Choge & another v Kamar

price plus the penalty. The Plaintis aver that they are entitled to transfer and possession of the suit property. 3. In response, the Defendant led an Amended Statement of Defence and Counterclaim dated 8th April, 2019 denying the Plaintis’ allegations. The Defendant averred that the Plaint disclosed no cause of action against her. She claimed that the purported agreement for sale was actually a form of security for repayment of funds advanced by the Plaintis to her daughter Sotimarie Jepkemboi, and her nephew Dennis Kipkorir Tum, to whom she had acted as guarantor. She averred that the suit land is worth KShs. 160,000,000/- and it is unconscionable that she would sell it at KShs. 19,500,000/-, or that she would deposit the title with the Purchasers. The Defendant claims that the mock sale was executed based on material misrepresentation of facts and undue inuence by the Plaintis and one Silas Yator, a Manager at I&M Bank Eldoret Branch. 4. The Defendant further claims that between 02.02.2017 and 03.02.2017, her daughter and nephew only received KShs. 14, 800,000/- from the Plaintis. As to the penalty, the Defendant averred that the agreement unconscionably provided a one-o penalty of 30% of KShs. 15,000,000/-. The Defendant claims that she has so far paid the Plaintis a total of KShs. 24,000,000/-, and has thus fully repaid the loan amount over what was owed to the Plaintis. The Defendant thus asked for the immediate release of her original Title Deed and the executed LCB Application and Transfer Forms. The Defendant averred that the sale agreement deprives her of her legitimate title to the suit property through material misrepresentation of facts, undue inuence, an unconscionable agreement and greed by self-proclaimed shylocks. The Defendant concluded that the prayers sought by the Plaintis are untenable and incapable of being awarded, since the suit was inter alia fatally defective and an abuse of the court process. 5. In the counterclaim, the Defendant averred that her daughter and nephew needed KShs. 15,000,000/as starting capital for Information Technology business. The Defendant claims that she advised them to obtain the said amount from a nancial institution. That through their cousin Jacquelline Jebet Kipkemboi, the two were introduced to Silas Yator, the Branch Manager, I&M Bank, Eldoret. It is alleged that the said Silas Yator informed them that processing a loan of that amount would take a minimum of two weeks, but he referred them to the 1st Plainti, who had enough money in her xed deposit account. In the meantime, Silas Yator was to process the loan to be used to repay the 1st Plainti’s money when it fell due to prevent them from defaulting. 6. The Defendant avers that her nephew, Dennis Kiptum met with the 1st Plainti, who agreed to lend them the said money on condition that she would be given a form of physical security through which she could recover the money in the event of default. Further, that the Defendant would personally acknowledge the debt on behalf of her said daughter and nephew, and the title to the suit land was to be used as the security for the loan. Finally, that Silas Yator would secure the loan from I&M Bank to repay the 1st Plainti as and when the loan fell due. The Defendant averred that when Dennis Tum again met the 1st Plainti on 24.01.2017, she came with the 2nd Plainti, whom she introduced as her partner. That aside, the Defendant claims that her daughter and Jacquelline Jebet met Silas Yator at Laico Regencey Hotel on 27.01.2017 and advised them to open accounts at I&M Bank to facilitate the transfer of funds from the 1st Plainti to Sotimarie and Dennis, which they did on 28.01.2017. 7. The Defendant alleges that she met the 1st Plainti and Silas Yator on 26.01.2017 alongside Dennis Kiptum. That they reiterated the above terms and further asked her to sign a debt acknowledgment dated 26.02.2017 for the amount of KShs. 19,500,000/-; being the principal amount of KShs. 15,000,000/- plus 30% thereof. She avers that the Plaintis and Silas Yator materially misrepresented facts to her that as a pre-requisite for her to sign a mock sale agreement over the suit property and https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5463/eng@2026-09-17 2

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avail all necessary documentation to facilitate a transfer of the huge amounts from the bank. The Defendant asserts that she had no intention whatsoever to sell the suit land, which is valued at KShs. 160,000,000/-, and that it is unconscionable that she would sell it at KShs. 19,500,000/-. 8. According to the Defendant, between 02.02.2017 and 03.02.2017, the 1st and 2nd Plaintis gave Dennis Tum a total of KShs. 14,800,000/- in cash, which was deposited in the account opened by Sotimarie at I&M Bank, and they claimed that KShs. 200,000/- was legal fees. The Plainti claims that Silas Yator did not process the loan at I&M Bank by 27.02.2017 as agreed, and the Defendant was unable to repay it on time as she was out of the country on ocial business. That when she returned and wanted to repay the loan, the Defendant was unable to do so as the Plaintis disappeared and could not be traced. The Defendant alleged that the Plaintis emerged after various visits to Silas Yator at I&M Bank, issuing threats against her and demanding amounts outside their agreement. 9. The Defendant reiterates that under the agreement, she was to only pay a one o 30% penalty payment and nothing more. She avers however, that Sotimarie made two withdrawals on 07.04.2017 and 08.04.2018 of KShs. 4,500,000/- each from her Transnational Bank Account. That on the said dates, and at their insistence, she paid in cash KShs. 3,000,000/- to the 1st Plainti, and KShs. 1,500,000/to the 2nd Plainti. Further, that on 10.04.2017, Sotimarie transferred KShs. 15,000,000/- from her Transnational Bank Account to her I&M Bank Account. It is claimed that thereafter, she transferred KShs. 10,000,000/- from her said I&M Bank Account to the 1st Plainti’s account at I&M Bank. That the remaining KShs. 5,000,000/- was transferred from her said I&M Bank Account to the 2nd Plainti’s Co-operative Bank Account. 10. The Defendant avers that cumulatively, as at 12.04.2017, the Plaintis have been paid KShs. 24,000,000/-; meaning that they had been paid KShs. 9,000,000/- over the loan amount. The Defendant now claims that the 1st Plainti has refused to surrender her title despite being paid and request for the same being made, yet she is still threatening her and her daughter. Due to the threats, the Defendant claims that she reported the matter to the police, and that it is on learning of the police report that the Plaintis led this suit in bad faith, with intent to extend the illegal, unfair, unjust and immoral holding of her title. The Defendant avers that the sale agreement was executed on the basis of mistake, fraud, undue inuence, misrepresentation and is unconscionable, and she set out the particulars thereof. 11. The Defendant accused the Plaintis’ of ill motives and seeking to unjustly enrich themselves fraudulently in contravention of her proprietary rights over the suit property. She prayed that the Plainti’s suit be dismissed with costs, and asked for judgment against the Plaintis in terms of following reliefs:a. A declaration that the mock sale agreement dated 26th January, 2017 is void ab initio. b. An order directing the Plaintis to immediately surrender to the Defendant the original Title Deed for all that parcel known as L.R. No. KIPLOMBE/ KIPLOMBE BLOCK 10 (GROWEL) 835, all transfer instruments, application to the Land Control Board and all documents delivered to the Plaintis on the strength of the sale agreement dated 26th January 2017. c. Refund of KShs. 4,500,000/- coercively and unduly paid as the last instalment to facilitate release of the Original Title Deed. d. Costs of this suit plus interest thereon. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5463/eng@2026-09-17 3

