Wanjiru v Kimaiyo & 2 others

c. The Learned Magistrate erred in law and in fact by failure to observe that the 1st and 3rd Respondents did not call any witnesses hence the Appellants evidence remains unchallenged. d. The Learned Magistrate erred in law and in fact by failure to nd and observe that the Appellant had established the threshold for granting of a permanent injunction. e. The Learned Magistrate erred in law and in fact by holding that the 1st and 3rd Respondents’ rights to be heard were violated when it was plain and clear they were given such opportunity but failed to act. f. The Learned Magistrate erred in law and in fact demonstrating lack of competency in addressing land matters hence arriving at an erroneous conclusion. g. The Learned Magistrate erred in law and fact by going outside what the parties had pleaded. 3. The Record of Appeal was served on the 1st, 2nd and 3rd Respondents. 4. The 1st Respondent upon service of the present Appeal did le Notice of Address of Service dated 11.09.2025 and a Response to the Memorandum of Appeal also dated 11.09.2025 whose contents can be summarised as follows:i. The 1st Respondent averred that the present appeal is a sham and only contains mere denials to the judgment delivered by the trial court on 06.06.2023. ii. That the Memorandum of Appeal does not raise any reasonable appealable issues but only expresses dissatisfaction with the judgment of the Lower Court. iii. The Trial Court correctly directed itself by considering the pleadings, evidence adduced and testimonies in delivering the judgment. iv. That the present appeal is an abuse of the court process as it is pegged on baseless grounds and that litigation must come to an end. v. The 1st Respondent thus prayed that the appeal be dismissed with costs. 5. The Court did admit the present Appeal for hearing on the 09.02.2026 and directed that it would be canvassed by way of written submissions. 6. The Appellant in compliance with the above directions did le her submissions dated 18.03.2026, the 1st Respondent le his submissions dated 24.04.2026 while the 2nd Respondents’ submissions were dated 14.04.2026. 7. The Court in its jurisdiction as the rst Appellate Court is guided by the authority of Selle & Another vs Associated Motor Boat Co. Limited & Others (1968) EA 123, where it was state as follows:“ A rst appellate court is mandated to re-evaluate the evidence before the trial court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A rst appellate court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses rst hand.” 8. Based on the above authority, this Court is required to re-evaluate the evidence before the Trial Court, identify the issues for determination, make its own independent conclusions and then consider whether the Trial Court applied the correct law and facts in arriving at its decision. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5425/eng@2026-09-14 2

page 2 of 19

9. To be able to achieve this exercise, the Court will now proceed re-evaluate the pleadings and evidence tabled before the Trial Court and identify the issues for determination. The Pleadings Filed Before the trial Court. 10. 11. The Trial Court proceedings were instituted by the Appellant through a Plaint dated 18.01.2018, which was later amended on 01.10.2018, seeking the following Orders against the 1st, 2nd and 3rd Respondent herein; a. A declaration that the Plainti is the absolute owner of the whole of that parcel of land known as Eldoret Municipality Block 11/1081 and the 1st Defendant actions amounts to an interference with the Plainti’s proprietary interests over the suit land. b. A declaration that the transfer and registration of the 1st Defendant as the owner of land parcel number Eldoret Municipality/Block 11/1081 and all the documents used in eecting such registration are unlawful, illegal, null and void and were procured by fraud and in contravention of the law. c. An order directing the 3rd Defendant to cancel the title deed issued to the 1st Defendant over land parcel number Eldoret Municipality/Block 11/1081 and/or rectify the register of the said parcel of land by cancelling the 1st Defendant’s name as the owner of the parcel of land and substitution therewith the Plainti’s name as the owner thereof. d. An order of Permanent Injunction to permanently restrain the 1st Defendant, whether by himself, his agent/servant and/or employee from trespassing into, wasting, leasing, collecting rent, transferring, subletting, interfering with, destruction of property and/or any other way or manner whatsoever on however dealing with the parcel number Eldoret Municipality/ Block 11/1081. e. An order of Injunction permanently restraining the 1st Defendant from re-entering into, trespassing upon and or otherwise interfering with the Plainti’s parcel number Eldoret Municipality/Block 11/1081. f. A declaration that the Agreement dated 30th June, 2017 stands repudiated and the Defendant cannot claim for any right over the said agreement. g. An order directing the 1st Defendant to collect the initial deposit. h. Costs of this suit. i. Any further relief this Honourable court deems t and just to grant. The facts in support of the Appellant’s prayers before the Trial Court were as follows; i. The Appellant is the lawful owner of the property known as LR.No.Eldoret Municipality Block 11/1081 measuring approximately 0.0134 Hectares (hereinafter referred to as “the suit property”). ii. On or about 30.06.2017, the Appellant did enter into an Agreement For Sale of the suit property with the 1st Respondent for a consideration of Six Million Two Hundred Thousand (KShs.6,200,000/-.) https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5425/eng@2026-09-14 3

