JUDGEMENT
1. The Appellant herein being dissatisfied by the Judgement and Decree of Hon P.N. Areri (hereinafter referred to as “ the Trial Court” ) pronounced on the 06.06.2023 in the proceeding known as ELDORET CHIEF MAGISTRATES COURT ENVIRONMENT & LAND CASE NO. 204 OF 2018 (hereinafter referred to as “the Trial Court proceedings” ) did file a Memorandum of Appeal dated 09.06.2025 and a Supplementary Record of Appeal dated 03.02.2025 (hereinafter referred to as “the present Appeal” ) against the 1 st to 3 rd Respondents seeking the following Orders; -
i) This Appeal be allowed by setting aside the Judgement of the Lower Court and substitute it with an Order allowing the suit as pleaded in the Amended Plaint with costs of this Appeal and the main suit.
2. The grounds in support of the above prayers were duly outlined in the Memorandum of Appeal dated 09.06.2025 and are as follows; -
a) The Learned Magistrate erred in law and in fact by failure to observe that the Appellant had established fraud against the Respondents.
b) The Learned Magistrate erred in law and in fact by failure to observe that the Appellant had established by evidence of the need to cancel the title issued to the 1 st Respondent.
c) The Learned Magistrate erred in law and in fact by failure to observe that the 1 st and 3 rd Respondents did not call any witnesses hence the Appellants evidence remains unchallenged.
d) The Learned Magistrate erred in law and in fact by failure to find and observe that the Appellant had established the threshold for granting of a permanent injunction.
e) The Learned Magistrate erred in law and in fact by holding that the 1 st and 3 rd Respondents’ rights to be heard were violated when it was plain and clear they were given such opportunity but failed to act.
f) The Learned Magistrate erred in law and in fact demonstrating lack of competency in addressing land matters hence arriving at an erroneous conclusion.
g) The Learned Magistrate erred in law and fact by going outside what the parties had pleaded.
3. The Record of Appeal was served on the 1 st , 2 nd and 3 rd Respondents.
4. The 1 st Respondent upon service of the present Appeal did file Notice of Address of Service dated 11.09.2025 and a Response to the Memorandum of Appeal also dated 11.09.2025 whose contents can be summarised as follows:-
(i) The 1 st Respondent averred that the present appeal is a sham and only contains mere denials to the judgment delivered by the trial court on 06.06.2023.
(ii) That the Memorandum of Appeal does not raise any reasonable appealable issues but only expresses dissatisfaction with the judgment of the Lower Court.
(iii) The Trial Court correctly directed itself by considering the pleadings, evidence adduced and testimonies in delivering the judgment.
(iv) That the present appeal is an abuse of the court process as it is pegged on baseless grounds and that litigation must come to an end.
(v) The 1 st Respondent thus prayed that the appeal be dismissed with costs.
5. The Court did admit the present Appeal for hearing on the 09.02.2026 and directed that it would be canvassed by way of written submissions.
6. The Appellant in compliance with the above directions did file her submissions dated 18.03.2026, the 1 st Respondent file his submissions dated 24.04.2026 while the 2 nd Respondents’ submissions were dated 14.04.2026.
7. The Court in its jurisdiction as the first Appellate Court is guided by the authority of Selle & Another vs Associated Motor Boat Co. Limited & Others (1968) EA 123 , where it was state as follows:-
“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.”
8. Based on the above authority, this Court is required to re-evaluate the evidence before the Trial Court, identify the issues for determination, make its own independent conclusions and then consider whether the Trial Court applied the correct law and facts in arriving at its decision.
9. To be able to achieve this exercise, the Court will now proceed re-evaluate the pleadings and evidence tabled before the Trial Court and identify the issues for determination.
THE PLEADINGS FILED BEFORE THE TRIAL COURT.
10. The Trial Court proceedings were instituted by the Appellant through a Plaint dated 18.01.2018, which was later amended on 01.10.2018, seeking the following Orders against the 1 st , 2 nd and 3 rd Respondent herein; -
(a) A declaration that the Plaintiff is the absolute owner of the whole of that parcel of land known as ELDORET MUNICIPALITY BLOCK 11/1081 and the 1 st Defendant actions amounts to an interference with the Plaintiff’s proprietary interests over the suit land.
(b) A declaration that the transfer and registration of the 1 st Defendant as the owner of land parcel number ELDORET MUNICIPALITY/BLOCK 11/1081 and all the documents used in effecting such registration are unlawful, illegal, null and void and were procured by fraud and in contravention of the law.
(c) An order directing the 3 rd Defendant to cancel the title deed issued to the 1 st Defendant over land parcel number ELDORET MUNICIPALITY/BLOCK 11/1081 and/or rectify the register of the said parcel of land by cancelling the 1 st Defendant’s name as the owner of the parcel of land and substitution therewith the Plaintiff’s name as the owner thereof.
(d) An order of Permanent Injunction to permanently restrain the 1 st Defendant, whether by himself, his agent/servant and/or employee from trespassing into, wasting, leasing, collecting rent, transferring, subletting, interfering with, destruction of property and/or any other way or manner whatsoever on however dealing with the parcel number ELDORET MUNICIPALITY/ BLOCK 11/1081.
(e) An order of Injunction permanently restraining the 1 st Defendant from re-entering into, trespassing upon and or otherwise interfering with the Plaintiff’s parcel number ELDORET MUNICIPALITY/BLOCK 11/1081.
(f) A declaration that the Agreement dated 30 th June, 2017 stands repudiated and the Defendant cannot claim for any right over the said agreement.
(g) An order directing the 1 st Defendant to collect the initial deposit.
(h) Costs of this suit.
(i) Any further relief this Honourable court deems fit and just to grant.
11. The facts in support of the Appellant’s prayers before the Trial Court were as follows; -
i. The Appellant is the lawful owner of the property known as LR.NO.ELDORET MUNICIPALITY BLOCK 11/1081 measuring approximately 0.0134 Hectares (hereinafter referred to as “the suit property” ).
ii. On or about 30.06.2017, the Appellant did enter into an Agreement For Sale of the suit property with the 1 st Respondent for a consideration of Six Million Two Hundred Thousand (KShs.6,200,000/-.)
iii. At the time of execution of the Agreement For Sale dated 30.06.2017, the suit property had been charged to the 2 nd Respondent to secure a financial facility amounting to Kenya Shillings Five Milllion Two Hundred Thousand (KShs.5,200,000/-) by the Appellant.
iv. Consequently, it was a term of the Agreement For Sale dated 30.06.2017 that the initial deposit of Kenya Shillings One Million (KShs.1,000,000/-) would be paid directly to her and the balance of Kenya Shillings Five Million Two Hundred Thousand (KShs.5,200,000/-) would be paid to the 2 nd Respondent to clear the outstanding financial facility and procure the ownership documents therein.