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e. Any such further and/or other reliefs as this Honourable Court deems t to grant. 12. The Plaintis led a Reply to the Amended Defence and Defence to the Amended Counterclaim reiterating the contents of their Plaint and denying the allegations set forth by the Defendant. The Plaintis denied inter alia that the agreement was intended as security for repayment of funds advanced to the Defendant’s children. The Plaintis also denied the allegation of the agreement to advance money between them and the Defendant for KShs. 15,000,000/- and a 30% penalty thereof. The Plaintis expressly denied the alleged payment of KShs. 24,000,000/- or that they had any intentions to deprive the Defendant of her interest in suit property through material misrepresentation of facts, undue inuence, unconscionable agreement and/or greed. 13. The Plaintis averred that the parties herein knew the nature of the transactions and the documents they were executing, thus none of them was misled as to their nature. The Plaintis assert that they advanced KShs. 19,500,000/- to the Defendant personally and she admitted her indebtedness by executing a personal acknowledgement thereto. The Plaintis insist that the Defendant sold the suit land to them and duly executed an agreement. The Plaintis averred that the Defendant received both a loan and purchase price for the land from them, and claimed that the two transactions were separate and independent from each other. The Plaintis thus claim that the loan is a dierent amount which was advanced to third party adults and has no connection to the present suit. The Plaintis claim that the loan is yet to be repaid, however, the Defendant’s deceased husband had endorsed the sale herein. 14. In response to the counterclaim, the Plaintis denied all the averments contained therein, except the allegation that Sotiemarie and Dennis Kipkorir Tum obtained KShs. 14,800,000 from them. The Plaintis denied the averments that the loan was secured by the suit property herein, or that the said land is valued at KShs. 160,000,000/- or even that the said value was an issue herein. The Plaintis reiterated the claim that they voluntarily and knowingly entered into two separate transactions and executed two separate documents with the Defendant. The Plaintis further claim that the Defendant received KShs. 39,000,000/-. The Plaintis denied using any fraud, undue inuence, coercion or misrepresentation to enter the sale, and averred that the Defendant was not entitled to the refund sought or the suit land. The Plaintis claimed that the Defendant is estopped from rescinding from the agreement she voluntarily executed, and that the Plaintis are entitled to seek enforcement thereof. 15. The Plaintis claim that the Defendant has tried to blackmail and intimidate them, but if she wanted to retain the land, she should refund the KShs. 24,000,000/- to them. The Plaintis state that they were not privy to the alleged meetings between third parties and the said Silas Yator, who they assert is not party to their dealings with the Defendant. They denied asking the Defendant for anything outside the sale agreement or the acknowledgment of indebtedness, being KShs. 19,500,000/- and 30% penalty, making a total of KShs. 25,350,000/-. They denied receiving KShs. 24,000,000/- from Sotimarie Jepkemboi or KShs. 9,000,000/- in excess of the required amount. They denied any illegality or bad faith in the suit, and further denied the particulars thereof set out in the Plaint. The Plaintis termed the amended defence and counterclaim untenable and incompetent, thus the Defendant had no tenable defence nor counterclaim to agitate against them. They thus asked that the same be dismissed with costs and judgment entered as per the Plaint. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5463/eng@2026-09-17 4

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Hearing and Evidence: The 1st and 2nd Plainti ’s Case; 16. On close of the pleadings, the matter proceeded for hearing of the Plaintis’ case. The 1st Plainti testied on oath as PW1. PW1 informed the court that she had recorded a witness statement on 19.4.2022. She produced the documents listed in her list of documents dated 07.12.2017 as PEXb 1 8 respectively. PW1 stated that she entered into a genuine agreement. She claimed that the Defendant’s counter-claim was not genuine and should be dismissed. 17. On cross-examination by Mr. Biko, PW1 admitted that the suit property is registered in the Defendant’s name, and that the sale agreement is dated 26.1.2017. PW1 testied that she was taken to the suit property by Denis and Maria Soti, but she did not know its value. PW1 stated that the late Hon. Nicholas Biwott was present on 26.1.2017 at the oces of Ngigi Mbugua Advocates and signed the agreement, but there was no spousal consent prepared as the property was not matrimonial property. PW1 testied that she was not aware if Mr. Ngigi Mbugua prepared a statement with Police claiming that there was no exchange of money at his oce. She however stated that the said advocate had recorded a witness statement herein and was her witness in this case. PW1 testied that she was not aware that the late Hon. Biwott was out of the country on 26.1.2017, but said that the Defendant was present during the signing of the agreement, while Dennis and Maria Soti were witnesses thereto. 18. PW1 claims that she does not know why the agreement was transferred to Nairobi. PW1 further claried that the total purchase price was 19,000,000/-, but they paid a total 39,000,000/=. PW1 testied that she paid the money in cash as requested by the Defendant. PW1 told the court that the Defendant wanted a loan from them as she wanted more money. She told the court that they gave the Defendant a total of 30,000,000/- and there was an acknowledgment from the Defendant that she received money from them. PW1 was referred to clause 3 of sale agreement which provides that the title was to remain with the purchaser for 30 days to enable the Defendant attend the LCB, however, it was not possible for the Defendant to get consent of the LCB. PW1 admits that she did not invoke the default clause in the agreement. 19. PW1 informed the court that they are claiming KShs. 15,000,000/- from Denis and Maria in CMCC 470 of 2022, and KShs. 19,500,000/- from Prof. Kamar in CMCC 478 of 2022. PW1 admitted that the alternative claim is for refund of KShs. 19,500,000/- as well as 30% as default. PW1 went on to also admit that Denis and Marie had paid what was owed to them. PW1 conrmed that they were initially claiming 4,500,000/- from the Defendant, but they amended it to 19,500,000/-. PW1 conrmed that they were summoned to the Police station to record a statement relating to the transaction they did with the Defendant. PW1 conrmed that at the Police station, she had admitted that the Defendant gave them KShs. 24,000,000/-. PW1 however denied that both she and the 2nd Plainti had admitted at the Police station that they had no claim against the Defendant. 20. PW1 was then referred to clause 4 of the sale agreement and testied that the said clause is not equivocal. PW1 claimed that she had not returned the title deed to the Defendant because she had purchased the suit property. PW1 claims that she gave Dennis and Marie a loan of KShs. 15,000,000/- in cash at their insistence, but asserted that the title deed was not collateral for the said loan. PW1 testied that the suit property is not developed, but claimed that the transaction between them and the Defendant was that of willing buyer, willing seller. PW1 told this court that they did not carry out a valuation of the property and she thus did not know that the property is valued at KShs. 160,000,000/-. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5463/eng@2026-09-17 5