page 3 of 19

iii. At the time of execution of the Agreement For Sale dated 30.06.2017, the suit property had been charged to the 2nd Respondent to secure a nancial facility amounting to Kenya Shillings Five Milllion Two Hundred Thousand (KShs.5,200,000/-) by the Appellant. iv. Consequently, it was a term of the Agreement For Sale dated 30.06.2017 that the initial deposit of Kenya Shillings One Million (KShs.1,000,000/-) would be paid directly to her and the balance of Kenya Shillings Five Million Two Hundred Thousand (KShs.5,200,000/-) would be paid to the 2nd Respondent to clear the outstanding nancial facility and procure the ownership documents therein. v. The Appellant however did plead that the 1st Respondent did not pay a sum of Kenya Shillings Four Hundred Thousand (KShs.400,000/-) towards that initial Kenya Shillings One Million (KShs.1,000,000/-) which was to be paid directly to her on or before 15.09.2017, and similarly, the 1st Respondent did not settle the sum of Kenya Shillings Five Million Two Hundred Thousand (KShs.5,200,000/-) which was to be paid directly to the 2nd Respondent. vi. Due to this default on the part of the 1st Respondent, the Appellant did repudiate the Agreement For Sale dated 30.06.2017 on the 18.09.2017. vii. The Appellants pleaded that despite the Agreement For Sale dated 30.06.2017 having been repudiated on the 18.09.2017, the 1st Respondent did proceed to enter the suit property and took over the management of the developments therein without any lawful ownership rights. viii. The Appellant did plead that the registration of the 1st Respondent as the lawful owner of the suit property was unprocedural, unlawful and illegal as she had not executed any documents to facilitate the transfer of the same to the 1st Defendant herein. ix. In the alternative, the 2nd Respondent had not exercised its power of sale under the Charge registered on the suit property to enable the 1st Respondent acquire the same as an innocent purchaser for value. x. In essence, the Appellant did plead that the all the documents issued by the 2nd Respondent which facilitated the transfer of the suit property to the 1st Respondent were done through fraud and collusion hence illegal, unlawful and a nullity. xi. The Appellant’s prayer was that the 3rd Defendant be and is hereby Ordered to cancel, rectify and/or delete the name of the 1st Respondent as the registered owner of the suit property and the same be registered in her name. 12. The Appellant’s suit was duly served on the 1st, 2nd and 3rd Respondents. 13. The 1st Respondent did le a Statement of Defence dated 29.10.2018 in opposition of the same. 14. In the Statement of Defence dated 29.10.2018, the 1st Respondent did plead the following facts in opposition of the Appellant’s case; i. The 1st Respondent did admit that there was an Agreement For Sale dated 30.06.2017 with the Appellant regarding the suit property and the consideration was Kenya Shillings Six Million Two Hundred Thousand (KShs.6,200,000/-). ii. The 1st Respondent did further conrm that the sum of Kenya Shillings One Million (KShs.1,000,000/-) was to be paid to the Appellant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5425/eng@2026-09-14 4

page 4 of 19

iii. In line with this term of the Agreement For Sale dated 30.06.2017, a direct payment of Kenya Shillings Six Hundred Thousand (KShs.600,000/-) was made to the Appellant and the balance of Kenya Shillings Four Hundred Thousand (KShs.400,000/-) was deposited at the Appellant’s Advocate for her collection. iv. Thereafter, the 1st and the 2nd Respondent did enter into a separate loan arrangement wherein the Appellant would be discharged from her nancial facility amounting to Kenya Shillings Five Million Two Hundred Thousand (KShs.5,200,000/-) and the same taken over by the 1st Respondent until payment in full. v. It was therefore the 1st Respondent’s pleading that the 2nd Respondent having fully discharged the Appellant from her nancial obligation amounting to Kenya Shillings Five Million Two Hundred Thousand (KShs.5,200,000/-), she had no proprietary rights over the suit property and/or any interest on who was the registered owner of the same. vi. The 1st Respondent did further plead that the Appellant, after the execution of the Agreement For Sale dated 30.06.2017, has willingly executed all the necessary and relevant completion documents to facilitate the completion of the same and she cannot claim that the same were obtained through fraud and/or collusion. vii. In essence, the 1st Respondent did plead that the full purchase price under the Agreement For Sale dated 30.06.2017 was settled and there is no breach whatsoever of the terms as alleged by the Appellant. viii. The 1st Respondent did state that if the Appellant is yet to collect the sum of Kenya Shillings Four Hundred Thousand (KShs.400,000/-) from her Advocate, then such an omission should not be visited on him as a default of the terms in the Agreement For Sale dated 30.06.2017 by the Appellant. ix. In conclusion, the 1st Respondent did pray that the Appellant’s suit be dismissed with costs thereof. 15. The 2nd Respondent did also oppose the Appellant’s suit before the Trial Court through a Statement of Defence dated 14.11.2018. 16. In the Statement of Defence dated 14.11.2018, the 2nd Respondent did plead the following facts in opposition of the Appellant’s suit; i. The 2nd Respondent did admit that the suit property had been registered in the name of the Appellant until 15.09.2018 when the same was lawfully transferred to the 1st Respondent. ii. The 2nd Respondent did plead that after the execution of the Agreement For Sale dated 30.06.2017, the 1st Respondent did approach the 2nd Respondent with a proposal to be nanced the balance of Kenya shillings Five Million Two Hundred Thousand (KShs.5,200,000/-) which was due from the Appellant herein. iii. The 2nd Respondent did accept this request to renance the balance of Kenya Shillings Five Million Two Hundred Thousand (KShs.5,200,000/-) owing to the Appellant. iv. Consequently thereafter, the 2nd Respondent did accordingly discharge the Appellant from her nancial obligations amounting to Kenya Shillings Five Million Two Hundred Thousand (KShs.5,200,000/-) and the suit property became the collateral of the 1st Respondent. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5425/eng@2026-09-14 5

