JOHN ASINGO BUNDE VS BONFACE WASIKE WANYAMA

JUDGMENT
(Being an appeal from the judgment of the Senior Principal Magistrate Hon. B. Omwansa (PM) delivered on the 28th February, 2023 in Oyugis ELC Suit No. 123 of 2020)

INTRODUCTION
1. This is an appeal arising from the ruling of Honourable B. Omwansa Principal Magistrate, delivered on 28th February, 2023 in Oyugis ELC No. 123 of 2020.
2. The Appellant filed a Memorandum of Appeal dated 15th March, 2023 appealing against the said judgment on the following grounds: -
1. The learned trial magistrate erred in law by not making a finding that the agreement that was the subject of the lower court suit was illegal and thus not enforceable.
2. The learned trial magistrate erred in law by awarding special and material damages that had not been proved to wit:
a) Cost of a residential house of Kshs. 40,000/=
b) An assortment of trees amounting to Kshs. 28,700/=
c) Survey Fees of Kshs. 6,000/=
d) Legal Fees of Kshs. 15,000/=
e) Demand letter notice of Kshs. 5,000/=
f) Cost of sale of Kshs. 3,500/=
3. The learned trial magistrate erred in law and in fact by awarding Kshs. 20,000/= that was used to purchases sugarcane which was harvested and consumed by the Respondent.
4. The learned trial magistrate erred in law and in fact by awarding a penalty of 30% of the alleged purchase price of the suit property for the alleged breach of an illegal contract.
5. The learned trial magistrate erred in law and fact by condemning the Appellant to pay costs of the suit yet all parties were in error.
6. The learned trial judge (sic) erred in law and fact in making a finding that the Respondent had proved his case on a balance of probabilities.
3. The Appellant seeks orders allowing the appeal and setting aside the trial magistrate’s judgment dated 28th February, 2023. He also prays for costs of the present appeal and that of the subordinate court.
BRIEF FACTS
4. The Respondent filed a suit against the Appellant vide a plaint dated 21st August, 2020 seeking refund of Kshs. 286,700/= and specific performance   together with costs and interest of the suit.
5. The Appellant denied the allegations in the Plaint vide his statement of defence dated 31st August, 2020. 
6. The trial magistrate in his judgment dated 28th February, 2023 allowed the Respondent’s case and found that Respondent had proved his case against the Appellant. The Appellant being dissatisfied with the judgment filed the present appeal which was canvassed by way of written submissions.
Submissions
7. Counsel for the Appellant file his submissions dated 20th December, 2024 where he identified five issues for determination. The first issue was whether the agreement dated 11/8/2014 was legal. He submits that as of 11th August, 2014, the suit property LR. No. West Kasipul/Kodera/Karabach/212 was registered in the name of Bunde Asingo (Deceased). He submits that the impugned sale agreement indicates the seller as the Plaintiff who at the time had no title since he had not acquired letters of grant to the deceased’s estate to enable him dispose the suit property. He submits that the contract amounted to intermeddling with the deceased’s estate. Counsel cited Section 45 of the Law of Succession Act and the cases of Re Estate of Nzioki Mwatu (Deceased) (2019) eKLR and Re Estate of Barasa Kanenie Manya (Deceased) Succession Cause 263 of 2002 [2020] KEHC 1 (KLR). It was counsel’s submission that the agreement was therefore illegal, null and void.
8. The second issue was whether the agreement dated 11/8/2014 is enforceable. He relied on the case in Kenya Airways Limited V Satwant Singh Flora [2013] eKLR and submits that the court is estopped from enforcing the said agreement which was illegal for being a product of intermeddling with the deceased’s estate.
9. The third issue was whether the material and special damages awarded were sufficiently proven. While submitting in the negative, counsel argues that no bill of quantities or assessment report for the purported damaged house and trees were provided to confirm the amount. He added that there were no receipts produced for the special damages pleaded. He cited the case in Hahn V Singh Civil Appeal No. 42 of 1983 (185) KLR) 716 and submits that the Respondent failed to prove the claims of special damages as required by law rendering the awards by the trial court unsafe.
10. The fourth issue was whether the amount awarded is justifiable. He submits in the negative and argues that only the Kshs. 125,000/= for the property was not disputed as it was monies received for the parcel of land. On the final issue of costs, he relied on Section 27 of the Civil Procedure Act and urges the court to direct that each party bears its own costs of the suit.
11. Counsel for the Respondent on the other hand filed his submissions dated 7th February, 2025 where he identified two issues for determination. The first issue was whether the trial court erred in finding in favour of the Respondent. While submitting in the negative, counsel argues that the wording of the agreement showed that the agreement was premised on the vendor filling and ensuring that he successfully transfers the land to the purchaser. He submits that the vendor failed to perform the obligations under the agreement thus the parties were to revert back to their previous positions thus to refund the purchase price as well as payment of the 30% penalty and incidental expense. It was his submission that the trial court exercised equity on the basis of fairness since the common law and legal principles would have unfairly enriched the Appellant who took the Respondent’s money and was using the same law to evict him having sold the same portion to another person. He relied on the case of Thika ELC 189 of 2017 Joseph Ndungu Chogi & Others v Peter Kagunyu Kiragu and submits that the Appellant came to court with unclean hands. He further relied on the case of Eldo City Ltd v Corn Products Kenya Ltd & Another (2013) eKLR and Nakuru HCC No. 316 of 2012 (Formerly HCCC No. 51 of 2012) Jerusha Wangari Mwangi v Beatrice Muthoni Karanja & Others. It was counsel’s submission that a party who willingly negotiated and entered into an agreement knowing what it entails and later on hides behind the law should not be granted audience before court. He urges the court to dismiss the appeal with costs and order him to comply with the directions of the trial court in default which the court to compel the Appellant to transfer the suit land to the purchaser.