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21. PW1 could not recall who introduced them to either Denis and Marie or the Defendant herein, but she knew the Defendant as she was a public gure.PW1 explained that she was informed by a broker, whose name she could not recall, that the Defendant was selling land. PW1 admitted that she knew Silas Yator who was working with I & M Bank, but denied the allegation that they tried to defraud the Defendant in cahoots with the said Silas Yator. She further denied that Silas Yator had brought the Defendant’s problem to her. She further denied that Marie opened a bank account for the loan with the help of Silas Yator. PW1 claimed that the Defendant texted her while in Ethiopia advising them not to cash the cheques, and that while she still has the cheques, she cannot bank them as they are now stale. 22. On re-examination by Mr. Momanyi, PW1 testied that the land sale agreement was genuine, and she held the documents pending transfer of the title. PW1 testied that the transaction between her and the Defendant and Marie were dierent. She explained that one transaction was for sale of land, while the other was for loan. PW1 testied that the Defendant had never written to them cancelling the sale agreement. PW1 claimed that the Defendant complained against them to the police, but the police found out that the agreement was genuine, thus they were never charged. PW1 testied that the agreement was not made fraudulently, and that Silas Yator was not party to it. PW1 reiterated that she was advised by the Defendant not to bank the cheques. PW1 insisted that the loan has nothing to do with what is being litigated in this court. 23. PW1 reiterated that there was no evidence that the suit property was matrimonial property, and that the late Hon. Biwott was present when the sale agreement was written and he signed it as a witness. She testied that they amended the plaint as Marie Soti informed them that the money which was advanced was to go to the Defendant’s account, however, the claims in the lower court have no connection with the present case. PW1 claims that she was entitled to keep the title deed pending transfer of the land to them since the Defendant had not refunded them. PW1 stated that the loan to Denis and Marie had been acknowledged many times, and they had no doubt that Denis and Marie were to pay the loan. PW1 insists that she was not aware that spousal consent was required, but they paid the entire purchase price, and now, the Defendant, who breached the agreement, ought to complete her part. PW1 said that she was not trying to defraud anyone in this case, and prayed for transfer of title into their name, 30% penalty and costs in this case. This marked the end of PW1’s testimony and the close of the Plaintis’ case. The Defendant’s Case; 24. When it came to the Defendant’s case, she called Dennis Kipkorir Tum, who testied as DW1 and adopted his witness statement dated 08.04.2019 as his evidence-in-chief. DW1 informed the court that the Defendant was his aunt. He testied that he did not know the Plaintis professionally before this case. He told the court that the Plaintis were introduced to him by a bank Manager called Silas Yator, whom he approached seeking a bank loan. That the said Silas Yator informed him the loan would take long and he introduced them to the 1st Plainti. DW1 explained that they needed KShs. 15,000,000/-, but the 1st Plainti gave them KShs. 14,800,000/-. DW1 testied that he visited Allan Ngigi Advocate in the company of the 1st & 2 Plaintis as well as the Defendant, but claried that the late Hon. Biwott was not present for that meeting. Further, that the Defendant did not receive any money in that oce, since the money was being given to him and his cousin, and the Defendant only stepped in as a guarantor. 25. DW1 testied that an acknowledgment of debt was drawn as security for the debt dated 26.01.2017, and the Defendant also drew post-dated cheques totalling to KShs. 19,500,000/-, being the loan amount of KShs. 15,000,000/- and 30% thereon as interest. DW1 further testied that there was also a mock sale agreement equally dated 26.01.2017 drawn as security for the loan and to allow the large https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5463/eng@2026-09-17 6

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sums to be transferred. DW1 claried that the Defendant was not selling land, and that the title was to remain with the Purchaser. DW1 claimed that they were to pay back KShs. 15,000,000/- but could not get in touch with the Plaintis. That when they eventually got in touch, the Plaintis demanded an extra 30%, thus they paid KShs. 24,000.000/-. DW1 referred to clause 4 of the agreement for sale which provided that if they had not paid within thirty days, they could come and renegotiate. He however pointed out that the Plaintis had the post-dated cheques and could have cashed them. 26. DW1 testied that despite the Plaintis receiving KShs. 24,000,000/-, they were still demanding a further KShs. 14,000,000/- from them and KShs. 19,500,000/- from the Defendant. DW1 claimed that the Plaintis were asking for a total of about KShs. 200,000,000/-. DW1 testied that there was neither any need to sell the land worth over KShs. 130,000,000/- nor an agreement to do so. Further that the Plaintis had been paid over and above what they wanted. DW1 testied that at some point he was arrested and his cousin had to pay another KShs. 4,000,000/-. That thereafter, they sensed fraud and reported the matter to the police station. DW1 told the court that the Plaintis herein had sued him in CMCC No. 470 of 2022. 27. On cross-examination, DW1 admitted that he would not sign a document which did not state the intention of the parties thereto. DW1 testied that he signed a land sale agreement and the word mock did not appear therein. DW1 conceded that he had not seen any document from the Defendant revoking the sale agreement. He further said that there was no letter from either him or the Defendant stating that they went to Allan Ngigi Advocate to conduct any business other than what they did, or that they attempted any re-negotiations. DW1 was referred to the Sale Agreement dated 26.01.2017 and testied that there is no clause stating that the land was being sold at under-value. DW1 testied that there was no document stating that he was indebted or that the Defendant was a guarantor. 28. DW1 acknowledged that the agreement was indeed signed by the late Hon. Biwott and he was unaware of any complaint or investigation about the said signature. DW1 testied that nobody was forced to sign the sale agreement. He however reiterated that between himself, his cousin Sotimarie and the Defendant, they had paid KShs. 24,000,000/-. DW1 conrmed that the sale agreement over the suit property is the subject of these proceedings. DW1 admitted that neither the Sale agreement nor the acknowledgement signed by the Defendant mentioned KShs. 15,000,000/-, the 30% penalty or loan extended to him and Sotimarie. DW1 stated that the two documents did not however mention that the Defendant received any money. DW1 further conrmed that the late Hon. Biwott was alive on 26.01.2017. 29. Under re-examination by Mr. Biko, DW1 testied that in the statement to the Police, the 1st Plainti indicated that the Defendant had paid her KShs. 24,000,000/-. He reiterated that Hon. Biwott was not in the advocates oce on 26.01.2017 and he never saw him sign the agreement. DW1 pointed out that next to Hon. Biwott’s signature is the date 01.02.2017. He reiterated that he did not see the Defendant take the alleged KShs. 39,000,000/- from the Plaintis, and that the Plaintis had produced no documents. DW1 explained that the 30% penalty, which amounted to KShs. 4,500,000/-, was included in case there was no repayment within one month. DW1 testied that the 1st Plainti had admitted in her statement to the police that they had only received KShs. 14, 800,000/-. He reiterated that no money was paid over the land or the acknowledgment document at the Advocate’s oce. DW1 stated that although Silas Yator was present at the Zion mall meeting, he had no complaints with I&M bank as that issue was being pursued separately. He concluded by testifying that the loan was indeed being advanced to him and his cousin but they did not have security. 30. The Defendant herself testied as DW2 and opted to rely on her witness statement dated 08.04.2019. DW2 informed the court that she had also led a counterclaim, a list of documents as well as a verifying adavit. She went on to state that she neither executed a sale agreement with the Plaintis, nor received https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5463/eng@2026-09-17 7