page 5 of 19

17. v. In essence, the 2nd Respondent did conrm that the Appellant herein was no longer in debt to the 2nd Respondent and the suit property was to be transferred to the 1st Respondent upon clearance of the renanced facility sought by him. vi. As regards the payment of the sum of Kenya Shillings Four Hundred Thousand (KShs.400,000/-), the 2nd Respondent did conrm that the same had been deposited at the 1st Respondent’s Advocates oces for collection by the Appellant but for reason better known to them, the same had never been collected. vii. In totality, the 2nd Respondent did deny the allegation that the 1st Respondent was in breach of any term or condition provided for in the Agreement For Sale dated 30.06.2017 and therefore there is no reason whatsoever for the Appellant to purport to repudiate the Agreement For Sale dated 30.06.2017. viii. The 2nd Respondent further plead that the Appellant had freely and voluntarily signed the transfer documents and applied for consent to transfer the suit land to the 1st Defendant. ix. The 2nd Respondent denied the allegations of fraud, collusion, illegality and unlawfulness and denied that the Appellant was entitled to the reliefs sought in the Plaint. x. The 2nd Respondent did plead that its actions were premised on the Appellant’s representations and conduct to undertake the transactions in question, on which basis it advanced colossal amounts of money to the 1st Respondent, thus the Appellant is estopped from denying the legality of the said transactions. xi. In conclusion therefore, the 2nd Respondent did seek the Trial Court to dismiss the Appellant’s suit with costs. The 2nd Respondent in addition to the above Statement of Defence did le a Counter-Claim dated 14.11.2018 seeking the following Orders against the 3rd Respondent herein; a) 18. An Order do issue that the Plainti’s name, the Charge subsisting immediately prior to the registration of the Discharge of Charge and the impugned transfer in favour of the 2nd Defendant be reinstated at the Plainti’s costs and the 2nd Defendant be awarded costs of the Counter-claim. The facts in support of the 2nd Respondent’s Counter-Claim were as follows;i. The Appellant herein had willingly disposed of the suit property to the 1st Respondent. ii. Thereafter, the 1st Respondent requested the 2nd Respondent to renance the balance outstanding to the Appellant which request was accepted. iii. The Charge between the 1st Respondent and the 2nd Respondent was duly prepared and duly executed with the full knowledge of the Appellant who had in turn executed all the necessary documents to facilitate the transaction. iv. Consequently therefore, the 2nd Respondent did disburse the outstanding loan amount owing to the Appellant into the 1st Respondent’s loan account and thereafter discharged the Appellant from any nancial liability with the 2nd Respondent. v. As such, the suit property herein was transferred from being the collateral of the Appellant to being the collateral of the 1st Respondent in line with the Agreement For Sale dated 30.06.2017. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5425/eng@2026-09-14 6

page 6 of 19

vi. However, in the unlikely event the Court would make a nding that the ownership of the suit property was unlawfully alienated in favour of the 1st Respondent, then the Discharge issued in favour of the 1st Respondent should be cancelled and the Charge registered in the name of the Appellant reinstated. 19. The 3rd Respondent did also oppose the Appellant’s suit before the Trial Court through a Statement of Defence dated 29.07.2024. 20. In the Statement of Defence dated 29.07.2024, the 3rd Respondent did oppose the Appellant’s suit on the following grounds; i. The 3rd Respondent did plead that indeed the suit property herein does exist. ii. According to the 3rd Respondent, the suit property was registered in the name of the Appellant on the 18.12.2006. iii. Thereafter, the Appellant herein did oer the same as a collateral in a Charge dated 26.07.2007 in favour of the 2nd Respondent for a nancial facility of Kenya Shillings One Million Eight Hundred Thousand (KShs.1,800,000/-). iv. According to the 3rd Respondent, a Discharge of Charge in favour of the Appellant was registered on the 10.10.2017 and thereafter the suit property was transferred to the 1st Respondent on the same date. v. The 3rd Respondent therefore did plead that it was not privy and/or aware of the alleged Agreement For Sale dated 30.06.2017 and/or the terms therein. vi. Further to that, the 3rd Respondent did deny any participation in any acts of fraud and/or collusion as alleged by the Appellant. vii. The 3rd Respondent did plead that all the entries in the Register of the suit property were on documents presented for registration and instructions of the parties concerned hence their actions were in good faith. viii. In conclusion, the 3rd Respondent did seek the Trial Court to dismiss the Appellant suit with costs. 21. The 1st, 2nd and 3rd Respondents’ Statements of Defence were duly served on the Appellant who led replies thereto. 22. Upon service of the 1st Respondent’s Statement of Defence dated 29.10.2018, the Appellant did a Reply to the 1st Respondent’s Defence dated 10.12.2018 in which the following facts were pleaded; i. The Appellant herein did dispute the allegation that the 1st Respondent had fully settled the consideration on 15.09.2017 as agreed upon in the Agreement For Sale dated 30.06.2017. ii. The Appellant did plead that the sum of Kenya Shillings Four Hundred Thousand (KShs.400,000/-) was never paid on or before the 15.09.2017. iii. In addition to the above omission, the 1st Respondent did not deposit the balance of Kenya Shillings Five Million Two Hundred Thousand (KShs.5,200,000/-) to the 2nd Respondent as agreed in the Agreement For Sale dated 30.06.2017. iv. In essence, the Appellant herein was well within her rights to repudiate the Agreement for Sale dated 30.06.2017. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5425/eng@2026-09-14 7

page 7 of 19

23. v. The Appellant did plead that after the repudiation of the Agreement For Sale dated 30.06.2017, the suit property did remain as her property and the subsequent documents used by the 2nd Respondent to transfer the same to the 1st Respondents were procured through fraud and collusion and therefore illegal, unlawful, null and void. vi. The Appellant therefore sought the Trial Court to dismiss the 1st Respondent’s Defence and allow the suit with costs in his favour. The Appellant also did le a Reply to the 2nd Respondent’s Defence dated 10.12.2018 in which the following facts were pleaded; i. The Appellant conrmed that she was the registered owner of the suit land but denied the allegation that she had transferred the same to the 1st Respondent. ii. According to the Appellant, if any transfer of the suit property was to take place, then it would have been upon payment of the full purchase price and issuance of a Discharge of Charge in her favour. iii. The Appellant reiterated that the LSK Conditions of Sale only applied as far as they did not contradict the agreement for sale, and that Clause 13 thereof stopped applying after the breach thereof. iv. The Appellant did deny receipt of Kenya Shillings Four Hundred Thousand (KShs.400,000/-) from the 1st Respondent as agreed in the Agreement For Sale dated 30.06.2017. v. As such, the Appellant did reiterate that the 1st Respondent was in breach of the terms and conditions contained in the Agreement For Sale dated 30.06.2017, and therefore any transaction geared towards alienating the same from her were done by way of fraud and collusion hence illegal, unlawful, null and void as provided for in the particulars of the Amended suit. 24. The Appellant did also le a Defence to the Counter-Claim dated 10.12.2018 in opposition to the 2nd Respondent’s Counter -Claim dated 14.11.2018. 25. In the Defence to the Counter-Claim dated 10.12.2018, the Appellant did plead the following facts; - 26. i. The Appellant did admit to have entered into an Agreement For Sale with the 1st Respondent regarding the suit property. ii. However, it was a term and condition of the Agreement For Sale between the Appellant and the 1st Respondent that any breach of the payment therein would result to a repudiation of the entire Agreement For Sale. iii. The Appellant therefore was of the view that the 1st Respondent’s failure to clear the balance of Kenya Shillings Four Hundred Thousand (KShs.400,000/-) and the balance outstanding with the 2nd Respondent constituted a breach of the Agreement For Sale hence the same repudiated. iv. With this position in mind, the Appellant did state that any alleged transfer of the suit property in favour of the 1st Respondent by the 2nd Respondent was illegal, unlawful, without her consent and therefore void. v. The Appellant therefore sought the Trial Court to dismiss the Counter-Claim with costs. The Appellant did also le a Reply to the 3rd Respondent’s Statement of Defence dated 05.08.2019. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5425/eng@2026-09-14 8