v. The Appellant however did plead that the 1 st Respondent did not pay a sum of Kenya Shillings Four Hundred Thousand (KShs.400,000/-) towards that initial Kenya Shillings One Million (KShs.1,000,000/-) which was to be paid directly to her on or before 15.09.2017, and similarly, the 1 st Respondent did not settle the sum of Kenya Shillings Five Million Two Hundred Thousand (KShs.5,200,000/-) which was to be paid directly to the 2 nd Respondent.
vi. Due to this default on the part of the 1 st Respondent, the Appellant did repudiate the Agreement For Sale dated 30.06.2017 on the 18.09.2017.
vii. The Appellants pleaded that despite the Agreement For Sale dated 30.06.2017 having been repudiated on the 18.09.2017, the 1 st Respondent did proceed to enter the suit property and took over the management of the developments therein without any lawful ownership rights.
viii. The Appellant did plead that the registration of the 1 st Respondent as the lawful owner of the suit property was unprocedural, unlawful and illegal as she had not executed any documents to facilitate the transfer of the same to the 1 st Defendant herein.
ix. In the alternative, the 2 nd Respondent had not exercised its power of sale under the Charge registered on the suit property to enable the 1 st Respondent acquire the same as an innocent purchaser for value.
x. In essence, the Appellant did plead that the all the documents issued by the 2 nd Respondent which facilitated the transfer of the suit property to the 1 st Respondent were done through fraud and collusion hence illegal, unlawful and a nullity.
xi. The Appellant’s prayer was that the 3 rd Defendant be and is hereby Ordered to cancel, rectify and/or delete the name of the 1 st Respondent as the registered owner of the suit property and the same be registered in her name.
12. The Appellant’s suit was duly served on the 1 st , 2 nd and 3 rd Respondents.
13. The 1 st Respondent did file a Statement of Defence dated 29.10.2018 in opposition of the same.
14. In the Statement of Defence dated 29.10.2018, the 1 st Respondent did plead the following facts in opposition of the Appellant’s case; -
i. The 1 st Respondent did admit that there was an Agreement For Sale dated 30.06.2017 with the Appellant regarding the suit property and the consideration was Kenya Shillings Six Million Two Hundred Thousand (KShs.6,200,000/-).
ii. The 1 st Respondent did further confirm that the sum of Kenya Shillings One Million (KShs.1,000,000/-) was to be paid to the Appellant.
iii. In line with this term of the Agreement For Sale dated 30.06.2017, a direct payment of Kenya Shillings Six Hundred Thousand (KShs.600,000/-) was made to the Appellant and the balance of Kenya Shillings Four Hundred Thousand (KShs.400,000/-) was deposited at the Appellant’s Advocate for her collection.
iv. Thereafter, the 1 st and the 2 nd Respondent did enter into a separate loan arrangement wherein the Appellant would be discharged from her financial facility amounting to Kenya Shillings Five Million Two Hundred Thousand (KShs.5,200,000/-) and the same taken over by the 1 st Respondent until payment in full.
v. It was therefore the 1 st Respondent’s pleading that the 2 nd Respondent having fully discharged the Appellant from her financial obligation amounting to Kenya Shillings Five Million Two Hundred Thousand (KShs.5,200,000/-), she had no proprietary rights over the suit property and/or any interest on who was the registered owner of the same.
vi. The 1 st Respondent did further plead that the Appellant, after the execution of the Agreement For Sale dated 30.06.2017, has willingly executed all the necessary and relevant completion documents to facilitate the completion of the same and she cannot claim that the same were obtained through fraud and/or collusion.
vii. In essence, the 1 st Respondent did plead that the full purchase price under the Agreement For Sale dated 30.06.2017 was settled and there is no breach whatsoever of the terms as alleged by the Appellant.
viii. The 1 st Respondent did state that if the Appellant is yet to collect the sum of Kenya Shillings Four Hundred Thousand (KShs.400,000/-) from her Advocate, then such an omission should not be visited on him as a default of the terms in the Agreement For Sale dated 30.06.2017 by the Appellant.
ix. In conclusion, the 1 st Respondent did pray that the Appellant’s suit be dismissed with costs thereof.
15. The 2 nd Respondent did also oppose the Appellant’s suit before the Trial Court through a Statement of Defence dated 14.11.2018.
16. In the Statement of Defence dated 14.11.2018, the 2 nd Respondent did plead the following facts in opposition of the Appellant’s suit; -
i. The 2 nd Respondent did admit that the suit property had been registered in the name of the Appellant until 15.09.2018 when the same was lawfully transferred to the 1 st Respondent.
ii. The 2 nd Respondent did plead that after the execution of the Agreement For Sale dated 30.06.2017, the 1 st Respondent did approach the 2 nd Respondent with a proposal to be financed the balance of Kenya shillings Five Million Two Hundred Thousand (KShs.5,200,000/-) which was due from the Appellant herein.
iii. The 2 nd Respondent did accept this request to refinance the balance of Kenya Shillings Five Million Two Hundred Thousand (KShs.5,200,000/-) owing to the Appellant.
iv. Consequently thereafter, the 2 nd Respondent did accordingly discharge the Appellant from her financial obligations amounting to Kenya Shillings Five Million Two Hundred Thousand (KShs.5,200,000/-) and the suit property became the collateral of the 1 st Respondent.
v. In essence, the 2 nd Respondent did confirm that the Appellant herein was no longer in debt to the 2 nd Respondent and the suit property was to be transferred to the 1 st Respondent upon clearance of the refinanced facility sought by him.
vi. As regards the payment of the sum of Kenya Shillings Four Hundred Thousand (KShs.400,000/-), the 2 nd Respondent did confirm that the same had been deposited at the 1 st Respondent’s Advocates offices for collection by the Appellant but for reason better known to them, the same had never been collected.
vii. In totality, the 2 nd Respondent did deny the allegation that the 1 st Respondent was in breach of any term or condition provided for in the Agreement For Sale dated 30.06.2017 and therefore there is no reason whatsoever for the Appellant to purport to repudiate the Agreement For Sale dated 30.06.2017.
viii. The 2 nd Respondent further plead that the Appellant had freely and voluntarily signed the transfer documents and applied for consent to transfer the suit land to the 1 st Defendant.
ix. The 2 nd Respondent denied the allegations of fraud, collusion, illegality and unlawfulness and denied that the Appellant was entitled to the reliefs sought in the Plaint.
x. The 2 nd Respondent did plead that its actions were premised on the Appellant’s representations and conduct to undertake the transactions in question, on which basis it advanced colossal amounts of money to the 1 st Respondent, thus the Appellant is estopped from denying the legality of the said transactions.
xi. In conclusion therefore, the 2 nd Respondent did seek the Trial Court to dismiss the Appellant’s suit with costs.