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any money from them. DW2 explained that the sale agreement was requested by the Plaintis to enable her stand as guarantor for money borrowed by her child and her nephew, as well as allow transfer of the large sum of KShs. 15,000,000/-. She testied that in their request, the Plaintis asked for a physical title deed and she gave them for purposes of transferring the money. She also gave cheques for KShs. 19,500,000/-, which sum included the loan of KShs. 15,000,000/- and the interest of KShs. 4,500,000/-. She asserted that she was not paid any money, and there was no proof of such payment. DW2 further testied that Allan Ngigi Advocate conrmed at the police station that no money was exchanged in his oce. 31. DW2 denied harassing the Plaintis and explained that her children rst reported the matter to the police on 15th or 16th August, 2017. That thereafter, she recorded her statement with the police on 21.11.2017, when she also registered her complaint. She conrmed that the Plaintis had sued her daughter and nephew in CMCC No. 470 of 2022 for KShs. 15,000,000/- and also sued her in CMCC No. 478 of 2022 for KShs. 19,500,000/-. DW2 asserted that the loan amount of KShs. 15,000,000/and interest of KShs. 4,500,000/- had been repaid, but due to harassment, her children had actually paid a total of KShs. 24,000,000/-. That despite the Plaintis admitting they had been paid the KShs. 24,000,000/-, they had still gone to court. DW2 said that she had demanded for release of the title deed to the land on payment of the KShs. 24,000,000/-, but it was presently still with the 1st Plainti. She insists that she cannot transfer land to the Plaintis as she never sold it to them in the rst place. 32. DW2 claims that she was alerted by a land registrar that the Plaintis wanted to transfer the land, and she placed a caveat. DW2 was referred to the agreement for sale and she stated that she only allowed the 1st Plainti to remain with the title deed for only 30 days since her children were supposed to have repaid the loan by then. Since that was not possible, the Plaintis were to cash all her cheques on 27.02.2017 and the title was to be released on that date. DW2 explained that if the Plaintis succeed, between the KShs. 39,000,000/- sought herein, the money in the debt acknowledgment and the money sought in CMCC Nos. 470 and 478 of 2022, they stand to gain a total of KShs. 63,500,000/-. That this amount added to the KShs. 24,000,000/- totals to KShs. 87,000,000/- and there can be no justication for this amount sought by the Plaintis. DW2 prayed that the Plaintis’ suit be dismissed and her counterclaim be allowed. DW2 produced the Debt Acknowledgement dated 26.01.2017 and Agreement for Sale dated 26.01.2017 in her list of documents dated 08.04.2019 and marked the valuation report dated 04.02.2019 as DMFI1. 33. On cross-examination, DW2 admitted that the subject of this case is a debt acknowledgement and agreement for sale over the suit property both dated 26.01.2017. DW2 conrmed that there was no mention of guarantorship in the sale. That the sale neither mentioned anyone else, nor a loan and borrower. Further, that it also did not mention that it was subject to valuation, or even that it would be nullied. DW2 states that she had no documents showing that she paid the Plaintis anything because she did not owe them. DW2 insisted that her daughter borrowed KShs. 15,000,000/- but she had nothing showing her daughter was paid on her behalf. DW2 testied that the agreement does not state that the KShs. 19,500,000/- was the same money as mentioned in the acknowledgement, and neither did the acknowledgment state vice versa. She admitted that she had also signed an application for consent and transfer form with the passport photos, ID and KRA PIN and she was aware of their implication. DW2 further admitted that she had voluntarily signed the agreement for sale for the sake of the bank transaction. 34. In addition, DW2 testied that the debt acknowledgment states that she received the money and the agreement also states that she had agreed to sell and she acknowledged receipt of the consideration by signing it. DW2 testied that the RTGS proved the KShs. 15,000,000/- and there was evidence of withdrawal of KShs. 4,500,000/-. DW2 claimed that she was advised by Silas Yator to execute the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5463/eng@2026-09-17 8

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documents but she denied receiving any money. As to the complaint with the Police, DW2 stated that the investigation was still ongoing. DW2 insisted that there was no sale in this case and nothing was paid to her, although she had nothing to contradict clause 2 of the agreement on her willingness to sell. 35. DW2 was re-examined and she testied that nothing was transacted in Mr. Ngigi’s oce and that there was no evidence that she received KShs. 39,000,000/-. DW2 testied that the transfer forms did not indicate the consideration, since no money was to be exchanged. DW2 noted that the Plaintis had stated at the police station that they had been paid KShs. 24,000,000/- and had no claim against her. DW2 reiterated that she handed over the title deed to the 1st Plainti to hold for 30 days until her children repaid the loan, but to date, it is yet to be returned despite the loan having been cleared. DW2 reiterated that she received no money, and that the Plaintis had no paper trail showing that they paid her KShs. 39,000,000/-. She further reiterated that she signed the agreement to enable the bank to release the money to her children. 36. The Defendant then called Sotimarie Jepkemboi to testify as DW3. She adopted her witness statement dated 08.04.2019 as her evidence-in-chief and sought to rely on the documents she had led. According to DW3, her understanding of the agreement is that it was void since it was only meant as one layer of collateral for a loan of KShs. 15,000,000/- that was advanced by the Plaintis to Dennis Tum and herself. DW3 referred to the fact that it was used as the primary supporting document for the receipt and further refund of the monies between the Plaintis, Dennis Tum and herself. She further explained that no payment was made for the purchase. She further stated that the loan advanced to them was acknowledged by the Defendant in the sum of KShs. 19,500,000/-, which amount included the principal amount of KShs. 15,000,000/- and 30% interest thereon. Further, that the Plaintis were given the title deed to hold for 30 days. DW3 conrmed that they had since paid back to the Plaintis KShs. 24,000,000/- as repayment for the loan, yet the Plaintis are still demanding land and money in the two cases led in the lower court. 37. On cross-examination, DW3 admitted borrowing KShs. 15,000,000/- from the Plaintis. DW3 claimed that she had two statements indicating payment of KShs. 10,000,000/- to the 1st Plainti and another for payment of KShs. 5,000,000/- to the 2nd Plainti. DW3 was referred to the sale agreement and testied that it was for sale of the suit land to the Plaintis for the sum of KShs. 19,000,000/-. Further, that the Plainti was to remain with the title for 30 days from 27.01.2017 pending transfer and LCB consent. DW3 was taken through the agreement for sale and admitted that the same did not mention her or Dennis as borrowers. 38. On reference to her witness statement, DW3 testied that Silas Yator had advised her and Jacquelline Jebet to open personal accounts with I&M Bank. DW3 claimed that besides the agreement, her mother also signed a transfer form and an application for consent, and also availed copies, of her ID card, PIN and photos. DW3 stated that they reported the Plaintis to the police for harassment in 2017 and the investigations are ongoing. She admits that she has no acknowledgment from the Plaintis for the cash they had paid them. Further, that she never went to the advocate’s oce when the agreement was made and could not claim to know what happened there. DW3 further testied that she signed the sale agreement knowingly. 39. On re-examination, DW3 reiterated that she was not in the lawyer’s oce on 26.01.2017 but signed the agreement on 01.02.2017. DW3 stated that aside from the title deed, cheques were also given as security. DW3 pointed out that both parties herein had acknowledged the contents of the LCB Application form, which indicated that the purchase price was not applicable, and this was because there was no transfer of funds between the Plaintis and the Defendant. DW3 insisted that she had paid KShs. 24,000,000/- as evidenced in her bank statements and RTGS, which amount includes KShs. 9,000,000/- in cash, all of which were acknowledged by the Plaintis. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5463/eng@2026-09-17 9