page 8 of 19

27. 28. In the Reply to the 3rd Defendant’s Statement of Defence, the Appellant did plead the following facts; i. The Appellant did deny the allegations contained the 3rd Defendant’s Statement of Defence in totality. ii. The Appellant pleaded that the suit before the Trial Court was meritorious and properly before the Court. iii. The Appellant did reiterate that the registration of the 1st Respondent as the lawful owner of the suit property was fraudulent as she never signed any transfer document nor consented to the same. iv. In conclusion, the Appellant did seek the Trial Court to dismiss the 3rd Respondent’s case and allow the suit therein. After the above documents were led, the pleading before the Trial Court were closed and the matter set down for hearing. Appellant’s Testimonies and Documentary Evidence Before the Trial Court. 29. The Appellant herein was the rst witness at the Trial Court and was marked as PW 1. 30. The Appellant did conrm to the Trial Court that she had prepared a witness statement dated 01.10.2018, which she did adopt as her evidence-in-chief. 31. In support of her testimony in chief, the Appellant did produce the following documents; Plainti’s Exhibit 1- A Copy of the Agreement For Sale dated 30.06.2017. Plainti’s Exhibti 2- A Copy of the Letter dated 18.09.2017. Plainti’s Exhibit 3- A Copy of the Bank’s Letter dated 18.09.2017. Plainti’s Exhibit 4- A Copy of the Bank’s Statement. Plainti’s Exhibit 5- A Copy of the Bank’s Letter dated 04.09.2017 Plainti’s Exhibit 6- Copy of the Title Deed Plainti’s Exhibit 7- A Copy of the Certicate of Lease. 32. According to the testimony of the Appellant, she had guaranteed another person’s loan which had been taken from the 2nd Respondent. 33. The Appellant did conrm that the collateral granted to the 2nd Respondent by her as a guarantor was the suit property in issue. 34. Unfortunately, the borrower did not manage to meet the payment obligations and the loan was in arrears. 35. Due to this omission by the Borrower, the 2nd Respondent did contact the Appellant with a view of notifying her of the default on the part of the Borrower and their intention to dispose of the same. 36. The Appellant, in an eort to clear the facility with the 2nd Respondent, did independently seek a purchaser of the suit property to be able to raise the funds outstanding and liquidate the facility. 37. It is on this understanding that the Appellant did enter into an Agreement For Sale dated 30.06.2017 with the 1st Respondent herein.(Plainti’s Exhibit 1) https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5425/eng@2026-09-14 9

page 9 of 19

38. However, the Appellant was of the view that the 1st Respondent did not meet and/or comply with the terms and conditions of payment outlined in the Agreement For Sale as provided. 39. The Appellant did inform the Court that upon an inquiry with the 2nd Respondent whether or not the 1st Respondent had deposited the balance of Kenya Shillings Five Million Two Hundred Thousand (KShs.5,200,000/-) as provided in the Agreement For Sale dated 30.06.2017, she was informed that no payment had been made.(Plainti’s Exhibit 3) 40. It is at this point that she did instruct the advocate to write a letter repudiating the Agreement For Sale dated 30.06.2017 dated 18.09.2017 (Plainti’s Exhibit 2) 41. The Appellant did testify that the 1st Respondent was to deposit the sum of Kenya Shillings Five Million Two Hundred Thousand (KShs.5,200,000/-) to her Account No. 085xxxxxx38 held with the 2nd Respondent. 42. The Appellant did point out to the Trial Court that she had agreed to guarantee an entity known as Keshian Auto Merchants but the Loan was disbursed to another entity known as Prayosha Ventures Limited. 43. Due to this anomaly, the Appellant did write another letter dated 04.09.2017 to the 2nd Respondent to point out the same. (Plainti Exhibit 5). 44. The Appellant did inform the Trial Court that despite this information being relayed to the 2nd Respondent, a Discharge of Charge was prepared and registered on the suit property without her consent and thereafter the suit property was transferred to the 1st Respondent herein on the 10.10.2017 (Plainti Exhibit 7) 45. The Appellant did also produce a Copy of the Certicate of Lease in her name. (Plainti Exhibit 6). 46. The Appellant did dispute any allegation that there had been a meeting with the 1st Respondent and the Land Registrar to discuss the issue of the Discharge of Charge. 47. What the Appellant did inform the Trial Court was that there was a meeting between the 1st Respondent and the 2nd Respondent in which she was asked for her passport photos and these are the ones contained in the Transfer Form. 48. The Appellant on being referred to the Transfer Forms did admit that the signatures appearing therein did look like hers but she had not signed the same. 49. The Appellant was of the position that the Agreement For Sale had already been rescinded and she could not have signed any Transfer Forms thereafter. 50. The Appellant further did deny the allegation that she had appeared before an Advocate known as Khisa Roni & Company, Advocates to execute the Transfer Form. 51. The Appellant did testify that the 2nd Respondent had acted contrary to her instructions by issuing a Transfer in favour of the 1st Respondent without informing her or giving her consent for the suit property to be discharged. 52. In essence, the Appellant did conclude her evidence in chief by requesting the Trial Court to Order the 2nd Respondent to return back her title. 53. On Cross-examination by the 1st Respondent, the Appellant did concede that the 1st Respondent did not force her to sign the Agreement for Sale dated 30.06.2017. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5425/eng@2026-09-14 10

