondent his incapacity notwithstanding, the same property was unavailable for sale to the appellant because it was already the 1st respondent’s share which devolved to him on succession and equity would not countenance the 1st respondent’s subsequent sale as that would amount to unjust enrichment. 3. The trial court was therefore right in applying the principle of equity and constructive trust, as the 1st respondent having sold the suit property held the title thereof in trust for the 2nd respondent. 4. In any event, the appellant sought an alternative prayer for refund of consideration which was granted. There is therefore no justification for the appellant to appeal when his alternative prayer for special damages was granted, which was sufficient in the circumstances. This appeal, in my view, was vexatious and wholly unnecessary. 5. I therefore find no basis to interfere with the findings, conclusions and orders made by the trial court and I find and hold that this appeal lacks merit and the same is hereby dismissed with costs to the 2nd respondent, which shall be borne by the appellant. 6. It is so ordered. **DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 15TH DAY OF JULY 2026** **A. NYUKURI** **JUDGE** **In the presence of;** Mr. Mbaka for the appellant Mr. Mukavale J. for the 2nd respondent No appearance for the 1st respondent Court Assistant- Delphine