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40. The Defendants nal witness was Jacquelline Jebet Kipkemboi, who testied as DW4 and adopted her witness statement dated 08.04.2019. She testied that she knew Silas Yator prior to 2017 through the banking industry, but did not know the Plaintis prior to 2017. She denied approaching Mr. Yator to sell any land or look for buyers on behalf of the Defendant. DW4 testied that her cousins Sotimarie and Dennis wanted to start a business. That the two approached her and she introduced them to Mr. Yator. DW4 testied that she accompanied her cousin Sotimarie (DW3) to the bank where she paid KShs. 9,000,000/- at the Manager’s oce to the Plaintis in cash and KShs. 15,000,000/- by bank transfer, totalling to KShs. 24,000,000/-. She armed that there was no sale agreement over land between the Plaintis and the Defendant. 41. Under cross-examination, DW4 testied that she had not made any reference to the issue of the sale agreement or repayment of monies in her witness statement. She explained that she was in Nairobi on 26.01.2017 and was not at the lawyer’s oce in Eldoret and was neither mentioned in nor signed the agreement as a witness. She testied that she had not seen any loan application between the bank and her cousins. She claried that the Defendant was her aunt, while Sotimarie and Dennis were her cousins. She further had no record of payment of the alleged KShs. 9,000,000/-, even though she acknowledged that banks had CCTVs, but she had not requested for them. 42. On being re-examined, DW4 testied that she witnessed KShs. 9,000,000/- being paid. DW4 specically reiterated that at the Bank, she had witnessed Sotimarie handing over the said KShs. 9,000,000/- to the Plaintis. This marked the end of DW4’s testimony as well as a the close of the Defendant’s case. Submissions: 43. At the close of the hearing, the court directed the parties to le their nal written submissions. The parties complied, with the Plainti ling submissions dated 17th April, 2026 and Supplementary Submissions dated 29th May, 2026. The Defendant on the other hand led her submissions dated 7th May, 2026. Analysis and Determination: 44. I have considered the pleadings led herein, the witness testimonies and evidence tendered before this court. I have also keenly analysed the parties’ arguments, including the authorities as cited in their respective submissions, and I am of the opinion that the following issues arise for consideration:i. Whether the transaction under the sale agreement dated 26.01.2017 is the same transaction as that referred to in the acknowledgment of debt also dated 26.01.2017 ii. Whether the loan agreement dated 26.01.2017 was illegal or unconscionable; iii. Whether there was any money due and owing between the parties herein; iv. What orders should the court issue in the circumstances? a. Whether the Transaction under the Sale Agreement dated 26.01.2017 is the Same Transaction as that Referred to in the Acknowledgment of Debt also Dated 26.01.2017 45. The dispute herein relates to the purported sale of the parcel of land known as Kiplombe/Kiplombe Block 10(Growel)835, the suit property herein. The Plaintis claim that they purchased the said parcel from the Defendant and paid for it fully. For this reason, the Plaintis seek to enforce the sale and https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5463/eng@2026-09-17 10

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have the land transferred to them. The Defendant on the other hand claims that there was only a mock sale agreement, since she was made to believe that the same was only to enable the transfer of the huge amount of KShs. 15,000,000/- in the bank, and allow her stand as guarantor for the said loan. In essence, the Defendant claims that the agreement for sale herein was more in the line of a shylock business, and despite being fully paid, the Plaintis are still seeking more funds, and a transfer of the suit land herein. 46. From the facts averred by the Plaintis, the Defendant admitted indebtedness and executed a personal acknowledgement of indebtedness to the Plaintis. Interestingly, the Plaintis also claimed under the same head, that the Defendant sold the suit property to them, and the agreement was reduced in writing and duly executed by the Defendant. The Plaintis claim that the Defendant received both a loan and consideration for the purchase price from them, but they insist that the two transactions were separate and independent. 47. There is no doubt that the suit property is currently registered in the name of the Defendant herein as the sole proprietor. This is further proved by the copy of the title deed produced before this court by the 1st Plainti. Also included among the documents produced by the Plaintis is the Agreement for Sale dated 26.01.2017. The parties to the said agreement for sale are the parties before this court. The Defendant herein is Vendor and the 1st and 2nd Plaintis herein are purchasers. 48. The agreement indicates that it was for sale of the suit property herein for the agreed amount of KShs. 19,500,000/-, which amount was to be paid in full on execution thereof and execution by the Defendant would be an acknowledgment that the said funds had been received. Under the said agreement also, the original tittle deed was to be deposited with the Purchasers pending the transfer and LCB Consent. The Defendant has admitted that pursuant to the agreement, she did avail copies of her ID, KRA Pin and passport photographs. 49. In what is alleged to be a separate transaction, the Defendant executed on the same date (26.01.2017) a document titled “Acknowledgment of Debt”, where she admitted that she owed a sum of KShs. 19,500,000/- to the Plaintis. She undertook to repay the said amount within 30 days. It indicates that the Defendant issued post-dated cheques in favour of the 1st and 2nd Plaintis adding up to KShs. 19,500,000/- to be encashed by the Plaintis on 27.02.2017, which was exactly 30 days from the date of its execution. It must be noted that the said document does not state how the said debt arose. 50. The similarities in the two transactions go beyond the individuals involved, who evidently are the parties herein. From the Acknowledgment of Debt also dated 26.01.2017 produced by the parties herein, the Defendant herein admitted to being indebted to the Plaintis to the tune of KShs. 19,500,000/-. Evidently, the sum acknowledged in the second document is the same as that allegedly paid as purchase price in the Agreement for Sale. 51. The amount as explained by the Defendant and her witnesses is that it included the initial loan of KShs. 15,000,000/- advanced to Sotimarie and Dennis and the agreed penalty calculated at 30% of the principal amount which comes to KShs. 4,500,000/-. It is interesting to note that the Plaintis have been adamant that the agreement for sale and the acknowledgment represent two separate and distinct transactions. However, it is in fact the Plaintis who rst led the acknowledgment of debt in court alongside the agreement for sale herein as evidence. 52. As indicated earlier, the acknowledgment does not indicate how the debt arose. However certain aspects of the acknowledgment of debt stand out. For starters, both documents are dated 26.01.2017, and the amount for which the Defendant herein admitted to be indebted to the Plaintis is KShs. 19,500,000/- which is the same amount indicated as the purchase price payable under the Agreement https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5463/eng@2026-09-17 11

