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ELCAllowedKisumu ELC Appeal (Memorandum of Appeal dated 21st September, 2023)

Apiyo v Omwa (Environment and Land Appeal E016 of 2023) [2025] KEELC 6440 (KLR)

Environment and Land Court
25 September 2025
EAE. Asati
2,988 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court threw out a Kshs.783,000 refund order because no one proved the amount was ever actually agreed.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Kisumu against the judgment of the Principal Magistrate delivered on 28th August, 2023 in Kisumu CMC ELC Case No. 423 of 2018. The underlying dispute arose from a 1991 agreement in which the Respondent claimed to have purchased a portion of land parcel Kisumu/Korando/1288 from the Appellant. After the transaction failed, the parties allegedly entered into a further agreement on 5th April, 2015 under which the Appellant would refund Kshs.800,000/- as the current market value, paid Kshs.17,000/- with a balance of Kshs.783,000/- owing. The trial court found for the Respondent and ordered the Appellant to refund Kshs.783,000/- with costs and interest, having declined specific performance and damages. The Appellant appealed, contending the 2015 agreement was overreaching, oppressive and unconscionable, made without consensus ad idem, and exploited his illiteracy and advanced age. The appeal was unopposed by submissions. The court, re-examining the evidence as required on a first appeal, held that the Respondent bore the burden under Sections 107 to 109 of the Evidence Act of proving the agreed sum but discharged it; there was no valuation or evidence of how Kshs.800,000/- was computed, the draftsman was not called, and the Appellant's undisputed illiteracy placed him in a disadvantaged position. The court found the agreement unconscionable and unenforceable. The appeal was allowed, the trial court's judgment set aside, with each party bearing their own costs of the suit and the costs of the appeal awarded to the Appellant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the agreement dated 5th April, 2015 was unconscionable, oppressive and therefore unenforceable
  2. 2.Whether there was consensus ad idem on the amount to be refunded (Kshs.800,000/- or Kshs.17,500/-)
  3. 3.Whether the trial court erred in failing to consider the Appellant's evidence and submissions

Key legal issues

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01

Whether the agreement dated 5th April, 2015 was unconscionable and unenforceable

Holding

The agreement was unconscionable and unenforceable; the trial court erred in enforcing it

Reasoning

The court found no evidence that Kshs.800,000/- was ever agreed or how it was computed; there was no valuation. The Appellant's illiteracy was undisputed, the original sale price was Kshs.17,500 (or Kshs.7,000 per the Appellant), Kshs.17,500 had already been refunded, the sale was not subjected to the Land Control Act, and the agreement was made while the case was pending in court. The sum was thus oppressive and unfair to a disadvantaged party.

p. 6
02

Burden of proving the terms of the 5th April, 2015 agreement

Holding

The Respondent failed to discharge the burden of proving that the Appellant agreed to refund Kshs.800,000/-

Reasoning

Under Sections 107 to 109 of the Evidence Act, the party asserting must prove. The Respondent alleged the Kshs.800,000/- represented current market value but produced no valuation or evidence of how the figure was computed, and the draftsman of the agreement was not called as a witness.

p. 6

Legal principles established

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  • On a first appeal, the court has a duty to re-examine and analyze the evidence placed before the trial court to arrive at independent findings
  • An agreement which places an unconscionable burden on a disadvantaged party, particularly one who is illiterate and where the consideration was never agreed or substantiated, is oppressive, unfair and unenforceable
  • The party asserting the existence and terms of an agreement bears the burden of proving it

Court orders

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  1. 1.The appeal is allowed
  2. 2.The judgment of the trial court dated 28th August, 2023 requiring the Appellant to refund Kshs.783,000/- and pay costs of the suit is set aside
  3. 3.Each party to bear own costs of the suit
  4. 4.The costs of the appeal are awarded to the Appellant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

EA
majority

Wrote the judgment

On appeal from
Chief Magistrate's Court at Kisumu (Kisumu CMC ELC Case No. 423 of 2018, formerly Kisumu ELC Case No. 724 of 2015, originally Kisumu HCC No. 106 of 2010)
Kisumu CMC ELC Case No. 423 of 2018
Jurisdiction invoked
First appeal from the Chief Magistrate's Court under the Environment and Land Court Act

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The appeal is therefore hereby allowed. The judgement of the trial court dated 28th August, 2023 requiring the Appellant to refund Kshs.783,000/- and pay costs of the suit is hereby set aside.
p. 6Final orders - appeal allowed and trial judgment set aside
Each party to bear own costs of the suit. The costs of the appeal are awarded to the Appellant. Orders accordingly.
p. 6Costs order
I find that the agreement dated 5th April, 2015 was unconscionable and therefore unenforceable for 2 reasons. Firstly, there is no evidence that the amount of Kshs.800,000/- was agreed on or how it was arrived at.
p. 6Unconscionability of the 2015 agreement
It was the burden of the Respondent under the provisions of Section 107 to 109 of the Evidence Act to prove that indeed the Appellant agreed to pay Kshs.800,000/-. This burden has not been discharged.
p. 6Burden of proof

Issues in the judgment

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minor

The judgment inconsistently dates the unconscionable agreement as 5th April, 2015 in most passages but refers to '5th April, 2025' in paragraph 48

minor

Paragraph numbering in the judgment is irregular, jumping from paragraph 51 directly to paragraph 55

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, "Apiyo v Omwa (Environment and Land Appeal E016 of 2023) [2025] KEELC 6440 (KLR)", Case Analysis (2025). Kisumu ELC Appeal (Memorandum of Appeal dated 21st September, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6440/eng@2025-09-25

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