Marete & 2 others v Kinyua

exclusion of extrinsic evidence, is subject to certain known exceptions. The exceptions include: Fraud; misrepresentation; deceit; coercion; inducement; or mistake. 3. In the case of Centurion Engineers & Builders Limited v Kenya Bureau of Standards [2023] KECA 1289 (KLR), the Court of Appeal reiterated the importance of the doctrine of the sanctity of contract. 4. The court stated thus: “ As this Court has severally stated, and now a longstanding principle of law, that parties to contract are bound by the terms and conditions thereof, and that it is not the business of courts to rewrite such contracts. In National Bank of Kenya Limited v Pipe Plastic Samkolit (K) Ltd [2002] 2 EA 503 [2011] eKLR at 507, this Court stated:“A court of law cannot rewrite a contract between parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue inuence are pleaded or proved.” See also Pius Kimaiyo Langat v Co-operative Bank of Kenya Limited [2017] eKLR.” 5. The determination of the subject appeal turns on whether or not the Respondent [who was the Plainti in the lower court] duly proved and established the exceptions to the general rule; and whether the doctrine of non est factum ["it is not my deed".] was established to the requisite standard. 6. Before venturing forward to engage with the competing legal issues, it is imperative to put the facts of this case into context. The facts are rather straight forward. 7. The facts are: Patrick Kinyua Iringo [now deceased], was the registered owner of LR No. Nkuene /LMikumbune /840 [the suit property]; the suit property measured approximately 1.02 ha [2.68 acres]; the deceased sought to sell [sic] a portion of the suit property; the deceased entered into a sale agreement with the 1st defendant; the sale agreement was reduced into writing; the sale agreement was executed by the 1st defendant and the deceased; thereafter, the suit property was transferred to and registered in the names of the current Appellants as the trustees of Nkuthi Kaumo Impuza self-help group; the suit property was subsequently sub-divided; the subdivision birthed various titles, including LR No. Nkuene /L-Mikumbune /856 – 864; the sub-divisions alarmed the deceased; the deceased contested the sale of the entire suit property; the deceased insisted that same only sold a ¼ of an acre of the suit property. 8. In addition, the deceased posited that: The sale agreement that was relied upon by the Appellants was fraudulent; the deceased had not sold the entire suit property; the suit property was transferred to the Appellants on thrown away price; and the Appellants did not acquire any lawful rights to and in respect of the suit property. 9. The deceased, who was later on substituted by the current respondent, therefore sought various reliefs vide plaint dated the 24.04.1998. In particular, the deceased sought rectication of the register in respect of LR No. Nkuene /L-Mikumbune /840. 10. The Appellants [who were the Defendants in the lower court] duly entered appearance and led a statement of defence. The Appellants denied the claims by/ on behalf of the deceased [Plainti in the lower court]. Moreover, the Appellants asserted thus: The deceased duly entered into and executed the sale agreement; the sale agreement was in respect of the suit property; the deceased sold the entire of the suit property; the deceased duly executed the sale agreement; the deceased understood the terms of the sale agreement; and the deceased duly received and acknowledged the purchase price. 11. Additionally, it was contended that: The deceased also executed the transfer form in respect of the suit property; the transfer of the suit property to the Appellants was lawful; and the allegations of fraud, https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5649/eng@2026-09-17 2

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were an afterthought. To this end, the Appellants implored the lower court to dismiss the suit and to award costs to same. 12. The suit in the lower court was heard and determined vide judgment delivered on the 06.02.2014 by Hon. D O Onyango – Senior Principal Magistrate [now Hon. Justice D O Onyango- Judge]. The trial court found and held that the Plainti [now deceased] had proved his case to the requisite standard and thus returned a nding that the Plainti was entitled to the reliefs sought vide plaint dated the 24.04.1998. 13. In particular, the trial court found that the Plainti [now deceased] had established the doctrine of non est factum, insofar as the execution of the sale agreement was concerned. Furthermore, the trial court opined that there were several discrepancies as pertains to the sale transaction and which discrepancies, were not explained and thus leading to the logical presumption that the Appellants had taken advantage of the plaintis [sic] little education. 14. With the foregoing ndings, the trial court allowed the suit and decreed rectication of the register of the suit property. The trial court also awarded costs to the Plainti [now respondent]. 