Aswani v Ashioya (Environment and Land Case 15 of 2024) [2026] KEELC 238 (KLR)

for the said transaction at the land’s ofice in the year 2016. That the Defendant transferred to himself the Plaintifi’s land measuring 0.21 Ha that is four (4) plots without the Plaintifi’s consent. He therefore sought for the Court’s intervention. 3. In response to the Plaintifi’s claim, the Defendant filed Defendant’s Defence dated 8th December 2023 which was later amended and replaced with the Defendant’s Defence and Counterclaim dated 11th February 2025 vide which he denied the Plaintifi’s claim and claimed for Kshs. 600,000/- which he claimed to have paid to the Plaintifi as part purchase price and interest thereon at 14% since 2016 to the date of final payment and costs of the Counterclaim. The Evidence 4. The Plaintifi who testified as PW1 adopted the contents of his witness statement dated 30/9/2023 as his evidence in chief. He had stated in the said witness statement that the Defendant and him engaged in a business between the year 2015 for a period of 8 years. That the Defendant had denied him access to his title deed for LR No. Bukhayo /Mundika/12883 which the Defendant acquired fraudulently, that on 13th May 2023, the Defendant wrote to the Plaintifi returning the title deed for No. Bukhayo/Mundika/12883 together with the transfer forms duly signed. That the title deed was in the Defendant’s name despite having paid him all the legal fees to transact the business for him. 5. The Plaintifi also relied on the contents of a further witness statement titled additional Evidence dated 7th November 2024 wherein he stated that the Defendant filed a case against him in the Small Claims Court at Kakamega namely; SCC Comm Case No. E197 of 2023 and another case in the Chief Magistrate’s Court at Busia namely Small Claims Court Case No. E026 of 2023. That the case at Kakamega Small Claims Court was struck out and that case No. E026 of 2023 failed with costs. 6. The Plaintifi produced exhibits as listed in his list of documents dated 30/9/2023 namely; his identity card, payment receipt from Ashioya Oye David & Co. Advocates, letters from Ashioya Oye David Ref. No. OA/GEN/2023 and copy of title deed for Bukhayo/Mundika/12883. 7. On cross examination, the Plaintifi stated that the receipts he produced showed that the payments he had made to Ashioya Advocate were for disbursements that he had never sold his land to the Defendant and he never received any payment from the Defendant. That he did not transfer his land to the Defendant. 8. On behalf of the Defendant, two witnesses testified. DW1 was the Defendant. He stated that he is an advocate of the High Court of Kenya. He adopted the contents of his witness statement dated 18/6/2025 as his evidence in chief. He had stated in the said witness statement that the Plaintifi was one of his clients for whom he handled over 10 files ranging from land matters, claims for money he had lent out and succession cause. That the Plaintifi was not paying fees up front but in instalments hence he ended up having a big bill on legal fees. That he handled for the Plaintifi asuccession cause No. 3 of 2014 where the Plaintifi was claiming for 3 acres of land as a purchaser of LR No. Bukhayo/Mundika/1254 from the estate of Joseck Wafula Mudidwa. That he successfully pursued the matter on behalf of the Plaintifi and handed the Plaintifi title deed for Bukhayo/Mundika/11940 and LR No. Bukhayo / Mundika/11942. That because the Plaintifi was having dificulties in securing the outstanding fees, he approached the Defendant with a proposal that he sells to the Defendant part of the Plaintifi’s land and that they set ofi part of the purchase price from the legal fee outstanding, but in the meantime the Defendant be paying the Plaintifi money as and when the Plaintifi was in need because the land sale price had been agreed at Kshs. 2 million and the Plaintifi owed the Defendant about Kshs. 1 million. That the Defendant commenced payments as agreed wherein he paid to the Plaintifi or the Plaintifi’s agent a total of Kshs. 741,500/-. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/238/eng@2026-01-22 2

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9. That one of the Plaintifi’s sons by the name Serulo wrote to the Defendant a letter complaining about the sale that there was a meeting of the Plaintifi’s family wherein the Plaintifi’s family resolved that they stop any more disposal of the land whereupon the Defendant demanded a refund of Kshs. 600,000/which he had earlier paid to the Plaintifi. That the Defendant filed bills which were taxed at a total of Kshs. 336,275/-. 10. That a subsequent meeting resolved that the defendant transfer the land back to the Plaintifi and the Plaintifi settles the Kshs. 600,000/- 11. That consequently the Defendant transmitted to the Plaintifi transfer documents namely application for transfer, transfer forms, original title deed, the Defendants colored passport size photographs, a copy of his Identity Card and a copy of the Plaintifi’s KRA Pin Certificate. 12. That the allegations of fraud are malicious. That the Plaintifi has not lived up to his undertaking of refunding the money and interest at 14%. The Defendant produced a total of 52 documents as exhibits as listed in his list of documents dated 18/6/2025. 13. On Cross-examination, the Defendant stated that the money he had paid to the Plaintifi was for the purchase of Bukhayo/Mundika/12883. 14. DW2 was one Sebastian Tikolo who adopted his witness statement dated 18/6/2025 as his evidence in chief. 15. On cross-examination, DW2 stated that the Plaintifi sold land to the Defendant but did not complete the transaction. Submissions 16. At the close of the case, parties filed written submissions. The Plaintifi filed written submission dated 1st July 2025. He submitted that the Defendant’s claim of Kshs. 600,00/- had been adjudicated upon and dismissed by Kakamega Small Claims Court and the Busia Small Claims Court and quashed on the basis that there was no proof of payment or valid contract of sale. 17. That the Defendant was paid a total of Kshs. 580,000/- for legal services. That the evidence of DW2 ofiends the Evidence Act particularly section 63 thereof as it contains no admissible or probative content from a competent witness and that the honorable court would disregard the same. 18. That the suit property remains registered in the Defendants name and can be seen from the title deed. 19. On behalf of the Defendant, written submission dated 10th August 2025 were filed by Kagna & Advocates. Issues for Determination 20. As the documents of transfer of the suit land have been executed by the defendant and surrendered to the plaintifi, I find that the only outstanding issues for Determination are; a. Whether or not the Defendant owes the Plaintifi the amount of money stated in the Plaint and interest thereon at 14%. b. Whether or not the Defendant is entitled to recover the sum of Kshs. 600,000/- and 14% interest thereon from the Plaintifi is claimed in the counterclaim. c. Cost of the suit and the counterclaim. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/238/eng@2026-01-22 3