17. The 2 nd Respondent in addition to the above Statement of Defence did file a Counter-Claim dated 14.11.2018 seeking the following Orders against the 3 rd Respondent herein; -
a) An Order do issue that the Plaintiff’s name, the Charge subsisting immediately prior to the registration of the Discharge of Charge and the impugned transfer in favour of the 2 nd Defendant be reinstated at the Plaintiff’s costs and the 2 nd Defendant be awarded costs of the Counter-claim.
18. The facts in support of the 2 nd Respondent’s Counter-Claim were as follows;-
I. The Appellant herein had willingly disposed of the suit property to the 1 st Respondent.
II. Thereafter, the 1 st Respondent requested the 2 nd Respondent to refinance the balance outstanding to the Appellant which request was accepted.
III. The Charge between the 1 st Respondent and the 2 nd Respondent was duly prepared and duly executed with the full knowledge of the Appellant who had in turn executed all the necessary documents to facilitate the transaction.
IV. Consequently therefore, the 2 nd Respondent did disburse the outstanding loan amount owing to the Appellant into the 1 st Respondent’s loan account and thereafter discharged the Appellant from any financial liability with the 2 nd Respondent.
V. As such, the suit property herein was transferred from being the collateral of the Appellant to being the collateral of the 1 st Respondent in line with the Agreement For Sale dated 30.06.2017.
VI. However, in the unlikely event the Court would make a finding that the ownership of the suit property was unlawfully alienated in favour of the 1 st Respondent, then the Discharge issued in favour of the 1 st Respondent should be cancelled and the Charge registered in the name of the Appellant reinstated.
19. The 3 rd Respondent did also oppose the Appellant’s suit before the Trial Court through a Statement of Defence dated 29.07.2024.
20. In the Statement of Defence dated 29.07.2024, the 3 rd Respondent did oppose the Appellant’s suit on the following grounds; -
i. The 3 rd Respondent did plead that indeed the suit property herein does exist.
ii. According to the 3 rd Respondent, the suit property was registered in the name of the Appellant on the 18.12.2006.
iii. Thereafter, the Appellant herein did offer the same as a collateral in a Charge dated 26.07.2007 in favour of the 2 nd Respondent for a financial facility of Kenya Shillings One Million Eight Hundred Thousand (KShs.1,800,000/-).
iv. According to the 3 rd Respondent, a Discharge of Charge in favour of the Appellant was registered on the 10.10.2017 and thereafter the suit property was transferred to the 1 st Respondent on the same date.
v. The 3 rd Respondent therefore did plead that it was not privy and/or aware of the alleged Agreement For Sale dated 30.06.2017 and/or the terms therein.
vi. Further to that, the 3 rd Respondent did deny any participation in any acts of fraud and/or collusion as alleged by the Appellant.
vii. The 3 rd Respondent did plead that all the entries in the Register of the suit property were on documents presented for registration and instructions of the parties concerned hence their actions were in good faith.
viii. In conclusion, the 3 rd Respondent did seek the Trial Court to dismiss the Appellant suit with costs.
21. The 1 st , 2 nd and 3 rd Respondents’ Statements of Defence were duly served on the Appellant who filed replies thereto.
22. Upon service of the 1 st Respondent’s Statement of Defence dated 29.10.2018, the Appellant did a Reply to the 1 st Respondent’s Defence dated 10.12.2018 in which the following facts were pleaded; -
i. The Appellant herein did dispute the allegation that the 1 st Respondent had fully settled the consideration on 15.09.2017 as agreed upon in the Agreement For Sale dated 30.06.2017.
ii. The Appellant did plead that the sum of Kenya Shillings Four Hundred Thousand (KShs.400,000/-) was never paid on or before the 15.09.2017.
iii. In addition to the above omission, the 1 st Respondent did not deposit the balance of Kenya Shillings Five Million Two Hundred Thousand (KShs.5,200,000/-) to the 2 nd Respondent as agreed in the Agreement For Sale dated 30.06.2017.
iv. In essence, the Appellant herein was well within her rights to repudiate the Agreement for Sale dated 30.06.2017.
v. The Appellant did plead that after the repudiation of the Agreement For Sale dated 30.06.2017, the suit property did remain as her property and the subsequent documents used by the 2 nd Respondent to transfer the same to the 1 st Respondents were procured through fraud and collusion and therefore illegal, unlawful, null and void.
vi. The Appellant therefore sought the Trial Court to dismiss the 1 st Respondent’s Defence and allow the suit with costs in his favour.
23. The Appellant also did file a Reply to the 2 nd Respondent’s Defence dated 10.12.2018 in which the following facts were pleaded; -
i. The Appellant confirmed that she was the registered owner of the suit land but denied the allegation that she had transferred the same to the 1 st Respondent.
ii. According to the Appellant, if any transfer of the suit property was to take place, then it would have been upon payment of the full purchase price and issuance of a Discharge of Charge in her favour.
iii. The Appellant reiterated that the LSK Conditions of Sale only applied as far as they did not contradict the agreement for sale, and that Clause 13 thereof stopped applying after the breach thereof.
iv. The Appellant did deny receipt of Kenya Shillings Four Hundred Thousand (KShs.400,000/-) from the 1 st Respondent as agreed in the Agreement For Sale dated 30.06.2017.
v. As such, the Appellant did reiterate that the 1 st Respondent was in breach of the terms and conditions contained in the Agreement For Sale dated 30.06.2017, and therefore any transaction geared towards alienating the same from her were done by way of fraud and collusion hence illegal, unlawful, null and void as provided for in the particulars of the Amended suit.
24. The Appellant did also file a Defence to the Counter-Claim dated 10.12.2018 in opposition to the 2 nd Respondent’s Counter -Claim dated 14.11.2018.
25. In the Defence to the Counter-Claim dated 10.12.2018, the Appellant did plead the following facts; -
I) The Appellant did admit to have entered into an Agreement For Sale with the 1 st Respondent regarding the suit property.
II) However, it was a term and condition of the Agreement For Sale between the Appellant and the 1 st Respondent that any breach of the payment therein would result to a repudiation of the entire Agreement For Sale.
III) The Appellant therefore was of the view that the 1 st Respondent’s failure to clear the balance of Kenya Shillings Four Hundred Thousand (KShs.400,000/-) and the balance outstanding with the 2 nd Respondent constituted a breach of the Agreement For Sale hence the same repudiated.
IV) With this position in mind, the Appellant did state that any alleged transfer of the suit property in favour of the 1 st Respondent by the 2 nd Respondent was illegal, unlawful, without her consent and therefore void.
V) The Appellant therefore sought the Trial Court to dismiss the Counter-Claim with costs.