page 10 of 19

54. The Appellant did further admit that the purchase price of Kenya Shillings Six Million Two Hundred Thousand (KShs.6,200,000/-) was to be paid in two portions. 55. The rst portion of Kenya Shillings One Million (KShs.1,000,000/-0 was to be paid directly to the Appellant and the balance of Kenya Shillings Five Million Two Hundred Thousand (KShs.5,200,000/-) was to be paid to the 2nd Respondent in settlement of the outstanding loan. 56. The Appellant did inform the Trial Court that the full sum of Kenya Shillings One Million (KShs.1,000,000/-) was made on or before the 15.09.2017. 57. The Appellant did aver that under Paragraph 13 of the Agreement For Sale dated 30.06.2017, the LSK Conditions were to be eected, but the agreement does not indicate that the mode of payment was to her Family Bank Account. 58. On being referred to Plainti Exhibit 3, the Appellant did not have any proof that the letter dated 18.09.2017 had been received by the 2nd Respondent. 59. On being referred to Plainti Exhibit 2, the Appellant similarly did not have any proof that the same had been received by the 1st Respondent. 60. Nevertheless, the Appellant did insist that the 1st Respondent had breached the terms and conditions appertaining to the payment of the purchase price. 61. On further cross-examination by the 2nd Respondent, the Appellant did inform the Trial Court that she had personally delivered the letter dated 18.09.2017 to the 1st Respondent and left it at his oce. 62. On being referred to a Letter dated 28.06.2017, the Appellant did admit visiting the oces of the 2nd Respondent and signing the documents therein. 63. However, the Appellant did state that on that day she was disoriented and ready for anything, and being so desperate, she signed it, and she further agreed with the contents of the said letter. 64. The Appellant did further concede that there was a default by the people she had guaranteed, thus she identied a buyer and asked the bank to advance funds to the 1st Respondent to purchase the property. 65. The Appellant did reiterate that she did not know an advocate called Khisia and explained that although the signature looks like hers, she was told to sign the documents at the bank not at the advocate’s oce. 66. The Appellant did conrm signing many documents but could not remember what the documents she had signed before the 2nd Respondents were as she did not look at the titles and/or headings thereon. 67. The Appellant however did admit that she was aware that if the loan was not repaid, the 2nd Respondent would sell the suit property and it is on this understanding that she agreed to the sell the same to the 1st Respondent and the proceeds to clear the loan. 68. The Appellant also conceded that she relinquished her right to the suit property when she told the 2nd Respondent that she was selling the suit property to the 1st Respondent. 69. The Appellant did request the Trial Court to Order that the 2nd Respondent refunds all monies paid by the 1st Respondent and the suit property be reverted back to her. 70. The Appellant did go further and state that she was willing and ready to continue servicing the loan advanced to the people she had guaranteed if they were not paying. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5425/eng@2026-09-14 11

page 11 of 19

71. Lastly, the Appellant was cross-examined by the 3rd Respondent. 72. The Appellant on being referred to the Transfer of Lease Form, the National Identication Card therein and the KRA Pin Number did conrm that the Kenyan Identication Card was hers although the Number of the KRA Pin Number is what she could not conrm. 73. The Appellant did admit that the ownership documents of the suit property had been surrendered to the 2nd Respondent and no caution had been registered on the same by her. 74. On re-examination, the Appellant did have a recollection of signing documents in the oces of the 2nd Respondent but the advocate witnessing the same appears to be in Kitale, which oce she never visited. 75. The Appellant further did reiterate that the 1st Respondent had failed to comply with the terms and conditions relating to the consideration in line with the timelines provided in the Agreement for Sale dated 30.06.2017. 76. At the end of this re-examination, the Appellant was discharged from the witness box and the Appellant’s case was closed thereafter. The 1st Respondent’s Testimonies and Documentary Evidence Produced Before the Trial Court. 77. According to the proceedings in the Record of Appeal and the Trial Court File, the 1st Respondent did not attend the hearing before the Trial Court on the date xed for hearing despite proper service and his closed was consequently closed. The 2nd Respondent’s Testomies and Documentary Evidence Produced Before the Trial Court. 78. The 2nd Respondent did call one George Karanja Kimani as its rst witness who was marked as DW 1. 79. DW 1 did introduce himself as the Branch Manager of the 2nd Respondent based in Eldoret. 80. DW1 did inform the Court that he had prepared, signed and led a Witness Statement dated 14.11.2018, which he duly did adopt as his evidence in chief. 81. In support of his testimony in chief, DW 1 did produce all the documents in his List of Documents which were marked as Defence Exhibit 1- 22. 82. DW1 urged that should the Appellant’s case succeed, then the le should revert back to the position before the transaction. 83. On cross-examination by the Appellant’s Advocate, DW1 testied that the Appellant wrote stating that she had found a buyer and that they have a charge between the 1st Respondent who was the buyer and the 2nd Respondent registered on 10.10.2017 as provided in Defence Exhibit 19. 84. On being referred to Defence Exhibit 15 and 16, DW 1 did inform the Court that by the time the Appellant was delivering the letter of protest, the Consent to Transfer had already been issued by the Appellant in August 2017. 85. DW 1 however admitted that one gets the consent then registers the charge, and on being referred to DW1 Exhibit 4, he testied that the transfer was registered on 10.10.2017. 86. On being referred to Defence Exhibit 17, DW1 did testify that the Appellant had actually written a Letter requesting that the loan be disbursed to Prayosha instead of Kishan. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5425/eng@2026-09-14 12

