Choge & another v Kamar
The bottom line
#Kenya's Environment and Land Court voided a land sale agreement that was actually disguised loan security, ordering the buyers to return the title and refund KShs 4.5 million.
What this practically means
#Executive summary
#Key legal issues
#Whether the sale agreement and the acknowledgment of debt were one transaction
They refer to the same transaction; the sale agreement was a front/security for a loan advanced to the Defendant's children
Both documents were executed on the same date for the same sum of KShs. 19,500,000/-, payable within the same 30 days, matching the 30 days the Plaintiffs were allowed to retain the title. The 1st Plaintiff's own testimony that monies advanced were to go into the Defendant's account confirmed the transactions were interconnected, not separate as alleged.
Whether the agreement was a valid contract
It was not valid or binding because the Plaintiffs failed to prove payment of the consideration
The Defendant and her witnesses testified no money changed hands at the advocate's office, corroborated by the advocate's police statement. The burden shifted to the Plaintiffs, who produced no cash withdrawals, transfers or evidence of the alleged airtime business. Without proof of consideration, the agreement cannot stand.
Whether the agreement was illegal or unconscionable
It was both unconscionable and illegal, being calculated to seize the Defendant's property
The Plaintiffs held all the bargaining power; the Defendant and her children were in urgent need of funds. The 30% one-month interest (approx. 7.5% weekly) was oppressive. The Plaintiffs also sought to recover more than twice the money advanced by claiming two transactions, and dishonestly referenced the suit's case number before filing.
Whether any money was due and owing between the parties
The sums due (KShs. 15,000,000/- principal plus KShs. 4,500,000/- penalty) were paid in full; the Plaintiffs were overpaid by KShs. 4,500,000/- which must be refunded
The Plaintiffs admitted in police statements that they had been paid KShs. 24,000,000/- and had no further claim. Bank statements and RTGS transfers from Sotimarie's accounts corroborated payments totalling KShs. 24,000,000/-. Since only KShs. 19,500,000/- was due, the excess of KShs. 4,500,000/- must be refunded to avoid unjust enrichment.
Legal principles established
#- A valid, legally binding contract requires offer, acceptance, consideration, legal capacity, legality of purpose and certainty of terms; without proof that consideration was paid, an agreement for sale is not valid or binding
- Where a party discharges its burden of proof on an allegation, the burden shifts to the party asserting payment to prove it
- Courts will not enforce contracts that are illegal, unconscionable or contrary to public policy, even where parties agreed on the terms
- Freedom of contract is not absolute and may be limited where terms are unfair, unconscionable, or contrary to public policy
Court orders
#- 1.The Plaintiffs' suit in the Plaint dated 7th December, 2017 is dismissed with costs
- 2.A declaration that the sale agreement dated 26th January, 2017 is void ab initio
- 3.An order directing the Plaintiffs to immediately surrender to the Defendant the original Title Deed for L.R. No. Kiplombe/Kiplombe Block 10 (GROWEL) 835, all transfer instruments, application to the Land Control Board and all documents delivered on the strength of the sale agreement
- 4.The Plaintiffs to refund to the Defendant the sum of KShs. 4,500,000/- coercively and unduly paid as the last instalment to facilitate release of the Original Title Deed
- 5.The Defendant shall have costs of this suit plus interest thereon
- Jurisdiction invoked
- Environment and Land Court jurisdiction under Article 162(2)(b) of the Constitution over land disputes (implied by the suit's nature; no express provision quoted)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Choge & another v Kamar", Case Analysis (2026). Environment and Land Case 390 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5463/eng@2026-09-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.