26. The Appellant did also file a Reply to the 3 rd Respondent’s Statement of Defence dated 05.08.2019.
27. In the Reply to the 3 rd Defendant’s Statement of Defence, the Appellant did plead the following facts; -
i. The Appellant did deny the allegations contained the 3 rd Defendant’s Statement of Defence in totality.
ii. The Appellant pleaded that the suit before the Trial Court was meritorious and properly before the Court.
iii. The Appellant did reiterate that the registration of the 1 st Respondent as the lawful owner of the suit property was fraudulent as she never signed any transfer document nor consented to the same.
iv. In conclusion, the Appellant did seek the Trial Court to dismiss the 3 rd Respondent’s case and allow the suit therein.
28. After the above documents were filed, the pleading before the Trial Court were closed and the matter set down for hearing.
APPELLANT’S TESTIMONIES AND DOCUMENTARY EVIDENCE BEFORE THE TRIAL COURT.
29. The Appellant herein was the first witness at the Trial Court and was marked as PW 1.
30. The Appellant did confirm to the Trial Court that she had prepared a witness statement dated 01.10.2018, which she did adopt as her evidence-in-chief.
31. In support of her testimony in chief, the Appellant did produce the following documents; -
PLAINTIFF’S EXHIBIT 1- A Copy of the Agreement For Sale dated 30.06.2017.
PLAINTIFF’S EXHIBTI 2- A Copy of the Letter dated 18.09.2017.
PLAINTIFF’S EXHIBIT 3- A Copy of the Bank’s Letter dated 18.09.2017.
PLAINTIFF’S EXHIBIT 4- A Copy of the Bank’s Statement.
PLAINTIFF’S EXHIBIT 5- A Copy of the Bank’s Letter dated 04.09.2017
PLAINTIFF’S EXHIBIT 6- Copy of the Title Deed
PLAINTIFF’S EXHIBIT 7- A Copy of the Certificate of Lease.
32. According to the testimony of the Appellant, she had guaranteed another person’s loan which had been taken from the 2 nd Respondent.
33. The Appellant did confirm that the collateral granted to the 2 nd Respondent by her as a guarantor was the suit property in issue.
34. Unfortunately, the borrower did not manage to meet the payment obligations and the loan was in arrears.
35. Due to this omission by the Borrower, the 2 nd Respondent did contact the Appellant with a view of notifying her of the default on the part of the Borrower and their intention to dispose of the same.
36. The Appellant, in an effort to clear the facility with the 2 nd Respondent, did independently seek a purchaser of the suit property to be able to raise the funds outstanding and liquidate the facility.
37. It is on this understanding that the Appellant did enter into an Agreement For Sale dated 30.06.2017 with the 1 st Respondent herein.(PLAINTIFF’S EXHIBIT 1)
38. However, the Appellant was of the view that the 1 st Respondent did not meet and/or comply with the terms and conditions of payment outlined in the Agreement For Sale as provided.
39. The Appellant did inform the Court that upon an inquiry with the 2 nd Respondent whether or not the 1 st Respondent had deposited the balance of Kenya Shillings Five Million Two Hundred Thousand (KShs.5,200,000/-) as provided in the Agreement For Sale dated 30.06.2017, she was informed that no payment had been made.(PLAINTIFF’S EXHIBIT 3)
40. It is at this point that she did instruct the advocate to write a letter repudiating the Agreement For Sale dated 30.06.2017 dated 18.09.2017 (PLAINTIFF’S EXHIBIT 2)
41. The Appellant did testify that the 1 st Respondent was to deposit the sum of Kenya Shillings Five Million Two Hundred Thousand (KShs.5,200,000/-) to her Account No. 08500006938 held with the 2 nd Respondent.
42. The Appellant did point out to the Trial Court that she had agreed to guarantee an entity known as KESHIAN AUTO MERCHANTS but the Loan was disbursed to another entity known as PRAYOSHA VENTURES LIMITED.
43. Due to this anomaly, the Appellant did write another letter dated 04.09.2017 to the 2 nd Respondent to point out the same. (PLAIINTIFF EXHIBIT 5).
44. The Appellant did inform the Trial Court that despite this information being relayed to the 2 nd Respondent, a Discharge of Charge was prepared and registered on the suit property without her consent and thereafter the suit property was transferred to the 1 st Respondent herein on the 10.10.2017 (PLAINTIFF EXHIBIT 7)
45. The Appellant did also produce a Copy of the Certificate of Lease in her name. (PLAINTIFF EXHIBIT 6).
46. The Appellant did dispute any allegation that there had been a meeting with the 1 st Respondent and the Land Registrar to discuss the issue of the Discharge of Charge.
47. What the Appellant did inform the Trial Court was that there was a meeting between the 1 st Respondent and the 2 nd Respondent in which she was asked for her passport photos and these are the ones contained in the Transfer Form.
48. The Appellant on being referred to the Transfer Forms did admit that the signatures appearing therein did look like hers but she had not signed the same.
49. The Appellant was of the position that the Agreement For Sale had already been rescinded and she could not have signed any Transfer Forms thereafter.
50. The Appellant further did deny the allegation that she had appeared before an Advocate known as KHISA RONI & COMPANY, ADVOCATES to execute the Transfer Form.
51. The Appellant did testify that the 2 nd Respondent had acted contrary to her instructions by issuing a Transfer in favour of the 1 st Respondent without informing her or giving her consent for the suit property to be discharged.
52. In essence, the Appellant did conclude her evidence in chief by requesting the Trial Court to Order the 2 nd Respondent to return back her title.
53. On Cross-examination by the 1 st Respondent, the Appellant did concede that the 1 st Respondent did not force her to sign the Agreement for Sale dated 30.06.2017.
54. The Appellant did further admit that the purchase price of Kenya Shillings Six Million Two Hundred Thousand (KShs.6,200,000/-) was to be paid in two portions.
55. The first portion of Kenya Shillings One Million (KShs.1,000,000/-0 was to be paid directly to the Appellant and the balance of Kenya Shillings Five Million Two Hundred Thousand (KShs.5,200,000/-) was to be paid to the 2 nd Respondent in settlement of the outstanding loan.
56. The Appellant did inform the Trial Court that the full sum of Kenya Shillings One Million (KShs.1,000,000/-) was made on or before the 15.09.2017.
57. The Appellant did aver that under Paragraph 13 of the Agreement For Sale dated 30.06.2017, the LSK Conditions were to be effected, but the agreement does not indicate that the mode of payment was to her Family Bank Account.
58. On being referred to PLAINTIFF EXHIBIT 3, the Appellant did not have any proof that the letter dated 18.09.2017 had been received by the 2 nd Respondent.
59. On being referred to PLAINTIFF EXHIBIT 2, the Appellant similarly did not have any proof that the same had been received by the 1 st Respondent.
60. Nevertheless, the Appellant did insist that the 1 st Respondent had breached the terms and conditions appertaining to the payment of the purchase price.