page 12 of 19

87. DW 1 was of the view that the Appellant’s letter seeking to cancel the transaction was written in bad faith as she had already executed all the relevant documents to perfect the transaction. 88. On being re-examined, DW1 did clarify that the Advocate witnessing the Discharge of Charge was not witnessing the Appellant’s signature but the 2nd Respondent’s signatures and therefore the Appellant was not required to attend his oce. 89. At the end of this re-examination, DW 1 was discharged from the witness box and the 2nd Respondent did close their case thereafter. The 3rd Respondent’s Testimonies and Documentary Evidence Produced before the Trial Court. 90. Once again, based on the proceedings in the Record of Appeal and the Trial Court le, the 3rd Respondents were not present at the hearing of the matter despite being aware of the hearing date and therefore the Court did proceed to close their case. 91. At the end of the hearing before the Trial Court, parties were granted leave to prepare, le and serve their nal submissions. 92. The Appellant then did le her submissions dated 21.03.2022 while the 2nd Respondent did le her submissions dated 01.09.2022. 93. Once again, the 1st Respondent and the 3rd Respondent did not le any nal submissions. 94. The Court has carefully gone through the pleadings before the Trial Court, the testimonies of the witnesses therein, the documentary evidence adduced and the submissions led and identies the following issues for determination; Issue No.1- Was There a Valid Agreement for Sale Executed Between the Appellant & the 1st Respondent Herein? Issue No.2- Was their any Breach of the Terms and Conditions Provided In The Agreement For Sale by the 1st Respondent? Issue No.3- What Was the Recourse Provided for in the Agreement for Sale in the Event of a Breach by the 1st Respondent? Issue No.4- Was There any Acts of Fraud and/or Collusions Perpertuated By the 1st, 2nd & 3rd Respondents In The Discharge and Transfer of the Suit Property? Issue No.5- Was the Registration of the 1St Respondent As The Lawful Owner of the Suit Property Lawful or not? Issue no.6- Was the Appellant’s Amended Plaint Merited or Not? Issue No.7- Is the Present Appeal Merited or Not? Issue No.8- Who Bears the Costs of the Present Appeal? 95. The Court having duly identied the above-mentioned issues for determination, the same will now be discussed and determined as provided below. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5425/eng@2026-09-14 13

page 13 of 19

Issue No.1- Was there a Valid Agreement for Sale Executed Between the Appellant & the 1st Respondent Herein? 96. the rst issue for determination is whether or not there existed a binding and lawful Agreement For Sale between the Appellant and the 1st Respondent. 97. According to the pleadings and testimony of the Appellant, there was no denial that the Agreement For Sale dated 30.06.2017 was properly and legally executed between the Appellant and the 1st Respondent. 98. It is also not disputed by the Appellant that the subject matter of the Agreement For Sale dated 30.06.2017 was the suit property herein. 99. Consequently, this Court hereby makes a nding that indeed the Agreement For Sale dated 30.06.2017 between the Appellant and the 1st Respondent was legal, lawful and binding between the parties therein. Issue No.2- Was their any Breach of the Terms and Conditions Provided in the Agreement for Sale by the 1st Respondent? 100. The second issue is whether or not there was a breach of the terms and conditions provided for in the Agreement For Sale dated 30.06.2017 by the 1st Respondent. 101. According to the testimony of the Appellant, the consideration of the suit property provided for in the Agreement For Sale dated 30.06.2017 was a sum of Kenya Shillings Six Million Two Hundred Thousand (KShs.6,200,000/-) 102. The payment plan was that a sum of Kenya Shillings One Million (KShs.1,000,000/-) would be paid directly to the Appellant on or before the 15.09.2017. 103. The other amount of Kenya Shillings Five Million Two Hundred Thousand (KShs.5,200,000/-) would be remitted to the 2nd Respondent in full settlement of the nancial facility that was owing to them. 104. The Appellant did plead and testify that the Appellant herein after execution of the Agreement For Sale dated 30.06.2017 did only make a payment of Kenya Shillings Six Hundred Thousand (KShs.600,000/-) on execution but failed to settle the balance of Kenya shillings Four Hundred Thousand (KShs.400,000/-) on or before the 15.09.2017. 105. In addition to the above, the 1st Respondent did further fail to deposit with the 2nd Respondent the sum of Kenya Shillings Five Million Two Hundred Thousand (KShs.5,200,000/-) as demonstrated in the Bank Statement produced as Plainti’s Exhibit 4. 106. In essence, the Appellant did plead and submit that the 1st Respondent did breach the terms and conditions of the Agreement For Sale dated 30.06.2017. 107. As earlier stated, the 1st Respondent did not tender any evidence of documents before the Trial Court. 108. However, the 2nd Respondent’s List of Documents which were marked as Defence Exhibit 1-22 gives a clear guidance of the issue of how the purchase price was made. 109. In an eort to answer this issue, the Court will begin with the portion Kenya Shillings One Million (KShs.1,000,000/-) payable to the Appellant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5425/eng@2026-09-14 14