12. The final issue was whether the appeal was meritorious. He submits in the negative and urges the court to dismiss the same with costs and uphold the findings of the learned trial magistrate.
Issue, Analysis and Determination
13. Upon consideration of the grounds of appeal, pleadings, submissions and the authorities cited, the following issues are for determination:
1. Whether the appeal is merited.
2. Who should bear the cost of the appeal.
Being a first appeal, the court relies on a number of principles as set out in Selle and another v Associated Motor Boat Company Ltd and others [1968] 1 EA 123:
“…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. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence ...”
14. Further as was found in the case of Mwangi v Wambugu [1984] KLR 453 that an appellate court will not normally interfere with a finding of fact by the trial court unless such finding is based on no evidence or on a misapprehension of the evidence; or where the court has clearly failed on some material point to take account of particular circumstances or probabilities material to an estimate of the evidence. 
15. It is not in dispute that the sale agreement 11th August, 2014 was entered into between the Appellant and Respondent in anticipation of the succession process which was yet to commence over a property of a deceased person. It would be a figment of imagination that it was not in contention that the Appellant did not have the capacity to sell as the transaction violated Section 45 of the Law of Succession Act, and amounted to intermeddling with the Estate of the deceased, a position the trial court rightfully found to have obtained.
16. It is noteworthy that the trial court even after it found that the agreement was invalid and thus specific performance could not issue, went further to granting the alternative remedy of refund of the purchase price Kshs. 286,700/= together with costs and interest. It was the trial court’s reasoning that the Respondent ought not be allowed to suffer double jeopardy in that he had lost the (purchase of) land he intended as well as the monies he paid for it. It is the award of the refund together with costs and interest that formed the basis of the present appeal which this court will limit itself to.
17. In Kadzo Charo v Alex Nzai Dzombo [2019] KECA 377 (KLR) the court held as follows:
“…An order for specific performance could not therefore be founded on a defective contract...”
18. It is this court’s view that specific performance is to be based on the existence of a valid enforceable contract and will not be ordered if the contract suffers some defect or illegality as in the present case being intermeddling of the estate of deceased person. It is not in dispute that the Respondent in his plaint dated 21st August, 2020, aside from seeking the prayer for specific performance, he also sought for refund of the purchase price together with costs and interest as an alternative prayer.
19. In the case of Independent Electoral and Boundaries Commission & another v Mule & 3 others [2014] KECA 890 (KLR) the court held that:
“... it is now a very trite principle of law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded.”
20. Flowing from the above, it is this court’s view that the trial court did not depart from what the Respondent sought for in his pleadings while granting an order of refund of the purchase price together with cost and interest. A cursory look at the grounds of appeal reveals, and it is my humble opinion, that the grounds are rather misplaced. This is because, to begin with, the trial court never awarded the special damages or costs as the alleged by the Appellant to warrant interference with its finding. It is this court’s view that the trial magistrate limited itself to the refund of the purchase price and in any event, the issue of costs and interest if any ought to be determined at the taxation stage.
21. The Appellant should not have smiled all the way to the bank at hearing the court pronounce itself on the invalidity of the sale agreement yet he had obtained money on account of that agreement, knowing well or having ought to have known that it was illegal. I am falling short of saying that the seller obtained the money by falsely pretending to have capacity to sell, and that was criminal in nature. But I leave it at him receiving the money due to the transaction, wanting to keep it, and yet he has not delivered since he had nothing to deliver. In law, the doctrine of unjust enrichment operates in such circumstances. It works to prevent someone from unfairly benefiting at another's expense by requiring them to compensate a party who has given the benefit the recipient seeks to retain when it is inequitable to do so. This catches up with the Appellant.
22. In Fibrosa Spolka Akoyjna v Fairbairn Lawson Combe Barbour Ltd [1943] AC 32, Lord Wright, at page 61, held,
“It is clear that any civilised system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is to prevent a man from retaining the money of or some benefit derived from another which it is against conscience that he should keep. Such remedies in English law are generically different from remedies in contract or in tort, and are now recognised to fall within a third category of the common law which has been called quasi-contract or restitution.”
Additionally, in their treatise Goff and Jones on the Law of Unjust Enrichment, Goff and Jones state at page 12 as follows:
“The principle of unjust enrichment is placed in the forefront of the American Restatement of Restitution. Paragraph 1 provides that ‘a person who has been unjustly enriched at the expense of another is required to make restitution to the other’.”
To this extent of recognizing and enforcing the principles of the doctrine of unjust enrichment, Kenya is civilized and it has to do so. Moreover, this Court is a one of justice. It is guided by the overriding principle of justice is administered for all equally. It is unconscionable for the appellant to cling onto what he ought not to have received in the first place. He should refund it forthwith. He is lucky that interest was not ordered to commence the time he received the money.
Let us here the conclusion of the whole matter: “Appellant, refund the money on the terms ordered by the trial court. Your appeal lacks merit and I dismiss it with costs to the Respondent.”
It is so ordered.