15. Dissatised, the Appellants approached this court vide memorandum of appeal dated the 07.08.2014. The memorandum of appeal was subsequently amended in terms of the amended memorandum of appeal dated the 04.05.2018; and wherein the Appellants have raised various grounds. 16. The grounds are: i. The learned trial magistrate erred in law and in fact by failing to properly evaluate the evidence on record. ii. The learned trial magistrate erred in law and in fact when he purported to treat allegations of the Respondent as if the same were undisputed or proved facts. iii. The learned trial magistrate erred in law and fact when the he failed to properly analyze and evaluate the points of law raised by the Appellants which caused a miscarriage of justice on the part of the appellant. iv. The learned trial magistrate erred in law and in fact in failing to consider that it would be unconscionable to allow the Respondent to keep the Appellants money and get back all his land when the Respondent had admitted the receipt of the purchase price. v. The learned trial magistrate misdirected himself when he failed to properly consider and dispassionately evaluate the admissions of the respondents and instead relied on a few discrepancies to nd the Respondent had proved his case. vi. The learned trial magistrate did not properly analyze the doctrine of “non est factum”. vii. The learned trial magistrate erred in law and fact in failing to nd that the cancellation of all titles in the suit land would aect parties that were not sued in the primary suit. 17. The subject appeal was previously heard and determined by Hon. Justice Mwangi Njoroge – Judge, who dismissed the appeal for want of prosecution, on the basis that the Appellants had not led their written submissions. Thereafter, the Appellants mounted an application for review of the impugned judgment. The application for review was heard and determined by Lady Justice Mbugua vide ruling delivered on the 17.02.2021. 18. The ruling of Lady Justice Mbugua, under referenced was the subject of an appeal before the Court of Appeal, vide Nyeri Court of Appeal Civil Appeal number E034 of 2021. Suce it to state that said https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5649/eng@2026-09-17 3

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appeal was heard and disposed of vide judgment delivered on the 30.05.2025. The appeal was allowed and the subject appeal [the current one], was remitted for fresh hearing [sic] by the High Court. 19. When the appeal came up for directions on the 28.07.2026, this court drew the attention of the respective counsel, of the fact that the Court of Appeal had [sic] remitted the appeal for hearing before the high court; and not the Environment and Land Court. Nevertheless, and bearing in mind the provisions of Article 162 [2] [b] of the Constitution, 2010, the advocates agreed that the matter belongs to the Environment and Land Court and the reference of the High Court, was a misnomer and inadvertent on the part of the Court of Appeal. 20. Further, and in addition, the advocates for the parties intimated to the court that the same had led their submissions, which formed part of the record of the court. To this end, the advocates for the parties sought to rely on the submissions, which had previously been led. The parties invited the court to take cognizance of the said submissions and to craft the judgment. 21. The appellant led written submissions dated the 02.10.2017 and wherein same have highlighted seven key issues. The issues are: The learned trial magistrate misapprehended and misinterpreted the law pertaining to construction of contracts; the learned magistrate imported and applied extraneous reasons in vitiating the sale agreement; the learned trial magistrate shifted the burden of proof to the Appellants [defendants]; the learned trial magistrate misapprehended and misapplied the law as pertains to fraud; the learned magistrate misapprehended the doctrine of departure and went outside the scope of the pleadings; the judgment of the learned trial magistrate is predicated on assumptions and not the evidence on record; and the judgment of the learned trial magistrate has occasioned gross injustice and unjust enrichment. 22. Additionally, the learned counsel for the appellants has also highlighted the issue/question of the jurisdiction of the chief magistrate’s court, in entertaining and adjudicating upon the suit. In particular, it was contended that the suit touched on and concerned land and thus the dispute ought to have been heard by the environment and land court. To this end, counsel has referenced the provisions of Article 162 [2] [b] of the Constitution, 2010. 23. According to learned counsel for the appellants, the Respondent did not prove his case before the lower court. Pertinently, it was contended that the Respondent did not prove the plea of fraud, to the requisite standards and thus the impugned judgment, ought to be set aside. In this regard, learned counsel for the Appellants has implored the court to nd and hold that the subject appeal is meritorious; set aside the impugned judgment; and dismiss the respondent’s suit. The Appellants have also sought for costs. 