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for Sale. That aside, the debt allegedly owed by the Defendant was payable within 30 days from 26.01.2017, meaning that the debt fell due on 27.02.2017. Similarly, the post-dated cheques drawn by the Defendant were to be cashed on 27.02.2017. This period of 30 days is signicant since it is equally the period within which the Plaintis had been allowed under the agreement for sale, to retain the original title deed. 53. Moreover, why would the agreement specify that the title deed was to remain with the 1st Plainti for 30 days only? If consideration was paid in full, the next step was to process the transfer, and not limit the amount of time within which the Purchasers was allowed to retain the title to the land they had purchased and paid for in full. This detail is in my opinion, proof enough that the purported sale agreement was nothing more than a front to facilitate the loan advanced to the Defendant’s children, and that it was security to guarantee repayment thereof. 54. Additionally, the 1st Plainti under cross-examination told this court that Sotimarie had informed her that the monies advanced were to go into the Defendant’s account. If the Plaintis are to be believed, their dealings with Sotimarie and Dennis Tum were separate from their dealings with the Defendant herein. The Plaintis further claim that the money advanced under the loan to the Defendant’s child was separate from that advanced to the Defendant herein. If that was indeed true, then there would be no reason for Sotimarie to inform the Plaintis that the money was to go into the Defendant’s account. However, this statement in the 1st Plainti’s testimony conrms that the transactions herein are not separate and distinct as alleged, but in fact are inter-connected. So inter-connected as to lead this court to believe that the sale agreement and the acknowledgement of debt do refer to the same transaction and payment. b.Whether the Agreement Meets the Requisite Conditions of a Contract; 55. The next issue for determination is whether the contract between the Plaintis and the Defendant was valid. It is trite that a valid, legally binding contract requires various essential elements, which include, an oer, an acceptance, consideration, legal capacity, legality of purpose, and certainty of terms. As submitted by the Defendant’s advocate, consideration is a fundamental pillar of the Law of Contract, without which an agreement becomes void. Consideration is the legal value exchanged between parties, which has the ability to transform a casual agreement into a legally binding contract. The Black’s Law Dictionary, 9th Edition denes the term consideration as:“ “ 1. Something (such as an act, a forbearance, or a return promise) bargained for and received by a promisor from a promisee; that which motivates a person to do something, esp. to engage in a legal act. • Consideration, or a substitute such as promissory estoppel, is necessary for an agreement to be enforceable.” 56. According to the Agreement for Sale relied on by the Plaintis herein, the suit property is alleged to have been sold at the agreed consideration of KShs. 19,500,000/-. The agreement states that they paid the said amount in full on the date of execution of the agreement and that execution by the Defendant who was the Vendor, was acknowledgement of receipt of the said funds. Despite executing the agreement for sale, the Defendant now claims that she did not in fact receive any funds from the Plaintis. The Defendant further told this court that no business was transacted at the oce of Allan Ngigi Advocate on the date of the Agreement for Sale. In fact, the Defendant denies ever receiving money on account of either the agreement for sale or the acknowledgment of indebtedness. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5463/eng@2026-09-17 12

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57. The Defendant’s testimony is corroborated by that of Dennis Tum, who equally testied that no money changed hands between the parties on 26.01.217 when the parties went to the oce of Allan Ngigi. Dennis Tum added that no money changed hands later since the contract did not signify an actual sale but a security for the loan advanced to him and Sotimarie. Both the sale agreement and acknowledgment were drafted by Allan Ngigi Advocate who attested the signatures of all the parties thereto. Undoubtedly, he is a neutral party who as an ocer of the court, was the perfect witness to inform this court whether indeed money exchanged hands on the date of the said agreement. The said advocate however, did not appear before this court to testify. 58. This court was however made aware that the said advocate recorded a statement with the police when a complaint was made relating to the present transaction. Indeed, the Defendant has referred this court to the Statement of Allan Ngigi made at the police station on 15.12.2017 which was availed to this court. In the said statement, the Advocate stated that although the parties executed the agreement in his oce, no money exchanged hands at his oce as the parties left to go and pay each other elsewhere. The advocate further stated that he prepared a spousal consent and a land transfer form, but these two were not executed in his oce. Interestingly, the Land Transfer Form produced by the Plaintis is not only signed but witnessed by the said advocates. 59. Eectively, the Defendant had discharged her burden of proof as regards the allegation that no money exchanged hands between the parties. Consequently, the burden of proof now shifted to the Plaintis, who being desirous of demonstrating to this court that they indeed paid money, now bore the burden of proving the same to the court. However, the Plaintis have not produced any evidence by way of cash withdrawals or money transfers to show that they indeed had the funds which they then transferred to the Defendant in respect of the purchase of the suit land. The 1st Plainti claimed that she obtained the money from sale of airtime from Safaricom cards. However, there has been no evidence of such business or that the proceeds thereof were used to purchase the land. 60. Similarly, even the Transfer Form signed by the Defendant did not indicate the consideration in respect of which it was made. The Plaintis herein have failed to demonstrate that they indeed paid any money to the Defendant on the alleged sale and purchase of the suit property herein. The Plaintis have thus failed to discharge that burden. It follows, therefore, that without proof that consideration was duly paid, then the agreement for sale cannot be said to be valid and/or binding. c. Whether the Agreement Dated 26.01.2017 was Illegal or Unconscionable; 61. Before proceedings on discussing this issue, I must rst point out that the law recognizes the principle of freedom of contract which allows parties the absolute liberty to choose whether, with whom, and on what terms to enter into an agreement without government interference. The doctrine of freedom of contract was articulated in Githunguri Dairy Farmers Co-operative Society Ltd v Attorney General & 2 others [2016] KEHC 7104 (KLR), as follows;“ Freedom of Contract The doctrine of freedom of contract basically means the freedom of a party to chose with whom to contract and on whatever terms it may consider advantageous to its interest or to choose not to contract. It is a concept of common law jurisdictions. As Lord Diplock https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5463/eng@2026-09-17 13

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remarked in the case of Photo Production Ltd vs Securicor Transport Ltd [1980] AC 827,848 “ A basic principle of the common law…is that the parties are free to determine for themselves what primary obligations they will accept” The will of the parties, it is said, is what dictates contractual liability and there ought to be no liability without consent embodied in a valid contract: see Constantine -v- Imperial Hotels Ltd [1944] AC 693.” 62. 63. However, courts have noted that due to developments in modern life and policy, the concept of freedom of contract, no doubt has today been weakened for both economic and social reasons. The same courts now recognize that the doctrine of freedom of contract is not absolute and may be limited where the terms are unfair, unconscionable, or contrary to public policy. In the case of Nderi vs Ireri & 2 others (Environment and Land Appeal E046 of 2024) (2026) KEELC 4301 (KLR) for instance, the court found that:“ 33. While it is trite law that courts do not rewrite contracts for parties and that parties are bound by their agreements, it is also trite that courts cannot enforce illegal contracts or contracts that are contrary to public policy. Section 26 of the Land Registration Act gives the grounds upon which a title can be challenged. These include titles acquired illegally, un-procedurally or through a corrupt scheme. The transfer of the suit land by the 1st Respondent to his name was illegal. He did not pass a good title to the other Respondents. 34. In Mbobu & Another vs Hypac Investments Limited & Another (2025) KEHC 16564 (KLR) the High Court declared a loan agreement unconscionable, illegal and unenforceable and directed the discharge of the title and retransfer of the land to the Appellant. In that case, there was a charge over the suit land that had been oered as security.” Similarly, in Kenya Commercial Finance Company Ltd vs Ng’eny & another (2002) eKLR, the court found that in some cases, equity will intervene to relieve a party from harsh, unconscionable and oppressive bargains. As to what constitutes an unconscionable contract, it has been dened over time to mean a contract whose terms are unduly harsh and commercially unreasonable. A proper denition was however given by the Court of Appeal in Margaret Njeri Muiruri vs Bank of Baroda (Kenya) Limited [2014] KECA 319 (KLR), where it dened an unconscionable contract as follows:“ Nevertheless, courts have never been shy to interfere with or refuse to enforce contracts which are unconscionable, unfair or oppressive due to the procedural abuse during formation of the contract, or due to contract terms that are unreasonably favourable to one party and would preclude meaningful choice for the other party. An unconscionable contract is one that is extremely unfair. Substantive unconscionability is that which results from actual contract terms that are unduly harsh, commercially unreasonable, and grossly unfair given the existing circumstances of the case (See Black’s Law Dictionary, 9th Edition, Gardner, Ed.).” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5463/eng@2026-09-17 14

