Ong’undi v Odhiambo (Environment and Land Appeal E011 of 2025) [2026] KEELC 472 (KLR)
The bottom line
#A land buyer lost a Kshs. 2.3 million refund order because he couldn't prove the seller actually received his money.
What this practically means
#Executive summary
#Key legal issues
#Burden of proof of payment of the purchase price
The burden rested on the respondent to prove that he paid the money to the appellant or that the appellant received it, and that burden was not discharged on a balance of probabilities
The respondent testified that he paid the money through his lawyer to the appellant's lawyer, but the land sale agreement contained no express clause requiring payment through the appellant's advocates. PW2 acknowledged receipt of Kshs. 2,307,509/= but no bank statements, pay-in-slips or other documentary evidence were produced to show the money reached the appellant. The appellant denied receipt of any amount.
Reliance on a draft defence as a pleading
The draft defence relied on by the trial court (in which the defendant was said to have admitted receiving Kshs. 2,307,509/=) was not a pleading in the case and could not support judgment
The trial court had based its finding of an admission on a draft statement of defence attached to an application for setting aside interlocutory judgment. The appellate court held that such a draft was not a pleading in the case, so the purported admission could not found the decree for refund.
Foundation for an order of refund
In the absence of evidence that money was paid to the appellant and of a clause allowing payment through the appellant's advocate, the trial court erred in finding for the respondent
Relying on KCB v Osebe and Olegasalie New Properties Limited v Lematasho, the court reasoned that a refund order requires a factual and legal foundation and that restitution presupposes unjust enrichment under an enforceable or partially performed contract. With no proof of payment, the refund decree could not stand.
Legal principles established
#- A first appellate court must reconsider the whole evidence, re-evaluate it and arrive at its own independent conclusion while making due allowance for not having seen or heard the witnesses
- A court must be satisfied of the factual and legal foundation of an order before granting it
- Restitution by way of refund of the purchase price arises only where a party has been unjustly enriched under an enforceable or at least partially performed contract
Court orders
#- 1.Appeal allowed
- 2.Judgment of the trial court set aside and replaced with a judgment dismissing the respondent's suit
- 3.Each party to bear own costs of the appeal
- On appeal from
- Magistrates' Court, Kisumu (ELC)
- Kisumu MCELC Case No. 447 of 2018
- Jurisdiction invoked
- First appellate jurisdiction over a magistrates' court decree (Civil Procedure Act); appeal against judgment and decree dated 21st January 2025
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ong’undi v Odhiambo (Environment and Land Appeal E011 of 2025) [2026] KEELC 472 (KLR)", Case Analysis (2026). Not stated in the judgment (Memorandum of Appeal dated 17th February 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/472/eng@2026-02-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.