The Appellant Vitalis O. Omolo was the Plaintiff in Kisumu CMC ELC NO. E028 OF 2021 (the suit) wherein vide the plaint dated 26th February, 2021, he had sued the Respondent over a parcel of land known as KISUMU/KANYAWEGI/3508. The Appellant claimed that vide an agreement dated 7th October, 1999 he had bought the land from the Defendant at an agreed purchase price of Kshs.60,000/= which he paid in full. That he took possession of the land and had been cultivating the same. That the Respondent had however failed to take any steps to transfer the land to him. He therefore sought for orders of;
- specific performance directed at the Defendant to fulfil her obligation under the agreement for sale of land dated 7th October, 2009.
- In the alternative, an order for refund of the full purchase price together with interest from 21st January, 2010 till payment in full
- Costs of the suit and interest thereon.
In response to the suit, the Respondent filed a Statement of Defence dated 3rd May, 2021 denying the Appellant’s claim.
The record of appeal shows that the suit was heard by the trial court which vide the judgement dated 29th June, 2023 found that the Appellant had not proved his case on a balance of probabilities and dismissed the case with costs to the Respondent.
The Appeal
Aggrieved by the Judgement the Appellant filed the present appeal vide the Memorandum of Appeal dated 7th July, 2023 seeking that the appeal be allowed, the orders, decision and judgement of the Senior Principal Magistrate’s Court make on 29th June, 2023 be set side and costs of the appeal be provided for.
The appeal was heard by way of written submissions.
The substantive issue for determination is whether or not the Appellant proved his claim before the trial court.
As this is a first appeal, the court has an obligation to review and re-examine the evidence placed before the trial court, thus determine whether the trial court erred in its findings and decision. In the case of Selle and another vs Associated Motor Boat Company Ltd and others 1968 E.A 123 it was held that:
“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 reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has never seen nor heard the witnesses and should make due allowance in this respect. In particular this court is not- necessarily bound to follow the trial court’s findings of fact if it appears either that he clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.”
From the record of appeal, it is clear that the evidence placed before the trial court by the Appellant comprised of the Appellant’s testimony, the testimony of PW2 and PW3 and the documents tendered as exhibits. The Appellant who testified as PW1 adopted the contents of his witness statement dated 12th October, 2020 as his evidence in chief.
It is clear from his testimony that his claim was anchored on a land sale agreement dated 7th October, 2009 vide which he claimed to have bought the suit land parcel number KISUMU/KANYAWEGI/3508 from the Defendant. The agreement which he produced as exhibit shows firstly that the purchaser’s name does not appear at the place for signing/executing. Secondly, while it is indicated that the Vendor and the Purchaser had subjected their respective hands to the agreement on the day and year mentioned, only one thumbprint appears.
The same applies to the agreement dated 21st January, 2010 also produced by the appellant to show that he paid the purchase price in full.
On cross-examination, the Appellant conceded that he did not sign the agreement and that as at the time he was buying the land, it was in the name of Dalmas and that succession had not been done to the estate of Dalmas.
PW2 was Cephas Odhiambo Kasera whose evidence was essentially to the effect that the Appellant had been using the suit land since the date of purchase. He however stated that he did not witness the sale transaction and that his name does not appear on the agreement.
PW3 Peter Oulu Oyola testified that he knew that the Appellant bought land from the Respondent. He testified that he did not witness the sale and his name was not on the agreement.
None of the people whose names appear in the sale agreement as witnesses was called as a witness to authenticate the appellant’s claim.
The Respondent on her part testified as DW1 and called no witness. She adopted the contents of her witness statement dated 3rd May, 2024 as her evidence. She stated that the Appellant gave her some money as a loan to enable her fix the roof of her house which was leaking. That when she tried to return the money, the Appellant declined to take it and insisted that he wanted land.
She stated that she does not own the suit land as the same belongs to the late Dalmas Odiko and his family and that she has no beneficial interest in it.
That if at all she signed any agreement then same was for money which she believed was a loan to enable her fix her leaking roof.
On cross-examination DW1 stated that she would repay the amount paid to her. Although she did not state how much money she was given as loan, she admitted that the amount recorded was Kshs.60,000/-.
The prayer for specific performance required that the court makes an order that the Respondent performs or fulfils her part of the agreement. Specific performance is a contractual remedy in which a court orders a party to fulfil their obligation as promised in the contract. In Black’s Law Dictionary, 11th Edition (Bryan A. Garner Editor in chief) specific performance is defined as
“the rendering as nearly as practicable of a promised performance through judgement or decree … a court ordered remedy that requires precise fulfilment of a legal or contractual obligation when monetary damage are inappropriate or inadequate….”In essence the remedy of specific performance enforces the execution of a contract according to its terms ….”
In the case of Reliable Electrical Engineers Ltd -vs- Matrac Kenya Limited [2006]eKLR where it was held inter alia that the jurisdiction of specific performance is based on 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 requirement or mistake or illegality which makes the contract invalid or unenforceable.
In the present case, it is not contested that the land the subject of the alleged sale did not belong to the Respondent hence she has no capacity to sell or transfer the land to the appellant. Secondly, the agreement was not properly executed in accordance with the provisions of Section 3(3) of the Law of Contract Act in order to be enforceable.
Having carefully re-examined the pleadings, evidence and submissions placed before the trial court, this court finds that the Appellant did not prove that this prayer was available.
The trial court did not therefore err in not awarding this prayer.
Regarding the alternative prayer for refund, it is not denied that money was paid by the Appellant to the Respondent. The parties are however unable to agree on the purpose of the money. While the Appellant claims that the money was purchase price for the suit land, the Respondent maintains it was a loan to enable her repair her leaking roof.
Be that as it may, the Respondent conceded on cross-examination that she would refund the money which she said was recorded as Kshs.60,000/=.
This court finds that the trial court erred in failing to award the prayer for refund in favour of the Appellant.
For the foregoing reason, I find that the appeal has merit and hereby allow it as follows;
- Judgement of the trial court is set aside and replaced with judgement in favour of the Appellant for Kshs.60,000/- being refund of money paid by the Appellant to the Respondent
- Costs of the appeal awarded to the appellant.
- Interest on (a) and (b) at court rate.
Orders accordingly.
Judgement dated and signed at Kisumu and delivered this 5th day of June, 2025 virtually through Microsoft Teams Online Application.
E. ASATI,
JUDGE.
In the presence of:
Maureen - Court Assistant.
Appellant present in person.
Respondent present in person.