24. The Respondent led written submissions dated the 03.09.2018 and wherein same has highlighted and canvassed ve key issues. The issues are: The Respondent duly established the plea of non est factum, as pertains to the impugned sale agreement; the Respondent proved the plea of fraud to the requisite standard; the evidence by the Respondent was not controverted; the trial court did not shift the burden of proof to the appellants; and there was no miscarriage of justice, or at all. 25. In addition, and to expound on the plea of non est factum, the Respondent cited and referenced various decisions. The decisions are: Marvco Colour Research Limited versus Harris [1982] 2 SCR 774; Levison versus Patent Steam Carpet Cleaning Company Limited [1977] 3 ALL ER 498; and Gallie versus Lee and another [1969] 1 ALL ER 1062; and Halsbury’s Laws of England, respectively. 26. Premised on the foregoing submissions, learned counsel for the Respondent has invited the court to nd and hold that the Respondent duly proved her case in the lower court. To this end, the court https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5649/eng@2026-09-17 4

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has been implored to nd that the subject appeal is devoid of merits; dismiss same; and to arm the judgment of the lower court. The Respondent has also sought for costs of the appeal. 27. Having reviewed the record of appeal; the pleadings that were led by the respective parties; the impugned judgment; the written submissions led by on behalf of the parties; and bearing in mind the relevant legal principles, three [3] key issues emerge for determination. The issues are: Whether the Respondent duly established her case to the requisite standard or otherwise; whether the doctrine of non est factum [it is not my deed] was correctly applied and proved by the Respondent; and whether the judgment of the learned trial magistrate, is coloured with errors of omission and commission and if so, whether the errors vitiate the impugned judgment. 28. Before venturing to address the thematic issues that have been isolated in the preceding paragraph, it is important to highlight that what is before me is a rst Appeal. By virtue of being a rst Appeal, this court is mandated to undertake a fresh and exhaustive scrutiny, review, and analysis of the totality of evidence tendered before the court of rst instance. The court is obligated to review the evidence and determine whether the ndings and conclusion[s] arrived at by the trial magistrate, accord with the evidence on record and the legal principles. 29. The court is seized of the authority and jurisdiction to arrive at an independent conclusion and to depart from the ndings of the trial court. However, it is established that the appellate court can only depart from the factual nding and conclusion of the trial court where it is demonstrated; that the conclusions were based on no evidence; the conclusions are perverse to the evidence on record; the ndings are based on misapprehension of the evidence and law; and that there is a demonstrable error of principle, which vitiates the ndings of the Trial Court. 30. Suce it to state that, barring the foregoing, the rst appellate court is enjoined to defer to the ndings and conclusions of the trial court. Notably, the jurisdiction of the rst appellate court to interfere with the ndings/conclusions of the trial court is circumscribed. The jurisdiction is not at large. It is a jurisdiction that cannot be exercised for the mere asking. In addition, it cannot be invoked and exercised at will. Section 78 of the Civil Procedure Act, Chapter 21 Laws of Kenya, regulates its exercise. 31. The jurisdictional remit of the rst appellate court, while undertaking its mandate as pertains to the rst Appeal, has been the subject of various court decisions. In the case of Odera t/a AJ Odera & Associates v Machira t/a Machira & Co Advocates [2013] KECA 208 (KLR). The Court of Appeal expounded on the scope of the jurisdiction. The court stated thus: “ 46. We also wish to be guided by the reasoning of this court in the case of Mwana Sokoni versus Kenya Business Limited (1985) KLR 931 page 934,934 thus:-“Although this court on Appeal will not lightly dier from the Judge at rst instance on a nding of fact, it is undeniable that we have the power to examine and re-evaluate the evidence on a rst Appeal if this should become necessary. As was said by the House of Lords in Sottos Shipping versus Sauviet Sohold, The Times, March 16, 1983.“It is uncertain whether their Lordships should have reached the same conclusion on the evidence, but it is important that, sitting in the appellate court they should be over mindful of the advantages enjoyed of the trial Judge who saw and heard the witnesses and was in a comparably better position than the Court of Appeal to assess the signicance of what was said, how it was said, and equally impotent what was not said” Again in Peters versus Sunday Post Limited (1958) EA424, a decision of the Court of Appeal for Eastern Africa, Sir Kenneth O’ Conner, P said at page 429: “It is a strong thing for an appellate court to dier from the nding https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5649/eng@2026-09-17 5

