Njoroge v Rukwaro (Environment and Land Appeal E045 of 2022) [2026] KEELC 4242 (KLR)

2. 4. The learned magistrate erred in law and in fact by failing to consider the evidence of the first defendant that the plaintifi sold two motor vehicles on her behalf which fact the plaintifi admitted and paid the money realized to the first defendant’s account. 5. The learned magistrate erred in law and in fact by failing consider the evidence of the first defendant that she paid cash bail for the sister of the plaintifi, the plaintifi admitted that the sister had been charged of a criminal ofiense, and refunded the money by depositing it to the first defendant’s account. 6. The learned magistrate erred in law in failing to appreciate that upon the first defendant giving an explanation on deposits made to her account, the burden of proof, on a balance of probabilities, shifted to the plaintifi. 7. The learned magistrate erred in law and in fact in relying on facts and particulars which were not pleaded in the pleadings. 8. The learned magistrate erred in law and fact in relying on the evidence of the plaintifi whose evidence had no background basis and did not pass the test of proof on a balance of probabilities. 9. The learned magistrate erred in law and in fact in failing to consider and appreciate that the first defendant’s evidence was malicious as it arose from a family disagreement and the plaintifi was therefore ill bent to illegally and unlawfully harass the appellant. 10. The learned magistrate erred in law and in fact by failing to consider that the plaintifi’s statement did not support or mention the plaintifi’s claim in respect of the sum of Kshs.5,050,000/-. 11. The learned magistrate erred in law and in fact by failing from the evidence as a whole that the plaintifi’s claim does pass the restitution test. The appellant prays for the following orders:i. That this honourable court be pleased to vary and set aside the judgment relating to the award of Kshs.5,050,000/- to the plaintifi by honourable D.W Mburu (MR) Senior Principal Magistrate delivered on 6th May, 2022 in Milimani ELC No. E1495 of 2020 and any subsequent consequential orders. ii. That this honourable court make such orders and directions as it deems fit and just towards the disposal of this matter. iii. That the costs of the appeal be borne by the respondent. 3. The grounds of appeal were canvassed through written submissions. The appellant filed written submissions dated 22nd February, 2026. The respondent filed the written submissions dated 16th March, 2026. I have considered the grounds of appeal and the written submissions filed by the parties. The issue for determination is whether the appeal has merit. 4. This is a first appeal and the law is that this court is entitled to revisit the evidence on record, evaluate it and arrive at its own conclusion. Often times, an appellate court will not interfere with the findings of fact by the trial court unless they were based on no evidence at all or were arrived at on a misapprehension of it or the trial court is shown to have acted on wrong principles in arriving at those findings as was held in Mwanasokoni versus Kenya Bus Service Ltd 1982 – 88 I KAR 278. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4242/eng@2026-07-09 2