page 14 of 19

110. According to Clause 6 of the Agreement For Sale dated 30.06.2017, the Appellant did acknowledge the payment and receipt of Kenya Shillings Six Hundred Thousand (KShs.600, 000/-) from the 1st Respondent on the 30.06.2017 which was the date of execution of the Agreement. 111. The balance of Kenya Shillings Four Hundred Thousand (KShs.400,000/-) was then to be settled on or before the 15.09.2017. 112. According to the Replying Adavit sworn by the 1st Respondent on the 24.01.2018 in response to the Appellant’s Notice of Motion Application dated 18.01.2017, there was a letter dated 14.09.2017 sent by way of Registered Post to the Appellant informing her that the balance of Kenya Shillings Four Hundred Thousand (KShs.400,000/-) had been deposited with the Mutual Advocate who had prepared the Agreement For Sale dated 30.04.2017 due to her unavailability. 113. The 1st Respondent in fact did attach the Certicate of Posting and the Ocial Receipt by the rm of Seneti & Oburu Co.advocates dated 14.09.2017 conrming the payment of the balance of Kenya Shillings Four Hundred Thousand (KShs.400,000/-). 114. The 1st Respondent having duly disclosed the fact that the sum of Kenya Shillings Four Hundred Thousand (KShs.400,000/-) pending from the Agreement For Sale dated 30.06.2017 was with the mutual advocate who prepared the same, it was only fair and reasonable that the Appellant would have visited the said Advocates oce collect the same or get the conrmation that it had not been paid as alleged in the Letter dated 14.09.2017. 115. Unfortunately, the Appellant having failed to do what is fair and reasonable, this Court is of the considered view that the 1st Respondent in fact did deposit the sum of Kenyan Shillings Four Hundred Thousand (KShs.400,000/-) with the mutual advocate who had prepared the Agreement For Sale dated 30.06.2017 after being unable to reach the Appellant. 116. Based on this view, this Court hereby makes a nding that the sum of Kenya Shillings One Million (KShs.1,000,000/-) payable to the Appellant by the 1st Respondent was in fact paid on or before the 15.09.2017. 117. As regards the second portion of Kenya Shillings Five Million Two Hundred Thousand (KShs.5,200,000/-) payable to the 2nd Respondent, the Appellant did plead and submit that the 1st Respondent also failed to deposit the same in her account and therefore the same remained outstanding after the 15.09.2017. 118. The 2nd Respondent through DW 1 on the other hand did dispute this allegation. 119. The 2nd Respondents did produce a bundle of documents marked as Defence Exhibit 1 to 22 to demonstrate that the 1st Respondent in fact did clear all outstanding loans before the Discharge of Charge was issued. 120. To answer this question, the Court is drawn to Clause 3 of the Agreement For Sale dated 30.06.2017 which states as follows; “ …The Purchaser acknowledges that the above mentioned parcel of land has an encumbrance against it as it secures and/or stands as security at M-Oriental Bank-eldoret Branch against a Loan facility of KShs.5,200,000/- which the purchaser undertakes to settle upon agreeing terms with the said bank.. . https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5425/eng@2026-09-14 15

page 15 of 19

The parties herein agree that the Purchaser shall pay and/or settle the sum of KShs.5,200,000/- (Five Million Two Hundred Thousand only) to M-Oriental Bank. 121. Based on this condition in the Agreement for Sale dated 30.06.2017, the 1st Respondent did procure the Letter of Oer dated 24.07.2017 from the 2nd Respondent accepting to nance him sum of Kenya Shillings Five Million Two Hundred Thousand (KShs.5,200,000/-) against the suit property which was the security in line with Clause 3 of the Agreement For Sale dated 30.06.2017. 122. What is crucial in the Letter of oer dated 24.07.2017 made to the 1st Respondent by the 2nd Respondent is the page titled Schedule. 123. In this page titled schedule, the approved loan to the 1st Respondent was Kenya Shillings Five Million Three Hundred Thousand (KShs.5,300,000/-) of which Kenya Shillings Five Million Two Hundred and Eighty Thousand Seven Hundred and Seventy-Two (KShs.5,280,772.57/-) was utilised to clear all liabilities of the entity known as Kishan Auto Merchants which the Appellant had guaranteed. 124. In other words, the 1st Respondent did fully settle and clear the liabilities of both the Appellant and Kishan Auto Merchants on the 24.07.2017. 125. In conclusion therefore, this Court is satised and makes a nding that the sum of Kenya Shillings Five Million Two Hundred Thousand (KShs.5,200,000/-) provided for under Clause 3 of the Agreement of Sale dated 30.06.2017 was fully paid on the 24.07.2017. 126. In a nutshell, this Court further makes a nding that there was no breach occasioned by the 1st Respondent in terms of payment of the full purchase price of Kenya Shillings Six Million Two Hundred Thousand (KShs.6,200,000/-) as alleged by the Appellant herein based on the Agreement For Sale dated 30.06.2017. Issue No.3- What was the Recourse Provided for in the Agreement for Sale in the Event of a Breach by the 1St Respondent? 127. The Court having made a nding that there was no breach of the Agreement For Sale dated 30.06.2017 by the 1st Respondent in terms of payment of the consideration thereof, then this issue becomes a nonissue for discussion. Issue No.4- Was there any Acts of Fraud and/or Collusions Perpertuated by the 1st, 2nd & 3rd Respondents in the Discharge and Transfer of the Suit Property? 128. The fourth issue is whether the Discharge of Charge issued by the 2nd Respondent, the Consent to Transfer and Transfer Form issued by the Appellant were procured through fraud and/or collusion. 129. The Appellant in Paragraph 11 of the Amended Plaint dated 01.10.2018 did outline a number of Particulars regarding the fraud and collusion that was perpetuated by the 1st, 2nd and 3rd Respondents. 130. The main particulars of fraud and collusion pleaded by the Appellants was that the 1st, 2nd and 3rd Respondents had created Transfer Forms and the Land Control Board Application Forms with the Appellant’s signatures yet she had not signed and/or consented to sign the same in favour of the 1st Respondent. 131. Thereafter, the 1st, 2nd and 3rd Respondents did proceed to procure a Consent to Transfer from the Land Control Board without the participation of the Appellant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5425/eng@2026-09-14 16