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on a question of fact of the Judge who tried the case and who has had the advantage of seeing and hearing and the witnesses.” 32. Recently, the Court of Appeal revisited the jurisdictional remit in the case of Kenya Urban Roads Authority & another v Belgo Holdings Limited [2025] KECA 764 (KLR). The Court highlighted the principle in the following manner: “ We have considered the Appeal, and this being a rst Appeal, we are under a duty to subject the entire evidence and the judgment to a fresh and exhaustive examination with a view to reaching our own conclusions in the matter. In carrying out this duty, we have to remember that we had no opportunity of seeing and hearing the witnesses who testied during the trial and to make an allowance for the same. We have also to remember that it is a big thing to overturn the ndings of a trial court which has had the singular opportunity of reaching its conclusions based on a combination of the evidence adduced and observation by the court of the demeanour of witnesses. In a nutshell, a rst appellate court must of necessity proceed with caution in deciding whether or not to interfere with the ndings of a trial court, but of course, where such ndings are not supported by the evidence on record or where they are founded on a misapprehension of the law, the axe must fall on the impugned judgment. This position is anchored in section 78 of the Civil Procedure Act, which requires a rst appellate court to re-evaluate, reassess, and reanalyse the extracts of the record and draw its own conclusions. These provisions have been underscored in numerous decisions of the Superior Courts among them Peters v Sunday Post Limited [1958] EA 424, where the predecessor to this Court expressed itself as follows: “Apart from the classes of case in which the powers of the Court of Appeal are limited to deciding a question of law an appellate court has jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this really is a question of law), the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at on conicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. This is not to say that the Judge of rst instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a judge of rst instance, when estimating the value of verbal testimony, has the advantage (which is denied to the courts of Appeal) of having the witnesses before him and observing the manner in which their evidence is given… Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself, an appellate court which is disposed to come to a dierent conclusion on the printed evidence, should not do so unless it is satised that any advantage enjoyed by the trial Judge by reason of having seen and heard the witnesses, could not be sucient to explain or justify the trial Judge’s conclusion. The appellate court may take the view that, without having seen or heard the witnesses it is not in a position to come to any satisfactory conclusion on the printed evidence. The appellate court, either because the reasons given by the trial Judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satised that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court. It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question…It not https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5649/eng@2026-09-17 6

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infrequently happens that a decision either way may seem equally open, and when this is so, then the decision of the trial Judge who has enjoyed the advantages not available to the appellate court becomes of paramount importance and ought not be disturbed. This is not an abrogation of the powers of a Court of Appeal on questions of fact. The judgment of the trial Judge on the facts may be demonstrated on the printed evidence to be aected by material inconsistencies and inaccuracies, or he may be shown to have failed to appreciate the weight or bearing of circumstances admitted or proved or otherwise to have gone plainly wrong.” [see also the decision in the case of County Government of Bungoma & 2 others v JOO & 2 others [2024] KECA 1377 (KLR) and County Government of Narok v Ntutu & 2 others [2026] KECA 880 (KLR) – [paragraphs 56 and 57 thereof]” 33. Back to the issues for determination. I beg to start with the rst issue, namely; whether the Respondent [who was the Plainti in the Lower Court] duly proved her case. It is common ground that the burden of proof, rested with the respondent. The Respondent was obligated to tender and adduce before the trial court, cogent and plausible evidence, to vindicate the assertions contained in the body of the plaint. In respect of the instant matter, there is no gainsaying that the Respondent’s case was contained in the plaint dated the 24.04.1998. Moreover, it suces to observe that the plaint under reference, was never amended. See paragraph 2 – page 4 of 7 of the impugned judgment. 