61. On further cross-examination by the 2 nd Respondent, the Appellant did inform the Trial Court that she had personally delivered the letter dated 18.09.2017 to the 1 st Respondent and left it
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1. The Appellant herein being dissatisfied by the Judgement and Decree of Hon P.N. Areri (hereinafter referred to as “ the Trial Court” ) pronounced on the 06.06.2023 in the proceeding known as ELDORET CHIEF MAGISTRATES COURT ENVIRONMENT & LAND CASE NO. 204 OF 2018 (hereinafter referred to as “the Trial Court proceedings” ) did file a Memorandum of Appeal dated 09.06.2025 and a Supplementary Record of Appeal dated 03.02.2025 (hereinafter referred to as “the present Appeal” ) against the 1 st to 3 rd Respondents seeking the following Orders; -
i) This Appeal be allowed by setting aside the Judgement of the Lower Court and substitute it with an Order allowing the suit as pleaded in the Amended Plaint with costs of this Appeal and the main suit.
2. The grounds in support of the above prayers were duly outlined in the Memorandum of Appeal dated 09.06.2025 and are as follows; -
a) The Learned Magistrate erred in law and in fact by failure to observe that the Appellant had established fraud against the Respondents.
b) The Learned Magistrate erred in law and in fact by failure to observe that the Appellant had established by evidence of the need to cancel the title issued to the 1 st Respondent.
c) The Learned Magistrate erred in law and in fact by failure to observe that the 1 st and 3 rd Respondents did not call any witnesses hence the Appellants evidence remains unchallenged.
d) The Learned Magistrate erred in law and in fact by failure to find and observe that the Appellant had established the threshold for granting of a permanent injunction.
e) The Learned Magistrate erred in law and in fact by holding that the 1 st and 3 rd Respondents’ rights to be heard were violated when it was plain and clear they were given such opportunity but failed to act.
f) The Learned Magistrate erred in law and in fact demonstrating lack of competency in addressing land matters hence arriving at an erroneous conclusion.
g) The Learned Magistrate erred in law and fact by going outside what the parties had pleaded.
3. The Record of Appeal was served on the 1 st , 2 nd and 3 rd Respondents.
4. The 1 st Respondent upon service of the present Appeal did file Notice of Address of Service dated 11.09.2025 and a Response to the Memorandum of Appeal also dated 11.09.2025 whose contents can be summarised as follows:-
(i) The 1 st Respondent averred that the present appeal is a sham and only contains mere denials to the judgment delivered by the trial court on 06.06.2023.
(ii) That the Memorandum of Appeal does not raise any reasonable appealable issues but only expresses dissatisfaction with the judgment of the Lower Court.
(iii) The Trial Court correctly directed itself by considering the pleadings, evidence adduced and testimonies in delivering the judgment.
(iv) That the present appeal is an abuse of the court process as it is pegged on baseless grounds and that litigation must come to an end.
(v) The 1 st Respondent thus prayed that the appeal be dismissed with costs.
5. The Court did admit the present Appeal for hearing on the 09.02.2026 and directed that it would be canvassed by way of written submissions.
6. The Appellant in compliance with the above directions did file her submissions dated 18.03.2026, the 1 st Respondent file his submissions dated 24.04.2026 while the 2 nd Respondents’ submissions were dated 14.04.2026.
7. The Court in its jurisdiction as the first Appellate Court is guided by the authority of Selle & Another vs Associated Motor Boat Co. Limited & Others (1968) EA 123 , where it was state as follows:-
“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.”
8. Based on the above authority, this Court is required to re-evaluate the evidence before the Trial Court, identify the issues for determination, make its own independent conclusions and then consider whether the Trial Court applied the correct law and facts in arriving at its decision.
9. To be able to achieve this exercise, the Court will now proceed re-evaluate the pleadings and evidence tabled before the Trial Court and identify the issues for determination.
THE PLEADINGS FILED BEFORE THE TRIAL COURT.
10. The Trial Court proceedings were instituted by the Appellant through a Plaint dated 18.01.2018, which was later amended on 01.10.2018, seeking the following Orders against the 1 st , 2 nd and 3 rd Respondent herein; -
(a) A declaration that the Plaintiff is the absolute owner of the whole of that parcel of land known as ELDORET MUNICIPALITY BLOCK 11/1081 and the 1 st Defendant actions amounts to an interference with the Plaintiff’s proprietary interests over the suit land.
(b) A declaration that the transfer and registration of the 1 st Defendant as the owner of land parcel number ELDORET MUNICIPALITY/BLOCK 11/1081 and all the documents used in effecting such registration are unlawful, illegal, null and void and were procured by fraud and in contravention of the law.
(c) An order directing the 3 rd Defendant to cancel the title deed issued to the 1 st Defendant over land parcel number ELDORET MUNICIPALITY/BLOCK 11/1081 and/or rectify the register of the said parcel of land by cancelling the 1 st Defendant’s name as the owner of the parcel of land and substitution therewith the Plaintiff’s name as the owner thereof.
(d) An order of Permanent Injunction to permanently restrain the 1 st Defendant, whether by himself, his agent/servant and/or employee from trespassing into, wasting, leasing, collecting rent, transferring, subletting, interfering with, destruction of property and/or any other way or manner whatsoever on however dealing with the parcel number ELDORET MUNICIPALITY/ BLOCK 11/1081.
(e) An order of Injunction permanently restraining the 1 st Defendant from re-entering into, trespassing upon and or otherwise interfering with the Plaintiff’s parcel number ELDORET MUNICIPALITY/BLOCK 11/1081.
(f) A declaration that the Agreement dated 30 th June, 2017 stands repudiated and the Defendant cannot claim for any right over the said agreement.
(g) An order directing the 1 st Defendant to collect the initial deposit.
(h) Costs of this suit.
(i) Any further relief this Honourable court deems fit and just to grant.
11. The facts in support of the Appellant’s prayers before the Trial Court were as follows; -
i. The Appellant is the lawful owner of the property known as LR.NO.ELDORET MUNICIPALITY BLOCK 11/1081 measuring approximately 0.0134 Hectares (hereinafter referred to as “the suit property” ).
ii. On or about 30.06.2017, the Appellant did enter into an Agreement For Sale of the suit property with the 1 st Respondent for a consideration of Six Million Two Hundred Thousand (KShs.6,200,000/-.)
iii. At the time of execution of the Agreement For Sale dated 30.06.2017, the suit property had been charged to the 2 nd Respondent to secure a financial facility amounting to Kenya Shillings Five Milllion Two Hundred Thousand (KShs.5,200,000/-) by the Appellant.
iv. Consequently, it was a term of the Agreement For Sale dated 30.06.2017 that the initial deposit of Kenya Shillings One Million (KShs.1,000,000/-) would be paid directly to her and the balance of Kenya Shillings Five Million Two Hundred Thousand (KShs.5,200,000/-) would be paid to the 2 nd Respondent to clear the outstanding financial facility and procure the ownership documents therein.
