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ELCDismissedELC Appeal No. E032 of 2022· [2026] KEELC (Migori)

Fred Genga Atieno v Nancy Adhiambo Oswera & Owuor Okoth Alex

Environment and Land Court of Kenya
29 September 2026
6,391 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This first appeal arose from a Migori Chief Magistrate's decree ordering the Appellant to refund Kshs. 120,000/- to the 1st Respondent with costs and interest at court rates, after the trial court declined specific performance of a sale agreement over parcel Nyatike/Kolal/426, registered in the 2nd Respondent's name. The Appellant admitted receiving the money but claimed it was repayment of an undocumented loan allegedly advanced to the 1st Respondent's mother, and alleged the sale agreement bore forged fingerprints. The ELC framed six issues, including the duty on a first appeal, receipt and characterisation of the payment, burden of proof, whether invalidity of the agreement barred a refund, and the discretionary awards. The court held the admission of receipt, the written agreement and M-Pesa records established payment as purchase consideration. The loan defence failed for want of writing under section 3 of the Law of Contract Act, absent disbursement records, inconsistent dates, and the borrower's absence as a witness. The forgery allegation, requiring strict proof, was a bare assertion. Critically, the court held that although the transaction was void under section 6(1) of the Land Control Act for want of Land Control Board consent, section 7 made the consideration recoverable as a debt, and unjust enrichment reinforced that conclusion. Costs and interest awards were judiciously exercised. The appeal was dismissed in its entirety, the trial decree upheld, interest clarified to run from filing of suit, and costs of the appeal awarded to the 1st Respondent only.

Key legal issues

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01

Whether the Appellant received Kshs. 120,000/- and on what account

Holding

Receipt was admitted and proved; the account was the purchase consideration under the agreement of 5th February 2021, not repayment of a loan

Reasoning

The Appellant admitted receipt in his defence, witness statement and testimony. The written agreement recited the sum as consideration, corroborated by M-Pesa records of Kshs. 110,000/- moving at execution and by conduct (transfer documents released). The loan explanation was undocumented, inconsistent on dates, and the alleged borrower was never called.

p. 13
02

Whether the burden of proof was shifted onto the Appellant

Holding

No shift occurred; once receipt was admitted, the evidential burden properly lay on the Appellant under sections 109 and 112 of the Evidence Act

Reasoning

The legal burden on the 1st Respondent to prove payment and its purpose was discharged by the agreement, M-Pesa records and the Appellant's admission. The Appellant then bore the evidential burden on the loan and forgery allegations, being facts especially within his knowledge.

p. 18
03

Whether invalidity or illegality of the sale agreement barred the refund

Holding

No; the refund rested on section 7 of the Land Control Act and did not enforce the void agreement; unjust enrichment reinforces the conclusion

Reasoning

The trial court declined specific performance and awarded a monetary refund. The parcel was agricultural land in a land control area; the transaction became void under section 6(1) for want of consent, and section 7 makes consideration paid recoverable as a debt. The equitable principle of unjust enrichment merely reinforces this statutory basis.

p. 23
04

Whether the awards of interest and costs were exercised judiciously

Holding

Yes; costs followed the event and interest at court rates was a proper statutory discretion, though the appeal court clarified the date interest should run

Reasoning

Under sections 26(1) and 27(1) of the Civil Procedure Act, costs follow the event and interest on money decrees is discretionary. The trial court's discretion was not injudicious. The typed judgment omitted the date interest was to run, so the appellate court clarified that interest runs at court rates from filing of suit until payment in full.

p. 25

Legal principles established

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  • Under section 7 of the Land Control Act, money paid under a controlled transaction that becomes void for want of Land Control Board consent is recoverable as a debt, so invalidity of the transaction is no defence to a refund claim
  • A first appellate court must re-evaluate the evidence and draw its own conclusions while making due allowance for the trial court's advantage of seeing and hearing witnesses
  • Once receipt of money is admitted, the evidential burden shifts to the recipient to prove the facts relied on to explain the receipt
  • Forgery must be specifically pleaded and strictly proved to a standard higher than the balance of probabilities

Court orders

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  1. 1.Appeal dismissed in its entirety
  2. 2.Judgment and decree of the Chief Magistrate's Court at Migori delivered on 30th November 2022 in Migori CMC MCELC No. E051 of 2021 upheld
  3. 3.Interest on the Kshs. 120,000/- decreed to run at court rates from the date of filing of the suit until payment in full
  4. 4.Only the 1st Respondent to have the costs of this appeal; no costs order for or against the 2nd Respondent
On appeal from
Chief Magistrate's Court at Migori
Migori CMC MCELC No. E051 of 2021
Jurisdiction invoked
First appeal under section 78 of the Civil Procedure Act (ELC jurisdiction over appeals from subordinate courts in land matters)

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, "Fred Genga Atieno v Nancy Adhiambo Oswera & Owuor Okoth Alex", Case Analysis (2026). ELC Appeal No. E032 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6167/eng@2026-09-29

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