34. It is equally important to underscore that the evidence to be adduced, must be evidence that propagate or align with the pleadings on record. For good measure, a party cannot seek to adduce evidence, which is at variance with the pleadings. Moreover, it suces to reiterate that parties, the Respondent not excepted, are bound by their pleadings. This is the import and tenor of Order 2 Rule 6 of the Civil Procedure Rules, 2010. 35. Did the Respondent prove her case, which was primarily, based on fraud? To begin with, it is common ground that whosoever seeks to propagate the plea of fraud, must not only plead, but particularize fraud. It is only after fraud has been pleaded and particularized, that the party in question, is called upon to bring forth evidence to prove same. Furthermore, it is important to highlight that proof of fraud must be discharged to the intermediate standard. 36. In the case of Kiarie & 2 others v Magera [2018] KECA 467 (KLR), the Court of Appeal highlighted the legal position attendant to the plea of fraud. The court stated thus: The law is clear and we take it from the case of Vijay Morjaria vs Nansingh Madhusingh Darbar & Another [2000] eKLR, where Tunoi, JA. (as he then was) stated as follows:“It is well established that fraud must be specically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must, of course, be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.” [Emphasis added].The same procedure goes for allegations of misrepresentation and illegality. See Order 2 Rule 4 of the Civil Procedure Rules. As regards the standard of proof, this Court in the case of Kinyanjui Kamau vs George Kamau [2015] eKLR expressed itself as follows;-“…It is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo vs Ndolo (2008) 1 KLR (G & F) 742 wherein the Court stated that: “...We start by saying that it was the Respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him. Since the Respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities; but the burden of proof on the Respondent was certainly not one https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5649/eng@2026-09-17 7

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beyond a reasonable doubt as in criminal cases...”...In cases where fraud is alleged, it is not enough to simply infer fraud from the facts." 37. It is the Respondent who had contended that same had intended to sell only ¼ of an acre and not the entire of the suit property. The Respondent further asserted that despite the intention to sell only a ¼ of an acre, the Appellants herein proceeded to and transferred the entire of the suit property into their names. It was contended that the transfer of the entire suit property was predicated on fraud. 38. In addition, the Respondent had posited that the Appellants wrote an agreement for the whole of the suit property, rather than for a ¼ of an acre, which the Respondent had sought to sell. Moreover, it was posited that the transfer of the entire suit property, to and in favour of the appellants, was undertaken [sic] on the basis of throw away price. 39. It is foregoing assertions, which underpin the contention of fraud. However, it is common ground that the Respondent tendered and produced before the court [the trial court] a copy of the sale agreement. The sale agreement was marked as exhibit P1. The sale agreement contained the details of the Respondent [now deceased]. The details included: The name of the respondent; the identity card number of the respondent; the plot number of the suit property; and the respondent’s address. 40. Moreover, it was conceded that the Respondent actually signed the sale agreement. For good measure, there is no evidence that the respondent’s signature was forged, procured by duress, or under threat. No such particulars, have been pleaded in the body of the plaint dated the 24.04.1998. Besides, no such evidence was tendered. 41. Additionally, the Respondent herein did not advert to or tender evidence to show that the contents of the sale agreement, were not read to him. The Respondent has also not tendered evidence as pertains to [sic] his level of education or literacy. In any event, it is not lost on me that such evidence, if at all, could only be tendered in furtherance of proper pleadings and particulars. 42. In my humble view, the Respondent did not only fail to properly plead and particularize fraud, but same also failed to tender cogent and credible evidence, to vindicate fraud. It suces to underscore, that fraud must not be left to inference. Similarly, fraud cannot be left to speculation or assumption, let alone, logical inference or hypothesis, in the manner that the trial court proceeded. [See the dictum in Vijay Morjaria vs Nansingh Madhusingh Darbar & Another [2000] eKLR,]. 