v. The Appellant however did plead that the 1 st Respondent did not pay a sum of Kenya Shillings Four Hundred Thousand (KShs.400,000/-) towards that initial Kenya Shillings One Million (KShs.1,000,000/-) which was to be paid directly to her on or before 15.09.2017, and similarly, the 1 st Respondent did not settle the sum of Kenya Shillings Five Million Two Hundred Thousand (KShs.5,200,000/-) which was to be paid directly to the 2 nd Respondent.
vi. Due to this default on the part of the 1 st Respondent, the Appellant did repudiate the Agreement For Sale dated 30.06.2017 on the 18.09.2017.
vii. The Appellants pleaded that despite the Agreement For Sale dated 30.06.2017 having been repudiated on the 18.09.2017, the 1 st Respondent did proceed to enter the suit property and took over the management of the developments therein without any lawful ownership rights.
viii. The Appellant did plead that the registration of the 1 st Respondent as the lawful owner of the suit property was unprocedural, unlawful and illegal as she had not executed any documents to facilitate the transfer of the same to the 1 st Defendant herein.
ix. In the alternative, the 2 nd Respondent had not exercised its power of sale under the Charge registered on the suit property to enable the 1 st Respondent acquire the same as an innocent purchaser for value.
x. In essence, the Appellant did plead that the all the documents issued by the 2 nd Respondent which facilitated the transfer of the suit property to the 1 st Respondent were done through fraud and collusion hence illegal, unlawful and a nullity.
xi. The Appellant’s prayer was that the 3 rd Defendant be and is hereby Ordered to cancel, rectify and/or delete the name of the 1 st Respondent as the registered owner of the suit property and the same be registered in her name.
12. The Appellant’s suit was duly served on the 1 st , 2 nd and 3 rd Respondents.
13. The 1 st Respondent did file a Statement of Defence dated 29.10.2018 in opposition of the same.
14. In the Statement of Defence dated 29.10.2018, the 1 st Respondent did plead the following facts in opposition of the Appellant’s case; -
i. The 1 st Respondent did admit that there was an Agreement For Sale dated 30.06.2017 with the Appellant regarding the suit property and the consideration was Kenya Shillings Six Million Two Hundred Thousand (KShs.6,200,000/-).
ii. The 1 st Respondent did further confirm that the sum of Kenya Shillings One Million (KShs.1,000,000/-) was to be paid to the Appellant.
iii. In line with this term of the Agreement For Sale dated 30.06.2017, a direct payment of Kenya Shillings Six Hundred Thousand (KShs.600,000/-) was made to the Appellant and the balance of Kenya Shillings Four Hundred Thousand (KShs.400,000/-) was deposited at the Appellant’s Advocate for her collection.
iv. Thereafter, the 1 st and the 2 nd Respondent did enter into a separate loan arrangement wherein the Appellant would be discharged from her financial facility amounting to Kenya Shillings Five Million Two Hundred Thousand (KShs.5,200,000/-) and the same taken over by the 1 st Respondent until payment in full.
v. It was therefore the 1 st Respondent’s pleading that the 2 nd Respondent having fully discharged the Appellant from her financial obligation amounting to Kenya Shillings Five Million Two Hundred Thousand (KShs.5,200,000/-), she had no proprietary rights over the suit property and/or any interest on who was the registered owner of the same.
vi. The 1 st Respondent did further plead that the Appellant, after the execution of the Agreement For Sale dated 30.06.2017, has willingly executed all the necessary and relevant completion documents to facilitate the completion of the same and she cannot claim that the same were obtained through fraud and/or collusion.
vii. In essence, the 1 st Respondent did plead that the full purchase price under the Agreement For Sale dated 30.06.2017 was settled and there is no breach whatsoever of the terms as alleged by the Appellant.
viii. The 1 st Respondent did state that if the Appellant is yet to collect the sum of Kenya Shillings Four Hundred Thousand (KShs.400,000/-) from her Advocate, then such an omission should not be visited on him as a default of the terms in the Agreement For Sale dated 30.06.2017 by the Appellant.
ix. In conclusion, the 1 st Respondent did pray that the Appellant’s suit be dismissed with costs thereof.
15. The 2 nd Respondent did also oppose the Appellant’s suit before the Trial Court through a Statement of Defence dated 14.11.2018.
16. In the Statement of Defence dated 14.11.2018, the 2 nd Respondent did plead the following facts in opposition of the Appellant’s suit; -
i. The 2 nd Respondent did admit that the suit property had been registered in the name of the Appellant until 15.09.2018 when the same was lawfully transferred to the 1 st Respondent.
ii. The 2 nd Respondent did plead that after the execution of the Agreement For Sale dated 30.06.2017, the 1 st Respondent did approach the 2 nd Respondent with a proposal to be financed the balance of Kenya shillings Five Million Two Hundred Thousand (KShs.5,200,000/-) which was due from the Appellant herein.
iii. The 2 nd Respondent did accept this request to refinance the balance of Kenya Shillings Five Million Two Hundred Thousand (KShs.5,200,000/-) owing to the Appellant.
iv. Consequently thereafter, the 2 nd Respondent did accordingly discharge the Appellant from her financial obligations amounting to Kenya Shillings Five Million Two Hundred Thousand (KShs.5,200,000/-) and the suit property became the collateral of the 1 st Respondent.
v. In essence, the 2 nd Respondent did confirm that the Appellant herein was no longer in debt to the 2 nd Respondent and the suit property was to be transferred to the 1 st Respondent upon clearance of the refinanced facility sought by him.
vi. As regards the payment of the sum of Kenya Shillings Four Hundred Thousand (KShs.400,000/-), the 2 nd Respondent did confirm that the same had been deposited at the 1 st Respondent’s Advocates offices for collection by the Appellant but for reason better known to them, the same had never been collected.
vii. In totality, the 2 nd Respondent did deny the allegation that the 1 st Respondent was in breach of any term or condition provided for in the Agreement For Sale dated 30.06.2017 and therefore there is no reason whatsoever for the Appellant to purport to repudiate the Agreement For Sale dated 30.06.2017.
viii. The 2 nd Respondent further plead that the Appellant had freely and voluntarily signed the transfer documents and applied for consent to transfer the suit land to the 1 st Defendant.
ix. The 2 nd Respondent denied the allegations of fraud, collusion, illegality and unlawfulness and denied that the Appellant was entitled to the reliefs sought in the Plaint.
x. The 2 nd Respondent did plead that its actions were premised on the Appellant’s representations and conduct to undertake the transactions in question, on which basis it advanced colossal amounts of money to the 1 st Respondent, thus the Appellant is estopped from denying the legality of the said transactions.
xi. In conclusion therefore, the 2 nd Respondent did seek the Trial Court to dismiss the Appellant’s suit with costs.
