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ELCPartially AllowedELC Appeal (Baricho PMC ELC 14 of 2021)· [2025] KEELC 1430 (KLR)

Mwai v Kabuga & another (Environment and Land Appeal E004 of 2023) [2025] KEELC 1430 (KLR)

Environment and Land Court
20 March 2025
3,626 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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The court split a land debt equally between two parties, so one man who had already paid most of his share got his title back after paying a small balance.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Kerugoya against the judgment of Hon. S.M. Nyaga (SRM) in Baricho PMC ELC 14 of 2021, delivered on 26th January 2023. The Lower Court had declared the 1st Respondent the legal owner of land parcel Kiine/Gacharo/2787, ordered the Appellant to vacate, and in the alternative directed the Appellant and the 2nd Respondent to jointly and severally refund Kshs 1,750,000/- with costs and interest, while dismissing the Appellant's Counterclaim. The dispute arose from a fraudulent sale of land parcel Makuyu/Kimorori/Block III (Kagaa)/635 by the Appellant and the 2nd Respondent to the 1st Respondent, followed by a Memorandum of Understanding dated 26th August 2019 under which the Appellant's title to Kiine/Gacharo/2787 was pledged as security for refund of the purchase price, costs and damages. The ELC, applying Selle v Associated Motor Boat Co., re-evaluated the evidence and identified three issues concerning the scope of the security, the discharge of the Appellant's liability, and unjust enrichment. The court held that although the title secured the entire debt, the Appellant and the 2nd Respondent were to share liability equally, not jointly and severally. Having paid Kshs 1,450,000/-, the Appellant's equal share of Kshs 1,600,000/- left only Kshs 150,000/- unpaid, with the balance of Kshs 1,600,000/- falling on the 2nd Respondent. The Trial Magistrate's failure to account for the refund while decreeing the land to the 1st Respondent was found to constitute unjust enrichment and a misdirection. The appeal partly succeeded: the Lower Court judgment was set aside and substituted with an alternative refund decree apportioned between the Appellant and the 2nd Respondent, with retransfer of the security land upon payment, and each party bearing their own costs of the Appeal.

Key legal issues

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01

Scope of security under the Memorandum of Understanding

Holding

The title to Kiine/Gacharo/2787 was pledged as security for the entire refund liability of both the Appellant and the 2nd Respondent, but their liability inter se was equal, not joint and several.

Reasoning

The MOU defined '1st parties' as both the Appellant and the 2nd Respondent, who undertook to pay the purchase price, costs and damages, with the same to be shared equally between the two. The land was to secure the full amount until paid. The court refused to rewrite the contract and held liability should be apportioned equally as agreed, not jointly and severally as the Trial Magistrate ordered.

p. 6
02

Discharge of the Appellant's liability

Holding

Having paid Kshs 1,450,000/-, the Appellant had paid slightly more than half of the Kshs 3,200,000/- liability; only a balance of Kshs 150,000/- remained of his equal share.

Reasoning

The total liability found by the Lower Court was Kshs 3,200,000/-. Shared equally, each of the Appellant and the 2nd Respondent owed Kshs 1,600,000/-. The Appellant having paid Kshs 1,450,000/-, he owed only Kshs 150,000/-. Had he paid Kshs 1,600,000/- he would have fully discharged his liability; the balance fell on the 2nd Respondent.

p. 7
03

Unjust enrichment

Holding

The Trial Magistrate's failure to account for the Kshs 1,450,000/- refund while decreeing the land to the 1st Respondent amounted to unjust enrichment and was a misdirection.

Reasoning

The Trial Court decreed the suit land to the 1st Respondent and ordered vacant possession but said nothing about the Kshs 1,450,000/- paid by the Appellant. That would leave the 1st Respondent with both the land and the money, which the appellate court found inequitable and a clear misdirection justifying interference with the judgment.

p. 7

Legal principles established

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  • Parties are bound by the terms of contracts they voluntarily and freely enter into and the court will not re-write a contract for them
  • A decree that leaves a party with both the money refunded and the land pledged as security constitutes unjust enrichment
  • On first appeal the court must re-evaluate the evidence and draw its own conclusions

Court orders

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  1. 1.Judgment of the Learned Trial Magistrate dated 26th January 2023 set aside and substituted with judgment for the 1st Respondent on alternative prayer (b) of the Plaint
  2. 2.Appellant to pay Kshs 150,000/- with interest at court rates from 26th January 2023 until payment in full
  3. 3.2nd Respondent to pay Kshs 1,600,000/- with interest at court rates from 26th January 2023 until payment in full
  4. 4.1st Respondent, upon the Appellant honouring order 1(a), to retransfer land parcel No. Kiine/Gacharo/2787 unconditionally to the Appellant David Nguуo Mwai, with the Deputy Registrar authorized to execute documents if the 1st Respondent fails to do so
  5. 5.Each party to bear their own costs of the Appeal

Authorities

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Cases cited (6)

  • Robinson v. Harman
    (1848) 1 EXCH 850
  • Mafatlal Industries Limited v. Union of India
    (1997) 5 SCC 536
  • Hussamudin Gulamhussein Pothiwalla, Administrator, Trustee, and Executor of the Estate of Gulamhussein Ebrahim Pothiwalla versus Kidogo Basi Housing Cooperative Society Limited and 31 others
    Civil Appeal No. 330 of 2003
  • Housing Finance Co. of Kenya Limited versus Gilbert Kibe Njuguna
    Nairobi HCCC No. 1601 of 1999
  • County Government of Migori v. Hope Self Help Group
    (2020) eKLR
  • Selle & Another vs. Associated Motor Boat Co. Ltd & Others
    [1968] EA 123
On appeal from
Baricho Principal Magistrate's Court
PMC ELC 14 of 2021
Jurisdiction invoked
First appellate jurisdiction over the subordinate court's ELC decision (appeal by way of retrial per Selle v Associated Motor Boat Co.)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mwai v Kabuga & another (Environment and Land Appeal E004 of 2023) [2025] KEELC 1430 (KLR)", Case Analysis (2025). ELC Appeal (Baricho PMC ELC 14 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1430/eng@2025-03-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.