43. Furthermore, evidence was tendered that during the hearing, the Respondent admitted that it is him [the deceased] who supplied the various details to the 1st appellant [1st defendant in the lower court] and which details, formed the basis of the sale agreement. The bit of evidence which forms part of the record, was not controverted by the respondent. It is apparent that the Respondent [now deceased], was knowledgeable of the contents of the sale agreement. 44. In addition, it is worthy to recall that evidence was tendered that the Respondent [now deceased] also signed the transfer form. The transfer form, is indicated to have been attested by a magistrate at Nkubu Law Courts. The transfer form concerned the entirety of the suit property. 45. I have not discerned any evidence by and on behalf of the respondent, denying the execution of the transfer form. It is important to state that the attestation of the transfer form, by the magistrate, denotes that the contents of the instruments, [transfer form], were duly explained to the transferor [the respondent]. 46. If anything, the Respondent would equally have attacked the authenticity of the transfer form. However, there is no challenge at all on the transfer form, which is a crucial, nay, critical instrument https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5649/eng@2026-09-17 8

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of conveyance. In the absence of any challenge to the transfer form and the signature thereon, the presumption of regularity, becomes relevant and applicable. 47. In the case of Chief Land Registrar & 5 others v Koech & 3 others [2018] KECA 27 (KLR), the Court of Appeal illuminated the application of the presumption of the regularity. 48. The court stated as hereunder: “ There is a presumption that all acts done by a public ocial has lawfully been done and that all procedures have been duly followed. The onus is on the 1st and 4th respondents to prove otherwise. They have failed to do this. A bare allegation that a lawful procedure was not followed is not proof of the allegation” 49. Did the Respondent prove her case? I reiterate that the burden of proof fell on the respondent. The standard of proof is settled. In the case of Moi v Muriithi & another [2014] KECA 642 (KLR), the Court of Appeal highlighted the obtaining jurisprudence thus: “ It is a rmly settled procedure that even where a defendant has not denied the claim by ling of defence or an adavit or even where the defendant did not appear, formal proof proceedings are conducted. The claimant lays on the table evidence of facts contended against the defendant. And the trial court has a duty to examine that evidence to satisfy itself that indeed the claim has been proved. If the evidence falls short of the required standard of proof, the claim is and must be dismissed. The standard of proof in a civil case, on a balance of probabilities, does not change even in the absence of a rebuttal by the other side.” 50. I am afraid that the Respondent did not prove the plea of fraud to the requisite standard. It was therefore not open for the trial court, to proceed on the basis of assumptions and hypothesis, in an endeavor to invalidate the impugned transactions [sic] on the basis of fraud. 51. Before concluding on this issue, I beg to state that the claimant, the Respondent not excepted, can only succeed on the strength of his /her case, and not on the weakness of the defence. 52. Simply put, before a claimant can ride on the discrepancies [if any] in the case of the adverse party, the claimant must discharge the evidential burden. Evidence must be tendered. The evidence tendered must be credible. 53. In the case of Caroget Investment Limited v Aster Holdings Limited & 4 others [2019] KECA 79 (KLR), the Court of Appeal stated as hereunder: “ Put dierently, a claimant will succeed on the strength of his own case and not on the weakness of the opponent’s case, save to add that the standard of proof in a case for declaration of title is on a preponderance of evidence.” [emphasis supplied]. 54. I now wish to turn to the second issue. The second issue relates to the application and relevance of the doctrine of non est factum [it is not my deed]. The Respondent sought to impugn the sale agreement and the consequential transaction, attendant to the suit property, on the basis of doctrine of non est factum. 55. What I hear the Respondent to be contending is that though same signed and executed the sale agreement, the execution was [sic] under mistake. Put dierently, that the Respondent did not mean/ intend to sell the entire suit property and thus there is a mistake or error, which negates the impugned transaction. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5649/eng@2026-09-17 9