17. The 2 nd Respondent in addition to the above Statement of Defence did file a Counter-Claim dated 14.11.2018 seeking the following Orders against the 3 rd Respondent herein; -
a) An Order do issue that the Plaintiff’s name, the Charge subsisting immediately prior to the registration of the Discharge of Charge and the impugned transfer in favour of the 2 nd Defendant be reinstated at the Plaintiff’s costs and the 2 nd Defendant be awarded costs of the Counter-claim.
18. The facts in support of the 2 nd Respondent’s Counter-Claim were as follows;-
I. The Appellant herein had willingly disposed of the suit property to the 1 st Respondent.
II. Thereafter, the 1 st Respondent requested the 2 nd Respondent to refinance the balance outstanding to the Appellant which request was accepted.
III. The Charge between the 1 st Respondent and the 2 nd Respondent was duly prepared and duly executed with the full knowledge of the Appellant who had in turn executed all the necessary documents to facilitate the transaction.
IV. Consequently therefore, the 2 nd Respondent did disburse the outstanding loan amount owing to the Appellant into the 1 st Respondent’s loan account and thereafter discharged the Appellant from any financial liability with the 2 nd Respondent.
V. As such, the suit property herein was transferred from being the collateral of the Appellant to being the collateral of the 1 st Respondent in line with the Agreement For Sale dated 30.06.2017.
VI. However, in the unlikely event the Court would make a finding that the ownership of the suit property was unlawfully alienated in favour of the 1 st Respondent, then the Discharge issued in favour of the 1 st Respondent should be cancelled and the Charge registered in the name of the Appellant reinstated.
19. The 3 rd Respondent did also oppose the Appellant’s suit before the Trial Court through a Statement of Defence dated 29.07.2024.
20. In the Statement of Defence dated 29.07.2024, the 3 rd Respondent did oppose the Appellant’s suit on the following grounds; -
i. The 3 rd Respondent did plead that indeed the suit property herein does exist.
ii. According to the 3 rd Respondent, the suit property was registered in the name of the Appellant on the 18.12.2006.
iii. Thereafter, the Appellant herein did offer the same as a collateral in a Charge dated 26.07.2007 in favour of the 2 nd Respondent for a financial facility of Kenya Shillings One Million Eight Hundred Thousand (KShs.1,800,000/-).
iv. According to the 3 rd Respondent, a Discharge of Charge in favour of the Appellant was registered on the 10.10.2017 and thereafter the suit property was transferred to the 1 st Respondent on the same date.
v. The 3 rd Respondent therefore did plead that it was not privy and/or aware of the alleged Agreement For Sale dated 30.06.2017 and/or the terms therein.
vi. Further to that, the 3 rd Respondent did deny any participation in any acts of fraud and/or collusion as alleged by the Appellant.
vii. The 3 rd Respondent did plead that all the entries in the Register of the suit property were on documents presented for registration and instructions of the parties concerned hence their actions were in good faith.
viii. In conclusion, the 3 rd Respondent did seek the Trial Court to dismiss the Appellant suit with costs.
21. The 1 st , 2 nd and 3 rd Respondents’ Statements of Defence were duly served on the Appellant who filed replies thereto.
22. Upon service of the 1 st Respondent’s Statement of Defence dated 29.10.2018, the Appellant did a Reply to the 1 st Respondent’s Defence dated 10.12.2018 in which the following facts were pleaded; -
i. The Appellant herein did dispute the allegation that the 1 st Respondent had fully settled the consideration on 15.09.2017 as agreed upon in the Agreement For Sale dated 30.06.2017.
ii. The Appellant did plead that the sum of Kenya Shillings Four Hundred Thousand (KShs.400,000/-) was never paid on or before the 15.09.2017.
iii. In addition to the above omission, the 1 st Respondent did not deposit the balance of Kenya Shillings Five Million Two Hundred Thousand (KShs.5,200,000/-) to the 2 nd Respondent as agreed in the Agreement For Sale dated 30.06.2017.
iv. In essence, the Appellant herein was well within her rights to repudiate the Agreement for Sale dated 30.06.2017.
v. The Appellant did plead that after the repudiation of the Agreement For Sale dated 30.06.2017, the suit property did remain as her property and the subsequent documents used by the 2 nd Respondent to transfer the same to the 1 st Respondents were procured through fraud and collusion and therefore illegal, unlawful, null and void.
vi. The Appellant therefore sought the Trial Court to dismiss the 1 st Respondent’s Defence and allow the suit with costs in his favour.
23. The Appellant also did file a Reply to the 2 nd Respondent’s Defence dated 10.12.2018 in which the following facts were pleaded; -
i. The Appellant confirmed that she was the registered owner of the suit land but denied the allegation that she had transferred the same to the 1 st Respondent.
ii. According to the Appellant, if any transfer of the suit property was to take place, then it would have been upon payment of the full purchase price and issuance of a Discharge of Charge in her favour.
iii. The Appellant reiterated that the LSK Conditions of Sale only applied as far as they did not contradict the agreement for sale, and that Clause 13 thereof stopped applying after the breach thereof.
iv. The Appellant did deny receipt of Kenya Shillings Four Hundred Thousand (KShs.400,000/-) from the 1 st Respondent as agreed in the Agreement For Sale dated 30.06.2017.
v. As such, the Appellant did reiterate that the 1 st Respondent was in breach of the terms and conditions contained in the Agreement For Sale dated 30.06.2017, and therefore any transaction geared towards alienating the same from her were done by way of fraud and collusion hence illegal, unlawful, null and void as provided for in the particulars of the Amended suit.
24. The Appellant did also file a Defence to the Counter-Claim dated 10.12.2018 in opposition to the 2 nd Respondent’s Counter -Claim dated 14.11.2018.
25. In the Defence to the Counter-Claim dated 10.12.2018, the Appellant did plead the following facts; -
I) The Appellant did admit to have entered into an Agreement For Sale with the 1 st Respondent regarding the suit property.
II) However, it was a term and condition of the Agreement For Sale between the Appellant and the 1 st Respondent that any breach of the payment therein would result to a repudiation of the entire Agreement For Sale.
III) The Appellant therefore was of the view that the 1 st Respondent’s failure to clear the balance of Kenya Shillings Four Hundred Thousand (KShs.400,000/-) and the balance outstanding with the 2 nd Respondent constituted a breach of the Agreement For Sale hence the same repudiated.
IV) With this position in mind, the Appellant did state that any alleged transfer of the suit property in favour of the 1 st Respondent by the 2 nd Respondent was illegal, unlawful, without her consent and therefore void.
V) The Appellant therefore sought the Trial Court to dismiss the Counter-Claim with costs.
