(being an appeal from the judgment by Hon. T.M OLANDO (PM) IN Bungoma ELCLA NO. E061 of 2021 delivered on 29/02/2024)
1. The Appellant herein was the Plaintiff in the subordinate court in Bungoma ELC Case No. E061 of 2021 wherein she had sued the Respondents vide a plaint dated 06/09/2021 seeking for the refund of Kshs.1,200,000/= with interest from 29/01/2020, general damages for misrepresentation and breach of contract, exemplary damages, aggravated damages, costs of the suit and interests on the above.
2. It was the Plaintiff/Appellant’s case that sometime in January 2020, she entered into a sale agreement with the 2nd Defendant/Respondent through the 1st Defendant/Respondent for the sale of land parcel no. East Bukusu/South Kanduyi (hereinafter “the suit land”) for a consideration of Kshs.1,200,000/=. That through her agent she transferred the full consideration to the 1st Defendant’s Co-operative bank account number 0116782227800 to hold in trust for the 2nd Defendant. That she thereafter sought to have the suit land transferred to her only to discover that the 2nd Respondent was not the owner of the suit land and that the facts had been fraudulently misrepresented. She set out particulars of fraud, damages and psycological trauma against the Respondents for colluding to defraud her of Kshs.1,200,000/= and causing the loss of the suit land.
3. The Respondents filed a defence dated 31/08/2022 wherein they denied the allegations levelled against them and invited the Appellant to strict proof thereof and sought to have the suit dismissed with costs.
Evidence by parties.
4. The suit proceeded by way of viva voce evidence.
5. Angellah Nasipwondi Wephukulu (PW1) adopted her witness statement dated 06/09/2021 as her evidence-in-chief and produced into evidence her witness statement dated 29/07/2020.In cross-examination, she testified that she did not conduct a search for the land and that she was given the account details of the 1st Respondent by the 2nd Respondent claiming he was illiterate.
6. Maurice Wakhapila Fwamba (DW1) also adopted his witness statement dated 14/03/2023 as his evidence in chief. He testified that he drew the agreement between the Appellant and the 2nd Respondent and further that the consideration was paid into his account by one Stephen Aldrige. He testified that the said Stephen Aldrige claims that the money paid did not belong to the Appellant. That the money was paid to various people under the instructions of the Appellant.
7. Benard Wafula Kwathonge (DW2) adopted as his witness statement as his evidence-in-chief. He denied entering into any agreement with the Appellant and receiving any money.
8. Upon evaluating and analysing the testimony of the witnesses and evidence placed before it, the trial court court found that the Appellant had not proved her case to the required standards and dismissed the same and ordered each party to bear their own costs.
The Appeal.
9. Being dissatisfied by the subordinate court’s judgment, the Appellant preferred this appeal against the trial court’s judgment on the following grounds;
a) The learned trial magistrate erred in law and fact by dismissing the Appellant's suit by stating that the Appellant had not proven her case on a balance of probabilities and yet the evidence showed the contrary.
b) The learned trial magistrate erred in law and in fact by holding that there was no evidence that the 2nd Respondent was paid any consideration by the Appellant, and yet there was evidence that the purchase consideration was received by the 1st Respondent, since the 2nd Respondent had no Bank account.
c) The learned trial magistrate erred in law and fact by holding that there was no evidence to prove that the 1st Respondent was an agent of the 2nd Respondent.
d) The learned trial magistrate erred in law and fact by holding that the person who allegedly paid the money was not called as a witness to prove that indeed he was an agent for the Appellant and yet there was no contest of receiving of the money by the Respondents.
e) The learned magistrate erred in law and fact by holding that the whole transaction was laced with a lot of illegalities, and that the court could not be used to further such illegalities, and yet the Appellant had come to court to seek justice.
f) The learned trial magistrate erred in law and fact by not analysing the evidence before him, and instead dwelling on issues that were not part of the evidence.
g) The learned trial magistrate erred in law and fact by ordering that each party to bear own costs, and yet the Appellant had incurred expense in filling the suit and also suffered monetary aspect due to the acts of the respondent.
h) That the learned trial magistrate erred in law and fact by dealing with the matter as any other ordinary civil case and yet the matter had been filed under the environment and Law court.
i) The learned trial magistrate eared in law and fact by not analysing the evidence of both the Appellant and Respondent, and reach a proper finding that the Appellant case was a proper case for a refund of kshs. 1,200,000/= which was obtained fraudulently by the Respondent.
j) The learned trial magistrate erred in law and fact by failing to award costs to the Appellant.
10. The Appellant sought to have this Appeal allowed, the judgment and resultant Decree set aside, judgment entered in her favour for kshs 1,200,000/ plus costs and interest at court rates from the date of filling until payment and costs of the primary suit and the appeal.