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Analysis and Determination 21. The first issue for determination is whether the Defendant owes the Plaintifi the amount of money claimed in the Plaint and interest thereon at 14%. 22. Under the provisions of Section 107 of the Evidence Act the burden of proof rests with the Plaintifi to prove his claim on a balance of probabilities. 23. The Plaintifi claims for 14% interest on a sum of 4,800,000/- for 8 years. A reading through the Plaint, the evidence and the submission by the Plaintifi discloses no basis for the said claim. It is not clear how the sum of Kshs. 4,800,000/- was arrived at. The Plaintifi also claimed for a sum of Kshs. 580,000/and interest thereon. The Plaintifi admitted in his cross-examination that this amount was paid to the Defendant as his lawyer as disbursements. The fact that the Defendant was the Plaintifi’s Advocates was not denied. 24. I find no evidence that the Defendant owes the Plaintifi the amount claimed in the Plaint or at all. 25. Regarding the suit land parcel, while it is abundantly clear from the documentary evidence produced that indeed the Plaintifi attempted to sell the suit land to the Defendant and consequently the suit land was transferred to the Defendant, there is evidence that the Defendant signed and transmitted to the Plaintifi documents that would to him cause the suit land to be transferred back to himself. 26. The Plaintifi submitted that the suit land is still in the name of the Defendant. My assessment of the evidence placed before Court is that this is so because the Plaintifi who placed a caution on the land has not presented the transfer documents signed by the Defendant to the Lands Ofice for transfer of the land back to him (Plaintifi). 27. In a nutshell, I find that the Plaintifi has not proved his claim on a balance of probabilities as required in civil cases. 28. The second issue is whether or not the Defendant is entitled to Kshs. 600,000/- from the Plaintifi as claimed in the Counterclaim. The documents produced by the Defendant and particularly the correspondence with the Advocates Complaints Commission, the Plaintifi’s declaration accompanying the caution and correspondence with the Plaintifi’s Advocates indicate that indeed the Defendant paid a sum of Kshs. 600,000/- to the Plaintifi for the purchase of the suit land which transaction was not completed. 29. The Defendant has signed transfer documents and transmitted to the Plaintifi all the requisite transfer documents. The Plaintifi ought to refund the purchase price paid to him. 30. It is not denied that the said amount of Kshs. 600,000/- has been the subject of previous litigation and the question which therefore arises is whether the claim is res-judicata. The doctrine of res-judicata is explained in Section 7 of the Civil Procedure Act as follows: “ No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such court.” 31. Copies of the proceedings of the previous (former) suit were availed to the Court by the Plaintifi. The Judgment in respect of Busia Small Claims Court Claim No. E026 of 2023 dated 6th February 2024 shows that the Court simply downed its tools for lack of jurisdiction. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/238/eng@2026-01-22 4

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32. Further the ruling dated 16th June, 2023 in respect of Kakamega Small Claims Court Commercial Claim No. E197 of 2023 show that the Court found that the claim had been filed in a Court devoid of jurisdiction and the claim was subsequently struck out. There is no evidence that the claim was adjudicated upon and a determination of the issue in controversy arrived at. 34. I find that the Defendant is entitled to the said amount of Kshs. 600,000/- from the plaintifi. 35. For the foregoing reasons, the court finds that the plaintifi has failed to prove his claim as contained in the plaint on a balance of probabilities. The suit is dismissed. 36. On the other hand, the counterclaim is proved on a balance of probabilities. Judgement is entered in favour of the Defendant and against the plaintifi on the counterclaim for Kshs 600,000/ and interest thereon at Kshs 14% from the date of filing the suit. 37. Given the relationship of advocate-client that the parties have enjoyed in the past, each party shall bear own costs of the suit and counterclaim. Orders accordingly. JUDGEMENT DATED AND SIGNED AT KISUMU AND DELIVERED VIRTUALLY THIS 22ND DAY OF JANUARY, 2026. E. ASATI JUDGE In the presence of: Court Assistant. Plaintifi present in person. N/A for the Defendant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/238/eng@2026-01-22 5

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