page 2 of 6

5. The respondent filed a further amended plaint dated 17th November, 2020 seeking judgment against the appellant and two others for:a. A permanent injunction directing the defendants by themselves, their servants, agents and/or representatives from trespassing, interfering, transferring, disposing ofi, alienating in any way changing the ownership of the property better known as Kitchen 20 on LR. No. 209/28648 better known as Nextgen Commercial Center. b. A declaration that the plaintifi is the Bonafide owner of the kitchen 20 on LR no. 209/28648 better known as Nextgen Commercial Centre. c. A refund of Kshs.2,350,000.00 by the 1st defendant. d. In the alternative and without prejudice to the foregoing the plaintifi prays for judgment against the 1st defendant for a refund of Kshs.5,050,000.00 by the defendant. e. Costs of the suit. f. Interest on (c) and d) above. 6. In the plaint, the respondent pleaded that the 2nd defendant (ofice suites developers limited) was constructing premises on behalf of 3rd defendant (nextgen ofice suites limited) along Mombasa road on LR. no. 209/18648. Being interested in the same, the respondent identified kitchen no. 20 and commenced paying the same through the appellant. Further, that he entrusted the appellant to run the business which she did. However, the same was afiected by harsh economic conditions during the Covid-19 pandemic. 7. The respondent pleaded that since the purchase was a condominium, he was waiting for a registered lease in his name, and he later learnt that ofice suites developers limited were in the process of transferring the same to the appellant. The respondent stated that he deposited funds to the appellants account in which she utilized a sum of Kshs.2,700,000/- towards the said purchase leaving a balance of Kshs.2,350,000/-. This excess amount is yet to be refunded after the said purchase. The respondent stated that he would be prejudiced if the transfer is made to the appellant who is not a bona fide proprietor but a trustee. Further, that he doubted whether the appellant would refund the value which has since appreciated noting the heavy investments made thereon. 8. The appellant, together with the 2nd and 3rd defendants filed the amended written statement of defence and counter claim dated 16th December, 2020. In their defence, the appellant denied discussing with the respondent about buying a kitchen through her, making payments to the developer on the respondent’s behalf, ever being a trustee of the respondent, and further, she denied being in possession of the premises at any time or at all. She maintained that the respondent has never purchased the property or shown any intention of purchasing the same whatsoever. Notably, the appellant pleaded that prior to the deterioration of the relationship, the respondent had been assisting her on various transactions on commission basis including the sale of two motor vehicles. 9. The 2nd and 3rd defendants denied being involved in any transaction with the respondent, instead they recognized the agreement with the appellant over kitchen no. 20. The 2nd and 3rd defendants pleaded that after payment of the purchase price, the appellant took possession of the premises, and that they were in the process of preparing the lease in favour of the appellant. 10. In their counter claim, and together with the 2nd and 3rd defendants, the appellant pleaded that she entered into a sale agreement dated 4th July 2016, and upon paying the purchase price, she took possession of Kitchen no. 20. Further, that she is the mother-in-law to the respondent, and that the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4242/eng@2026-07-09 3

page 3 of 6

relationship between them and her daughter has deteriorated to the extent that the respondent vowed to teach her a lesson. The orders sought in the counterclaim were as follows:a. The suit to be dismissed with costs of the suit and counter-claim. b. A permanent injunction restraining the plaintifi by himself and/or through his agents and/or his servants and/or his employees and/or relatives and/or whomsoever from trespassing and/ or entering and/or doing any act and/or interfering in any way whatsoever with the use and quiet enjoyment of the plaintifi’s property premises known as Kitchen no. 20 on LR. No. 209/18648. c. A declaration that the first defendant is a bonafide purchaser and rightful owner of kitchen no. 20 on LR. No. 209/18648. d. Costs of the counterclaim. 11. The respondent filed his reply to amended defence and defence to counter-claim dated 5th January, 2021. The respondent averred that he had withdrawn the suit against the 2nd defendant (ofice suites developers limited). In his defence to the counterclaim, the respondent averred that the appellant was acting on his behalf and that he gave her the authority to lease the kitchen and utilize the rents for future investments. 12. This matter proceeded for hearing on diverse dates before Hon. DW Mburu SPM which later culminated into the impugned judgment that was delivered on 6th May, 2022. The appellant is dissatisfied with the part of the judgment wherein the trial court found that the respondent is entitled to the sum of Kshs.5,050,000/-. In arriving at this conclusion, I find it necessary to reproduce the respective part of the judgment:“ 16. 17. 16. The alternative prayer in the plaint is for a refund of Kshs.5,050,000/- by the 1st defendant. It is the plaintifi’s position that the 1st defendant received the said amounts from the plaintifi from time to time on account of ongoing projects. The plaintifi relies on the case of Chase International Investment Corporation and Another v Laxman Keshra and Others [1978] eKLR 143, at p 154 where the court held that in Kenya a claim may properly be founded for restitution where it be unjust to allow a party to retain the benefits of unjust enrichment. It was further stated in the said case that the basic elements that encompass unjust enrichment were as follows:i. That the defendant has been enriched by the receipt of a benefit. ii. That he has been so enriched at the expense of the plaintifi. iii. That it would be unjust to allow the defendant to retain the benefit in the circumstances of the case. In our case, it is clear that there were frequent financial dealings between the plaintifi and the 1st defendant who is his mother in law. It is also clear that these dealings involved the movement of funds between their respective accounts. This arrangement existed at a time when the plaintifi enjoyed a blissful marriage to DW2, a daughter of the 1st defendant. Unfortunately, the marriage went south and the plaintifi and DW2 parted ways and that is when the cordial business relationship ended. From the evidence on record in the form of bank statement, it is clear that at the time when the cordial relationship https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4242/eng@2026-07-09 4