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64. In the case of LTI Kisii Safari Inns Ltd & 2 others vs Deutsche Investitions - Und Enwicklungsgellschaft (‘Deg’) & others [2011] KECA 1 (KLR), the Court of Appeal set out the test for unconscionability as follows:“ Unconscionable bargains (52) This is also an equitable doctrine. There are at least three prerequisites to the application of a doctrine, rstly, that the bargain must be oppressive to the extent that the very terms of the bargain reveals conduct which shocks the conscience of the court. Secondly, that the victim must have been suering from certain types of bargaining weakness, and, thirdly, the stronger party must have acted unconscionably in the sense of having knowingly taken advantage of the victim to the extent that behaviour of the stronger party is morally reprehensible. … 53. The case of Greg Saugstad vs Hugh McGillivray & Anor 1994 CanLII 2317(BS SC) - of the Supreme Court of British Columbia cited by the appellants’ counsel illustrates the approach in Canada thus:“ Where a claim is made that a bargain is unconscionable, it must be shown for success that there was inequality in the position of the parties due to ignorance, need or distress of the weaker party which would have him in the power of the stronger, coupled with proof of substantial unfairness in the bargain. When it has been shown, a presumption of fraud is raised and the stronger must show in order to preserve his bargain that it was fair and reasonable.’ In essence, the stronger party in order to be allowed to retain the bargain, should demonstrate among other things, that, the victim was fully aware of the nature of the transaction; that the transaction was not oppressive, and where necessary, that, the victim received independent advice and that the deal is not morally reprehensible.” 65. Courts have held that inequality of bargaining power is a relative concept, but acknowledge that in any negotiation, the bargaining powers of the parties are seldom absolutely equal. An example is given that an individual wanting to borrow money from bank, building society or other nancial institutions in order to pay his liabilities or buy some property has virtually no bargaining power and will have to take or leave the terms oered to him. See the decision of Dillon L. J on inequality of bargaining power in Alec Lobb vs Total Oil [1983] WLR 173 at p. 183 as cited by the Court of Appeal in LTI Kisii Safari Inns Ltd & 2 others vs ‘Deg’) (Supra). 66. In such a situation then, it is the person lending the money that holds the bargaining power. In this case, since the Plaintis were the persons with the money, the Defendant and her children being in need of it, held little to no bargaining power. As the Defendant and her witnesses have testied, they took the deal as oered by the Plaintis, which included not only drawing the agreement for sale as security, but also depositing the original title to the land, as well as signing an acknowledgement of a debt to secure release of the funds. 67. Moreover, the interest rate for the loan would appear to be 30% for the one month that the title was to remain with the Plaintis pending repayment of the sums advanced. That brings the rate to https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5463/eng@2026-09-17 15

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approximately 7.5% per week. On how oppressive such an interest rate is, I am guided by the decision of the High Court in Mbobu & another vs Hypac Investments Limited & another (Commercial Case E144 of 2023) [2025] KEHC 16564 (KLR), where it was held that:“ The doctrine of unconscionability in contract law has consistently been upheld by the Kenyan Courts to protect parties against contracts that are so unfair and oppressive as to oend the sense of justice. In Dhiman v Shah (supra), the Court of Appeal stated that the doctrine allows a court to refuse to uphold a contract, or specic terms of it, if they were imposed in a way that took undue advantage of one party’s vulnerability, ignorance, or lack of bargaining power. 68. 68. In the present case, the interest rate of 15% per month, compounded with a 5% weekly penalty, translates to extraordinarily high annualized rates exceeding 400% when compounded. Such terms clearly fall within the denition of unconscionable conduct. The interest rate is undeniably excessive and manifestly oppressive, a gure that no reasonable borrower could sustain, and is, on the face of it, contrary to the principles of equity and fairness. 69. Whereas it is true that the Plaintis voluntarily executed the agreement, courts are not blind to the reality of inequality of bargaining power, especially in nancial transactions involving urgent credit needs. The 1st Plainti’s status as an advocate does not, in my view, automatically neutralize such inequality or justify the enforcement of a contract whose terms would ‘shock the conscience of the court’.” In Dhiman vs Shah [2025] KECA 1264 (KLR), the Court of Appeal again held as follows:“ This sum arises from the application of an annual interest rate of 36% compounded quarterly over a period of nearly three decades … the terms included in the parties’ agreement. It is not in question that this astronomical gure exceeding KShs. 69 billion on a principal sum of KShs. 4 million is a disproportionate escalation; it is not merely commercially unreasonable; it is, in the eyes of equity and good conscience, oppressive and unconscionable. As demonstrated above, courts in Kenya have consistently held that where the terms of a loan agreement result in punitive or extortionate nancial consequences — particularly through excessive compounding over long durations — they may be struck down or moderated. This is because equity abhors oppression and refuses to enforce contractual provisions that shock the conscience of the court. In the present case, the sheer disparity between the original loan and the amount which would now be due evidences a contract whose enforcement, without judicial intervention, would undermine principles of fairness, good faith, and proportionality. We, therefore, nd the contract between the parties void for unconscionability.” 69. The 1st Plainti in her testimony told this court that they had paid to the Defendant a total of KShs. 39,000,000/- arising from two transactions, each worth KShs. 19,500,000/-. In short, the Plaintis seek to surreptitiously and clandestinely recover more than twice the amount of the money they claim to have advanced to the Defendant under the agreement by claiming that there were two transactions. Yet as has become clear, there was only one transaction under which the Defendant was made to sign both the sale agreement and an acknowledgment of debt. 70. The Court of Appeal in Dhiman vs Shah (Supra), concluded that a court can interfere with a contract, even where parties have agreed on the terms, if the resulting agreement is highly oppressive https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5463/eng@2026-09-17 16

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or unfair as to oend an objective sense of justice. There is no doubt in my mind therefore, that the bargain procured from the Plaintis by the Defendant was unconscionable and oends the sanctity of contract, but was also, illegal as it was plainly calculated to seize the Defendant’s property. 71. The Plaintis dishonesty becomes clear from the fact that they both made reference to this case in their statements at the police made on 30.11.2017, yet the Plaint through which this case was instituted is dated 07.12.2017 and was led on 08.12.2017. Since the case number of any suit is only allocated upon ling and paying the requisite ling fees, it is inconceivable that the Plaintis would have known on 30.11.2017 the case number of their present suit, yet the same had not been led and no case number had been allocated. d. Whether there was any Money Due and Owing between the Parties herein 72. Despite the fact that this court has found that the agreement made between the Plaintis and the Defendant was invalid, and further, that it was unconscionable, it has been admitted by the parties herein that some money exchanged hands. There can be no doubt that allowing the Defendant to retain the land and also keep the money would only result in unjust enrichment on her part at the expense of the Plaintis. Equally, directing the Defendant to make further payments where she has already repaid the requisite amounts will lead to a similar result. 73. Notably, the Plaintis have not been consistent as regards the amount actually paid to the Defendant herein. Due to the changing gures claimed by the Plaintis, and also to prevent unjust enrichment of one party at the expense of the other, it is in the interest of justice, this court is obliged to determine whether there are any monies due and still owing as between the parties herein. 74. The Plaintis claim that the money they had advanced to the Defendant amounts to KShs. 39,000,000/-, being KShs. 19,500,000/- under the sale agreement and a similar amount allegedly advanced under the Acknowledgment of debt. The Defendant and her witnesses, who were all deeply involved in the present transactions, have been consistent that the amount advanced by the Plaintis was a loan of KShs. 15,000,000/-. Per their understanding with the Plaintis, the money was to be repaid within 30 days, failure to which a penalty/interest of 30% of the principal amount would be applied. This penalty calculated at 30% amounts to KShs. 4,500,000/-, which brought the total amount to the KShs. 19,500,000/- claimed to have been paid by the Plaintis under the agreement. 75. I have seen the statement made to the Police regarding this dispute when the same was reported by the Defendant and her children. In both the Plaintis’ statements to the police, they admitted that the Defendant had paid the sum of KShs. 24,000,000/- being the amount payable to them on account of the acknowledged debt. The 1st Plainti admitted that she did not have any claim against the Defendant on the debt of KShs. 19,5000,000/-. 76. Although the Plaintis kept insisting that the Defendant had promised to pay the amount owed plus something in appreciation, this “appreciation” was neither expressly indicated in the purported Agreement for Sale nor the Debt Acknowledgment. Therefore, the idea that the Defendant was to repay the debt with 30% interest, or “appreciation” as the Plaintis put it in the Statements made to the Police, is totally unsupported even by their own evidence. 77. Unlike the sale agreement, the Debt Acknowledgment does not actually appear to have anticipated any event of breach or default on the part of the Defendant, but only requires that the post-dated cheques issued by the Defendant be “encashed on 27.02.2017”. The Plaintis cannot claim that the debt was not settled yet they have tabled no evidence that they banked the said cheques on the agreed date, and they were dishonoured. As to the 1st Plainti’s claim that the Defendant told her not to bank the cheques, there is no proof of the alleged text or any communication from the Defendant advising https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5463/eng@2026-09-17 17