page 16 of 19

132. Lastly, the Appellant did plead that the 1st, 2nd and 3rd Respondents unlawfully and fraudulently did transfer the suit property to the 1st Respondent without her consent and/or authorisation. 133. On cross-examination by both the 1st and 2nd Respondents’ Counsel, the Appellant did admit attending the 2nd Respondent’s oces and executing so many documents which she did not even read. 134. The Appellant did admit allege that she was disoriented and under pressure to sign any document to settle the issue of the outstanding facility which she had guaranteed. 135. The Appellant did admit that it is possible that some of the documents she executed before the 2nd Respondent in the presence of the 1st Respondent could have been the Application for Consent to Transfer and the actual Transfer Form of the suit property to the 1st Respondent. 136. DW 1 who was a witness of the 2nd Respondent did testify that indeed the Appellant had attended their oces and in the presence of the 1st Respondent executed all the completion documents to perfect the Transfer of the suit property to the 1st Respondent. 137. Based on the Appellant’s own admission that she did execute so many documents which would have included the Application For consent to transfer and the Transfer Forms themselves, this Court is persuaded that indeed the Appellant did sign the Application Forms For Consent and the Transfer Forms in favour of the 1st Respondent. 138. The allegation that at the time of signing the name documents, the Appellant was not in the right state of mind is not persuasive for the reason that she was not forced to sign by any party herein. 139. If she was disorientated as she alleges, the appropriate thing to have done would be to schedule another date for signing the same so that she is able to appreciate the contents of the documents she was executing. 140. In essence, this Court therefore makes a nding that the Application for Consent to transfer and the Transfer Forms in favour of the 1st Respondent were duly executed by the Appellant on her own accord and were not in any way obtained through fraud and/or collusion of the 1st, 2nd and 3rd Respondents herein. Issue No.5- Was the Registration of the 1st Respondent as the Lawful Owner of the Suit Property Lawful or Not? 141. The fth issue is whether the 1st Respondent’s registration as the owner of the suit property was lawful or not. 142. The Appellant further did plead and submit that based on the Letter dated 18.09.2017, the Agreement For Sale dated 30.06.2017 was repudiated in its entirety. 143. The reason outlined in the Letter dated 18.09.2017 was that payment of the purchase price had not been fullled. 144. However, in Issue No.2 hereinabove, this Court did make a nding that actually, the full purchase price of the suit property herein as provided in the Agreement For Sale dated 30.06.2017 was settled on or before the 15.09.2017. 145. As such, the Letter dated 18.09.2017 by the Appellant’s Advocate to the 1st and 2nd Respondent was a misdirection of facts and the legal position existing at that time. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5425/eng@2026-09-14 17

page 17 of 19

146. It is important to point out that the right to repudiate is only available to a party who anticipates a breach of contract which might make it impossible to perform its obligations and therefore a possible rescission might arrive. 147. In the case of Heyman-Versus- Darwins Limited (1942) AC 356, the Court did describe repudiation as follows;“ But perhaps the common-sense application of the word repudiation is to what is called anticipatory breach of contract where the party by words or conduct evinces an intention no longer to be bound, and the other party accepts the repudiation and rescinds the contract.” 148. In other words, the right to repudiate a contract is only available to a party that is yet to perform and/ or complete its part of the contract. 149. Fortunately, at the time the Appellant wrote the letter dated 18.09.2017 to the 1st and 2nd Respondents, the 1st Respondent had fully settled the purchase price in the Agreement For Sale dated 30.06.2017 and the Appellant had executed all the relevant documents for the perfection of the Transfer in favour of the 1st Respondent as provided for under Clause 10 of the Agreement For Sale dated 30.06.2017. 150. In essence, this Court is of the considered view and nding that the letter dated 18.09.2017 purporting to repudiate the Agreement For Sale Dated 30.06.2017 was irregular, misdirected and of no legal eect on the transaction between the Appellant and the 1st Respondent. 151. The Court having come to this nding hereby further makes a nding that the registration of the suit property in the name of the 1st Respondent in line with the Agreement For Sale dated 30.06.2017 is lawful, legal and legitimate. Issue No.6- Was the Appellant’s Amended Plaint Merited or Not? 152. The sixth issue is whether or not the Appellant’s Amended Plaint before the Trial Court was merited or not. 153. Based on the ndings of this Court in Issues No. 2, 3, 4 and 5 hereinabove, this Court is of the nding that the Amended Plaint led by the Appellant before the Trial Court was not merited and should be dismissed with costs. Issue No.7- Is the Present Appeal Merited or Not? 154. The seventh issue is whether the present Appeal is merited or not. 155. The Court has indeed duly and carefully gone through the Judgement delivered on the 06.06.2023 in terms of the issues discussed and the determinations therein. 156. Nevertheless, this Court is satised that the Trial Court did appreciate the correct facts and issues before it and thereafter did apply the right law thereby arriving at the correct outcome. 157. As such, the present Appeal is not merited and should be dismissed. Issue No.8- Who Bears the Costs of the Present Appeal? 158. On the issue of costs, it follows the event. 159. In the present Appeal, the Appellant has not been successful and therefore will be condemned to pay costs. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5425/eng@2026-09-14 18

page 18 of 19

Conclusion 160. In conclusion, this Court hereby makes the following Orders in determination of the present Appeal; a. The memorandum of appeal dated 06.07.2023 be and is hereby dismissed forthwith. b. The judgement and decree pronounced on the 06.06.2023 by Hon. P.N. Areri in the proceedings known as eldoret chief magistrates court environment & land court case no. 204 of 2018 be and is hereby upheld. c. The appellant is condemned to pay the costs of this appeal to the 1st and 2nd respondents herein only. DATED, SIGNED AND DELIVERED AT ELDORET THIS ON THIS 14TH DAY OF SEPTEMBER, 2026. EMMANUEL.M. WASHE JUDGE In the presence of: Court Assistant: Brian Advocate for Appellant: Mr. Maathai Advocate for 1st Respondent: Ms. Nafula Advocate for 2nd Respondent: Mr. Konosi Advocate for 3rd Respondent: Mr. Kwame holding brief for Ms. Odeyo https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5425/eng@2026-09-14 19

page 19 of 19