Submissions on the Appeal.
11. The Appellant filed submissions dated 10/10/2025 and submitted that she had proved her case on a balance of probabilities, and her claim for a refund of Kshs. 1,200,000/= was well documented in evidence. She submitted that the agreement produced conformed to Section 3 of the Law of Contract Law of Kenya. Reliance was placed in the case of Nelson Kivuvani Vs Yuda Komora& Ano Nairobi HCCC No 950 Of 1991.
12. The Respondent on the other hand filed submissions dated 14/07/2025 and stated that the subordinate court reached a proper determination and asked the court to dismiss the appeal for lack of merit.
Analysis and Determination.
13. I have considered the record of appeal, the rival submissions by the parties and the authorities relied upon. I have also considered the impugned judgment and the trial court’s record. The role of this Court as an appellate court is as defined in the case of Gitobu Imanyara & 2 others v Attorney General [2016] eKLR.
14. The Appellant contends that she purchased the suit land from the 2nd Respondent, acting through the 1st Respondent as his agent, only to later discover that the transaction was a fraudulent scheme orchestrated to deprive her of her money. The 1st Respondent in his evidence admitted to witnessing a sell between the Appellant and the 2nd Respondent and receiving Kshs.1,200,000/= in his account being part payment for the suit land and sharing it on the instructions of the Appellant. The 2nd Respondent on his part denied entering into any agreement and receiving any money from the Appellant or the 1st Respondent. The trial court was also told that the individual who is said to have deposited funds into the 1st Respondents account, denies having paid it for on behalf of the Appellant.
15. The main issue for determination in this appeal is whether the Appellant proved her case against the Respondent to the required standard to warrant the granting of the prayers sought.
16. The Appellant alleges that she entered into a sale agreement with the Respondents and produced an undated document marked P-Exhibit 1 as evidence of the alleged transaction. She further tendered a bank statement from Standard Chartered Bank in the name of Stephen Anthony Aldridge, purportedly demonstrating that a sum of Kshs. 1,200,000/= was remitted to the 1st Respondent on 29/01/2020. It is important to note that the agreement makes no mention of such an agreement to pay the consideration to a party who only appears as the secretary of the agreement for sale. This is questionable moreso since, as earlier noted, the purported vendor categorically denied ever entering into any agreement with the Appellant or receiving any payment in settlement of any consideration.
17. The law is unequivocal. Section 3(3) of the Law of Contract Act is couched in mandatory terms provides that no suit shall be founded on a contract for the disposition of an interest in land unless the contract is in writing, signed by all parties, and the signatures thereof are attested by a witness present at the time of execution. A scrutiny of P-Exhibit 1 reveals fatal defects apart from the above mentioned that crucial details have been left out, it is undated, and the signature of the person alleged to have paid the Kshs. 1,200,000/= did not append his signature in the agreement. The glaring anomalies invite the court to question the actual intention of the agreement and whether indeed the parties therein were keen to be bound by the terms expressed in the agreement.
18. In this courts considered view, all these unanswered questions lead the court to the inescapable conclusion that the document (P-Exhibit 1) is incapable of sustaining any legal claim to land. Indeed, as correctly observed by the subordinate court, the entire transaction is riddled with glaring anomalies. This Court takes particular note of the subordinate court’s concern regarding the Appellant’s failure to call Stephen Anthony Aldridge, the individual who allegedly deposited the funds to clarify the circumstances under which such payment was made. Just as the subordinate court observed, this court questions why the said individual was not called as a witness to this case noting the assertion by the 2nd Respondent that the said individual denies ever making the payment for the purposes of the alleged agreement.
19. The Appellant also failed to call any of the purported witnesses to the agreement to corroborate her narrative. Moreover, this Court finds it improbable that the Appellant would only undertake a search of the property after executing the alleged agreement and paying part of the consideration. The impression created is that the so-called agreement was merely a conduit devised to access the monies in question rather than evidence of a genuine transaction for the disposition of land.
20. In the result, this Court fully agrees with the subordinate court that the Appellant failed to discharge the burden of proof placed upon her under Sections 107–109 of the Evidence Act, which require a party who asserts the existence of a fact to proof that indeed it exists. As held in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR, a party must present credible and cogent evidence capable of persuading the court "on a balance of probabilities" a standard the Appellant has plainly not met. The appeal is therefore devoid of merit and fails.
21. The Respondents shall have the costs of the appeal.
DATED, SIGNED and DELIVERED at BUNGOMA this 11th day of December, 2025.
……………………………..
HON.E.C CHERONO
ELC JUDGE
In the presence of;
1. Appellant-present.
2. 1st Respondent-present.
3. 2nd Respondent-absent.
4. Bett C/A.
| 9999 |