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the Plaintis not to bank the post-dated cheques. Since the Plaintis already had the cheques, there was no need for permission to cash them when the time came. 78. It is clear therefore, that the amount of KShs. 24,000,000/- paid to the Plaintis as admitted in their statements dated 30.11.2017 to the Police can only have arisen from the amounts advanced under the agreement for sale. The Plaintis conveniently did not reveal how the said payment KShs. 24,000,000/repaid to them by the Defendant was made, but they have conrmed that they have so far been paid that amount. 79. Indeed, the Defendant and her witnesses produced Bank Statements from the account of Sotimarie Jepkemboi Biwott showing cash withdrawals and RTGS transfers in favour of the Plaintis herein. In her Bank Statement from Transnational Bank-Eldoret Branch, Sotimarie withdrew KShs. 4,500,000/on 07.04.2017 and on 08.04.2017, she withdrew KShs. 5,000,000/-. She has told this court that the said amounts were paid in cash to the Plaintis. Thereafter, she transferred a total of KShs. 15,000,000/on 10.04.2017 by two separate RTGS instructions for the same account. 80. The Defendant pleaded in her Defence and Counterclaim that the KShs. 15,000,000/- was transferred to Sotimarie’s Bank Account at I&M Bank and later transferred by way of RTGS to the 1st and 2nd Plainti. This is evidenced by Sotimaries’s Bank Statement from I&M Bank which shows that KShs. 10,000,000/- was on 10.04.2017 transferred by way of RTGS to the 1st Plaint. The balance of KShs. 5,000,000/- was on 12.04.2017 transferred by way of RTGS to the 2nd Plainti. These amounts put together do add up to KShs. 24,000,000/-, which the Plaintis have, in their said statements made before the police, formally admitted that the Defendant had repaid. The Plaintis went on to state therein that they had no other claim against the Defendant. 81. However, since the initial loan amount advanced to the Defendant’s children was KShs. 15,000,000/-, the penalty/interest calculated 30% thereon comes to KShs. 4,500,000/-. This is the amount that was secured under the purported agreement for sale and the acknowledgment of debt. That being the case, the said amount was paid in full, and there is no amount due and owing to the Plaintis from the Defendant herein. Be that as it may, the Defendant clearly overpaid the money owed to the tune of KShs. 4,500,000/-. It is only just therefore that the amount paid to the Plaintis in excess be refunded to the Defendant as sought in the counterclaim. e. What Reliefs should this Court issues in Light of the Prevailing Circumstances? 82. Bearing the foregoing deliberations in mind, the court now moves to determine the reliefs that ought to issue in the present suit. The Plaintis moved to court seeking specic performance of the agreement for sale dated 26.01.2017 through an order directing the transfer of suit property from the Defendant to themselves. In the alternative, the Plaintis asked the court to direct the Defendant to eect a refund to their purchase price plus 30% per centum penalty. 83. In this decision, this court has held that the agreement for sale is not only invalid, but also illegal and unconscionable. That being the case, it follows that the same cannot be enforced as against the Defendant. Consequently, the prayers sought by the Plaintis cannot issue, thus their suit is for dismissal. 84. On the other hand, the Defendant sought to have the purported sale agreement dated 26.01.2017 declared void ab initio. The Defendant also sought an order directing the Plaintis to immediately surrender to her the original Title Deed to the suit property, as well as all transfer instruments, application to the LCB and all documents delivered to the Plaintis on the strength of the said agreement. The Defendant also sought a refund of KShs. 4,500,000/- coercively and unduly paid as the last instalment to facilitate release of the Original Title Deed. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5463/eng@2026-09-17 18

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85. Flowing from the ndings above, this court has already found that the said sale agreement is invalid, illegal and unconscionable. For the said reason, the same is indeed void. As a result, there can be no justiable reason to allow the Plaintis to keep holding on to the Original Title Deed, the LCB Consent Application Form or ID, Pin and Passport Photos of the Defendant delivered to them pursuant to the agreement. In addition, this court has also found that the Plaintis received an amount of KShs. 4,500,000/- in excess of the sums that were actually due to them from the Defendant. As a result, it is only fair and just that the same be refunded to the Defendant. f. Who shall Bear the Costs of the Present Suit? 86. On costs, Section 27(1) of the Kenya Civil Procedure Act gives the court absolute discretion with respect to the legal costs of any suit. The award of costs is however not automatic, as the proviso to Section 27(1) allows the court to decline to award costs where there exists justiable reasons for doing so. 87. In the present case, the Plaintis have failed at proving their case, while the Defendant has succeeded in her counterclaim. There being no compelling reasons to depart from the general rule, I do hereby award the costs of the present suit to the Defendant. Orders:88. 89. The outcome is that the Plaintis’ suit contained in their Plaint dated 7th December, 2017 is found to have no merit and the same is hereby dismissed with costs. On the other hand, the Defendant’s counterclaim dated 8th April, 2024 is merited, and the same is allowed as follows:a. A declaration be and is hereby made that the sale agreement dated 26th January, 2017 is void ab initio. b. An order be and is hereby issued directing the Plaintis to immediately surrender to the Defendant the original Title Deed for all that parcel known as L.R. No. Kiplombe/Kiplombe Block 10 (GROWEL) 835, all transfer instruments, application to the Land Control Board and all documents delivered to the Plaintis on the strength of the sale agreement dated 26th January, 2017. c. The Plaintis are hereby directed 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. d. The Defendant shall have costs of this suit plus interest thereon. Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT ELDORET ON this 17TH DAY OF SEPTEMBER, 2026 VIDE MICROSOFT TEAMS. HON. C. K. YANO JUDGE In the virtual presence of:Mr. Biko for the Defendant. Mr. Momanyi for the Plaintis. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5463/eng@2026-09-17 19

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Court Assistant - Laban. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5463/eng@2026-09-17 20

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