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56. Be that as it may, it is important to highlight that the plea/doctrine of non est factum, [it is not my deed], which has been relied upon, was neither pleaded nor particularized in the body of the plaint. In addition, it suces to underscore that the doctrine was only introduced vide the written submissions which were led by the respondent’s counsel. 57. The question that does arise is whether the doctrine of non est factum [it is not my deed], which must be substantiated on the basis of evidence, can be brought into play, in the absence of pleadings. It is imperative to underscore, that the foundation of the doctrine in question, rests on mistake; deceit; misrepresentation; error; or inducement. Simply put, the doctrine is underpinned by the contention that though the claimants signed the impugned document, the mind of the signor did not accompany the signature. 58. The doctrine in question is highlighted in Chitty on Contracts, 25th Edition, volume 1, paragraph 341. 59. It is stated thus: “ The general rule is that a man is estopped by his deed, i.e a party of full age and understanding is normally bound by his signature to a document whether he reads or understands it or not. If, however, a party has been misread into executing a deed or signing a document essentially dierent from that which he intended to execute or sign, he can plead non est factum in action against him. the deed or writing is completely void in whosoever’s hands it may come. As Byles J, said in foster versus Mackinnon [1869] LR 4 CP 704, 711, It is invalid not merely on the ground of fraud, where fraud exist but on the ground that the mind of the signor did not accompany the signature; in other words, that he never intended to sign, and therefore in contemplation of law never did sign, the contract to which his name is appended.” 60. What is apparent from the except above is thus: the doctrine must be pleaded; the pleader must provide/ supply the particulars being relied upon; the pleader must demonstrate that he/she acted with reasonable care; and the pleader must tender plausible evidence; and the burden of proof rests on the pleader. 61. In the case of Saunders Versus Angliq Building Society [1970] 3 ALL ER 961, the court stated as hereunder: “ The burden of establishing a plea of non est factum falls on the party who seeks to dis own the document and the party must show that in signing the document, he acted with reasonable care.” 62. To my mind, the Respondent could not rely on and propagate the doctrine of non est factum [it is not my deed], in the absence of the requisite pleadings. There is no gainsaying that parties are bound by their pleadings. In addition, the courts of law are also bound. This position is trite and established. [See the holding in the case of Independent Electoral and Boundaries Commission & another v Mule & 3 others [2014] KECA 890 (KLR)]. 63. Finally, I wish to reference the provisions of Order 2 Rule 10 of the Civil Procedure Rules, 2010. The rules states thus: 10. Particulars of pleading [Order 2, rule 10] (1) Subject to subrule 2 – https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5649/eng@2026-09-17 10

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Every pleading shall contain the necessary particulars of any claim, defence or other matter pleaded including, without prejudice to the generality of the foregoing— (a) particulars of any misrepresentation, fraud, breach of trust, wilful default or undue inuence on which the party pleading relies; and (b) where a party pleading alleges any condition of the mind of any person, whether any disorder or disability of mind or any malice, fraudulent intention or other condition of mind except knowledge, particulars of the facts on which the party relies. 64. My answer to issue number two is three-fold. Firstly, the plea of non est factum needed to have been pleaded. The same was not pleaded. The Respondent could not invoke and rely on the said doctrine. In this regard, the reliance on the said doctrine was in vacuum. 65. Secondly, the submissions by the respondent, which brought forth the doctrine /plea of non est factum [it is not my deed], could not substitute the pleadings. In addition, submissions can also not take the place of evidence. [See Moi v Muriithi & another [2014] KECA 642 (KLR),]. 66. Thirdly, the Respondent did not prove the requisite elements/ingredients, that underpin the plea of non est factum. The burden of proof rested on the Respondent. 67. The last issue for consideration relates to whether the impugned judgment was coloured with errors of omissions and commissions and if so, whether such errors, vitiated the judgment. 68. The starting point, is to the eect that the decisions of a court of law, the trial court not excepted, must be based on the evidence on record. A court of law cannot render a judgment, based on assumptions; hypothesis or logical inferences, which are at variance with the evidence. 69. Despite the trite position, the judgment of the trial court is based more on assumptions and inferences and not the evidence. Firstly, the trial court, observed that there were various disparities and discrepancies in the whole transaction and [sic] the same were indicative that the Defendants took advantage of the plaintis ‘little education’. There is no evidence that was tendered by and on behalf of the Plainti [now deceased], as pertains to his level of education or literacy. Moreover, the particulars of fraud, did not include the aspect of the plainti’s illiteracy; or low level of education. The question is where did the learned trial magistrate gather such kind of information? 