26. The Appellant did also file a Reply to the 3 rd Respondent’s Statement of Defence dated 05.08.2019.
27. In the Reply to the 3 rd Defendant’s Statement of Defence, the Appellant did plead the following facts; -
i. The Appellant did deny the allegations contained the 3 rd Defendant’s Statement of Defence in totality.
ii. The Appellant pleaded that the suit before the Trial Court was meritorious and properly before the Court.
iii. The Appellant did reiterate that the registration of the 1 st Respondent as the lawful owner of the suit property was fraudulent as she never signed any transfer document nor consented to the same.
iv. In conclusion, the Appellant did seek the Trial Court to dismiss the 3 rd Respondent’s case and allow the suit therein.
28. After the above documents were filed, the pleading before the Trial Court were closed and the matter set down for hearing.
APPELLANT’S TESTIMONIES AND DOCUMENTARY EVIDENCE BEFORE THE TRIAL COURT.
29. The Appellant herein was the first witness at the Trial Court and was marked as PW 1.
30. The Appellant did confirm to the Trial Court that she had prepared a witness statement dated 01.10.2018, which she did adopt as her evidence-in-chief.
31. In support of her testimony in chief, the Appellant did produce the following documents; -
PLAINTIFF’S EXHIBIT 1- A Copy of the Agreement For Sale dated 30.06.2017.
PLAINTIFF’S EXHIBTI 2- A Copy of the Letter dated 18.09.2017.
PLAINTIFF’S EXHIBIT 3- A Copy of the Bank’s Letter dated 18.09.2017.
PLAINTIFF’S EXHIBIT 4- A Copy of the Bank’s Statement.
PLAINTIFF’S EXHIBIT 5- A Copy of the Bank’s Letter dated 04.09.2017
PLAINTIFF’S EXHIBIT 6- Copy of the Title Deed
PLAINTIFF’S EXHIBIT 7- A Copy of the Certificate of Lease.
32. According to the testimony of the Appellant, she had guaranteed another person’s loan which had been taken from the 2 nd Respondent.
33. The Appellant did confirm that the collateral granted to the 2 nd Respondent by her as a guarantor was the suit property in issue.
34. Unfortunately, the borrower did not manage to meet the payment obligations and the loan was in arrears.
35. Due to this omission by the Borrower, the 2 nd Respondent did contact the Appellant with a view of notifying her of the default on the part of the Borrower and their intention to dispose of the same.
36. The Appellant, in an effort to clear the facility with the 2 nd Respondent, did independently seek a purchaser of the suit property to be able to raise the funds outstanding and liquidate the facility.
37. It is on this understanding that the Appellant did enter into an Agreement For Sale dated 30.06.2017 with the 1 st Respondent herein.(PLAINTIFF’S EXHIBIT 1)
38. However, the Appellant was of the view that the 1 st Respondent did not meet and/or comply with the terms and conditions of payment outlined in the Agreement For Sale as provided.
39. The Appellant did inform the Court that upon an inquiry with the 2 nd Respondent whether or not the 1 st Respondent had deposited the balance of Kenya Shillings Five Million Two Hundred Thousand (KShs.5,200,000/-) as provided in the Agreement For Sale dated 30.06.2017, she was informed that no payment had been made.(PLAINTIFF’S EXHIBIT 3)
40. It is at this point that she did instruct the advocate to write a letter repudiating the Agreement For Sale dated 30.06.2017 dated 18.09.2017 (PLAINTIFF’S EXHIBIT 2)
41. The Appellant did testify that the 1 st Respondent was to deposit the sum of Kenya Shillings Five Million Two Hundred Thousand (KShs.5,200,000/-) to her Account No. 08500006938 held with the 2 nd Respondent.
42. The Appellant did point out to the Trial Court that she had agreed to guarantee an entity known as KESHIAN AUTO MERCHANTS but the Loan was disbursed to another entity known as PRAYOSHA VENTURES LIMITED.
43. Due to this anomaly, the Appellant did write another letter dated 04.09.2017 to the 2 nd Respondent to point out the same. (PLAIINTIFF EXHIBIT 5).
44. The Appellant did inform the Trial Court that despite this information being relayed to the 2 nd Respondent, a Discharge of Charge was prepared and registered on the suit property without her consent and thereafter the suit property was transferred to the 1 st Respondent herein on the 10.10.2017 (PLAINTIFF EXHIBIT 7)
45. The Appellant did also produce a Copy of the Certificate of Lease in her name. (PLAINTIFF EXHIBIT 6).
46. The Appellant did dispute any allegation that there had been a meeting with the 1 st Respondent and the Land Registrar to discuss the issue of the Discharge of Charge.
47. What the Appellant did inform the Trial Court was that there was a meeting between the 1 st Respondent and the 2 nd Respondent in which she was asked for her passport photos and these are the ones contained in the Transfer Form.
48. The Appellant on being referred to the Transfer Forms did admit that the signatures appearing therein did look like hers but she had not signed the same.
49. The Appellant was of the position that the Agreement For Sale had already been rescinded and she could not have signed any Transfer Forms thereafter.
50. The Appellant further did deny the allegation that she had appeared before an Advocate known as KHISA RONI & COMPANY, ADVOCATES to execute the Transfer Form.
51. The Appellant did testify that the 2 nd Respondent had acted contrary to her instructions by issuing a Transfer in favour of the 1 st Respondent without informing her or giving her consent for the suit property to be discharged.
52. In essence, the Appellant did conclude her evidence in chief by requesting the Trial Court to Order the 2 nd Respondent to return back her title.
53. On Cross-examination by the 1 st Respondent, the Appellant did concede that the 1 st Respondent did not force her to sign the Agreement for Sale dated 30.06.2017.
54. The Appellant did further admit that the purchase price of Kenya Shillings Six Million Two Hundred Thousand (KShs.6,200,000/-) was to be paid in two portions.
55. The first portion of Kenya Shillings One Million (KShs.1,000,000/-0 was to be paid directly to the Appellant and the balance of Kenya Shillings Five Million Two Hundred Thousand (KShs.5,200,000/-) was to be paid to the 2 nd Respondent in settlement of the outstanding loan.
56. The Appellant did inform the Trial Court that the full sum of Kenya Shillings One Million (KShs.1,000,000/-) was made on or before the 15.09.2017.
57. The Appellant did aver that under Paragraph 13 of the Agreement For Sale dated 30.06.2017, the LSK Conditions were to be effected, but the agreement does not indicate that the mode of payment was to her Family Bank Account.
58. On being referred to PLAINTIFF EXHIBIT 3, the Appellant did not have any proof that the letter dated 18.09.2017 had been received by the 2 nd Respondent.
59. On being referred to PLAINTIFF EXHIBIT 2, the Appellant similarly did not have any proof that the same had been received by the 1 st Respondent.
60. Nevertheless, the Appellant did insist that the 1 st Respondent had breached the terms and conditions appertaining to the payment of the purchase price.
61. On further cross-examination by the 2 nd Respondent, the Appellant did inform the Trial Court that she had personally delivered the letter dated 18.09.2017 to the 1 st Respondent and left it
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