page 4 of 6

ended, the 1st defendant owed the plaintifi the sum of Kshs.5,050,000/- in respect of previous transactions. Allowing the 1st defendant to retain this amount received on account would result in unjust enrichment at the expense of the plaintifi. The plaintifi has suficiently proved that he is entitled to an order of refund of this amount with interest at court rate from the date of filing of suit until payment in full.” 13. In assessing whether the trial court was in error in determining the above issue, which was prayer (d) of the further amended plaint, two issues arise, namely the jurisdiction of the magistrate court to hear and determine the dispute before it and the burden of proof. 14. With all due respect, the jurisdiction invoked by the court was limited to hearing and determining the claim on ownership of kitchen no. 20 situate on LR. No. 209/18648. In exercising jurisdiction, the trial court needed to be confined to the pleadings, evidence on record and the testimony of the witnesses. To begin with, a claim of unjust enrichment was not pleaded at all in the further amended plaint and in the reply to amended statement of defence and defence to the counterclaim. Neither did it arise during the hearing. Unjust enrichment appears as an issue for determination in the respondent’s written submissions dated 24th March, 2022. In my view, this was a fundamental error because the trial court determined an issue which was not raised in the pleadings and during the hearing, thus ofiending the principles of natural justice. 15. By delving into an issue that was not pleaded, the trial court summarily looked at the alleged bank statement and concluded that all the deposits made by the respondent into the appellant’s account were meant for projects all of which were strictly funded by the respondent himself and the amounts unpaid needed to be refunded as the same amounted to unjust enrichment. It is trite law that he who alleges must prove. 16. Section 107 of the Evidence Act provides as follows:“ (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.” 17. From the evidence tendered, there was no nexus established between the deposits made into the appellant’s account in the year 2014 and late 2015 and the purchase of the kitchen in April, 2016. Secondly, the respondent did not provide at the very least a breakdown of the sum of Kshs.5,050,000/and its link to kitchen no. 20. More importantly, the trial court if at all it was right, it did not consider the fact that the deposits made in the year 2015 were from a joint account in the names of the respondent and his wife. In sum, I find this part of the judgment fundamentally fiawed because, simply providing a bank statement does not automatically lead to the conclusion that monies are held unjustly particularly when it has not been established that these monies are linked to the suit property. 18. As a result of this error, one can clearly see that the court assumed a difierent jurisdiction besides that which it was called to do. In my view, the trial court shifted the burden of proof from the respondent to the appellant resulting in an unfair conclusion. For this reason, I am inclined to disturb this part of the judgment. The respondent did not suficiently and to the required standard justify the claim of Kshs.5,050,000/- and neither was a link established between the same and the purchase of the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4242/eng@2026-07-09 5

page 5 of 6

kitchen. Having evaluated the record of appeal, I find that the respondent was not entitled to the sum of Kshs.5,050,000/19. From the above, I find merit in the memorandum of appeal dated 6th May, 2022 and I grant the following orders:i. The award of Kshs.5,050,000/- being the refund amount with interest at court rate from the date of filing the suit until payment in full by Hon. D.W Mburu (SPM) delivered on 6th May, 2022 in Milimani ELC no. E1495 of 2020 is hereby set aside. ii. For clarity, the respondent is not entitled to the sum of Kshs.5,050,000/-. iii. The appellant is awarded the costs of the appeal. It is so ordered. DATED, SIGNED & DELIVERED VIRTUALLY THIS 9TH DAY OF JULY, 2026. HON. MBOGO C.G. JUDGE 09/07/2026. In the presence of: Ms. Benson Agunga - Court assistant Dr. Kamau Kuria for the 1st Respondent Mr. Gekonge for the Appellant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4242/eng@2026-07-09 6

page 6 of 6