70. Secondly, the learned trial magistrate also found and held that the Plainti [now deceased] did not attend the Land Control Board. The learned trial magistrate referenced and relied on the evidence of PW2. However, the learned trial magistrate failed to interrogate the veracity of the evidence of PW2. Various issues arise: Was PW2 a member of the Land Control Board; could the evidence of PW2 dislodge the consent; and whether the parole evidence of PW2 accorded with Section 97 of the Evidence Act, Chapter 80 Laws of Kenya. 71. The next aspect relates on the suspicion that was relied on to invalidate the evidence of DW1. The learned trial magistrate stated thus: “ The question therefore is whether the Plaintihas proved the particulars of fraud against the defendants. Having examined the entire evidence on record and taking into account that I did not take the evidence of PW1, DW1 and DW2, I nd the conduct of the 1st defendant ‘very suspect’.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5649/eng@2026-09-17 11

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72. With respect, suspicion, no matter how strong, can not take the place of evidence. A court of law cannot make ndings and arrive at conclusions, on the basis of [sic] suspicion. Such an endeavour constitute[s] an error. 73. Additionally, the learned trial magistrate appears to have descended into the arena of controversy. Besides, the learned trial magistrate seems to have ignored the trite position that consideration, need not be enough. It suces that the consideration is sucient. In this case, there can be no question on the value of the suit property, that was agreed upon by the parties. I dare say that the parties were dealing at arms – length. 74. To my mind, the statement of the trial court to the eect that the evidence of the Plainti and key witnesses on the value of the parcel has remained uncontroverted, constitutes another error. Moreover, the subsequent evidence, impugning the value of the suit property, could not vitiate the consideration contained in the sale agreement. 75. Lastly, I wish to point out that the judgement of the learned trial magistrate, heavily relies on the doctrine of non est factum. Indeed, the said doctrine forms the crux of the judgment. However, what escaped the mind of the trial court, is that the impugned doctrine, had not been pleaded. It therefore, could not have been canvassed before the court, let alone, relied upon to enter judgment in favour of the respondent. Conclusion 76. The Appellants were obligated to demonstrate that the judgment of the trial court, was replete with errors. In addition, the Appellants were also called upon to demonstrate failure [if any] of the trial court to evaluate the evidence objectively. 77. In the course of judgment, I have enumerated aspects of the judgment that do not, in my humble view, meet the threshold of the law. Notably, the plea of fraud, was not proven. Moreover, the impugned judgment seems to negate the import of Section 97 of the Evidence Act Chapter 80 Laws of Kenya. 78. There is also the question of the sanctity of the contract. Can it be assailed for the mere asking? These are critical questions that needed to have been suitably addressed and resolved. Sadly, the impugned judgment did not. 79. Flowing from the foregoing, I am persuaded that the Appellants have established a basis to warrant the impeachment of the impugned judgment. Crucially, I am convinced that the threshold espoused in the case of Mwanasokoni versus Kenya Bus Services Limited [1985] eKLR, has been met. 80. Consequently, I nd that the appeal is meritorious. Final orders: 81. In the upshot, the nal orders that commend themselves to the court are: i. The Appeal be and is hereby Allowed. ii. The Judgment of the Learned Trial Magistrate dated the 06.02.2014, and the consequential decree arising therefrom, be and are hereby set aside. iii. In lieu thereof, the Respondent’s Suit vide Meru CMCC Number 358 of 1998 be and is hereby Dismissed. iv. Costs of the Appeal be and are hereby awarded to the Appellants. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5649/eng@2026-09-17 12

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82. v. The Appellants shall also have costs of the suit in the Lower Court. vi. The costs in terms of clause [iv] and [v] shall be agreed upon and in default be taxed in the conventional manner. It is so ordered. DATED, SIGNED AND DELIVERED AT MERU ON THIS 17TH DAY OF SEPTEMBER, 2026 OGUTTU MBOYA; FCIArb; CPM [MTI-EA]. JUDGE. In the presence of: Court Assistant: Zakayo N/a for Appellants. N/a for the Respondent. [ The parties were knowledgeable of the Date]. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5649/eng@2026-09-17 13

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