Fred Genga Atieno v Nancy Adhiambo Oswera & Owuor Okoth Alex

4. She did not take him at his word. She approached the 2 nd Respondent who confirmed the sale to the Appellant. He undertook to transfer the land to her upon request. He handed over his identity card, his Kenya Revenue Authority (KRA) PIN certificate and his photograph for that very purpose. 5. Reassured, the 1st Respondent executed a sale agreement with the Appellant on 5 th February, 2021. The consideration was Kshs. 120,000/-. She paid it in full, partly in cash and partly through M-Pesa. She then entered the land and planted her crops. 6. The transfer was never done. The 2 nd Respondent declined to attend the Land Control Board. He later took possession of the parcel, interfered with the fence and destroyed the crops, asserting that he had never sold the land at all. 7. Left with neither the land nor her money, the 1 st Respondent turned to the court. She sought specific performance of the agreement dated 5th February, 2021. In the alternative, she sought a refund of Kshs. 120,000/- together with interest and costs at court rates. 8. The Appellant filed a defence and denied the claim in its entirety. The 2nd Respondent did nothing: he neither entered Appearance nor filed a Defence, and he never testified. 9. At the trial, the Appellant denied selling any land to the 1 st Respondent. He denied executing the agreement, saying the fingerprints on it were a forgery. Yet in the same breath he admitted to receiving the Kshs. 120,000/-. That sum, he said, was repayment of a loan of Kshs. 100,000/- he had advanced to the 1st Respondent's mother, repayable with JUDGMEN ELCA NO. E032 OF 2022 2

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interest of Kshs. 20,000/. He never produced evidence of the advancement of the loan. 10.The Learned trial Magistrate declined to order specific performance, holding that there was no binding agreement between the 1st Respondent and the 2nd Respondent. He, however, held the Appellant to his admission. He found the alleged loan unproved and entered judgment against the Appellant for a refund of Kshs. 120,000/- together with costs and interest at court rates. He granted a thirty (30) day stay of execution. 11.The Appellant was aggrieved. Hence this appeal. The Memorandum of Appeal 12.The Appellant, dissatisfied with the judgment, filed a Memorandum of Appeal dated 20 th December, 2022 and filed on 22nd December, 2022. In it he raised eight grounds, which may be summarized as follows. 13.He argued, first, that the learned trial magistrate erred in fact and in law in finding that the 1 st Respondent paid him Kshs. 120,000/- as the agreed consideration for the purchase of land parcel No. Nyatike/Kolal/426, when there was no lawful basis for such a finding. 14.Secondly, he argued that the learned trial magistrate failed to give due allowance to the proven fact that he was not the proprietor of the suit parcel, and that he, accordingly, lacked the capacity to dispose of the whole or any portion of it to the 1st Respondent. 15.Thirdly, he argued that having found that an agreement for sale had been made on 5th February, 2021, the learned trial magistrate ought to have gone further to hold that the JUDGMEN ELCA NO. E032 OF 2022 3

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agreement was an unlawful contract, in furtherance of which no court of law should grant relief. 16.Fourthly, he argued that the learned trial magistrate shifted the burden of proof onto him without any basis for doing so. 17.Fifthly, he argued that the learned trial magistrate misapprehended the issues that were before him for determination, the evidence led on those issues, and the law. 18.Sixthly and seventhly, he took issue with the reliefs. He argued that the learned trial magistrate erred in awarding the 1st Respondent interest in the manner he did, and in awarding her the costs of the suit at the trial. 19.Eighthly and finally, he argued that the learned trial magistrate decided the suit and granted the impugned orders against the weight of the evidence led at the trial, and contrary to known legal principles. 20.On those grounds he prayed that this appeal be allowed, that the 1st Respondent's suit against him before the subordinate court be dismissed, and that he be awarded the costs both of that suit and of this appeal. 21.The Record of Appeal was eventually filed on 26 th March, 2025. The appeal proceeded by way of written submissions. At the onset I would give a summary of the Respondent’s case as put forth through the submissions. The Respondents’ Case 22.The 1st Respondent opposed the appeal in its entirety. JUDGMEN ELCA NO. E032 OF 2022 4

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23.Her position was that the appeal was misconceived. She maintained that she performed her part of the bargain by paying the full consideration of Kshs. 120,000/-. She relied on the agreement dated 5th February, 2021 and on M-Pesa transaction records appearing at pages 42 and 43 of the record of appeal, which showed Kshs. 110,000/- moving at the time of execution of the agreement. 24.She maintained that the receipt of the money was never in dispute. What the Appellant offered in answer to the allegation of the money being for the sale transaction was a claim of a loan advanced to her mother. That claim, she said, was bare and unsupported. 25.She further contended that the decree appealed from was not a decree for specific performance. It was a decree for refund of money received. Its foundation was proof of receipt of the money, not the validity of the agreement. She urged that the Appellant had no justification for the appellant retaining the money and that his retention amounted to unjust enrichment. 26.On interest and costs, she contended that the trial court exercised a discretion vested in it by statute, and that it did so judiciously. 27.The 2nd Respondent did not participate in the proceedings before the subordinate court. He did not participate in this appeal either. He filed no submissions. SUBMISSIONS 28.The appeal was canvassed by way of written submissions. The appellant’s submissions JUDGMEN ELCA NO. E032 OF 2022 5

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29.There are no submissions on record for the Appellant. The record shows that on 9th July, 2026, when the matter came up and a judgment date was taken, learned counsel for the Appellant informed the court that the Appellant’s submissions were ready, they were dated 5 th May, 2026, and they would be filed on that very day. On that representation the parties proceeded to take a date for judgment. To date the appellant did not file any submissions as requested and granted leave. The 1st Respondent’s submissions 30.The 1st Respondent’s submissions were dated 20 th January, 2026. e framed three issues. The first one was whether the trial magistrate erred in holding that the Appellant had been paid Kshs. 120,000/- as the purchase price for Nyatike/Kolal/426. Learned Counsel submitted that upon execution of the agreement dated 5 th February, 2021, the 1st Respondent performed her part by paying that sum. He pointed to the M-Pesa transaction details at pages 42 and 43 of the record. He submitted that the appellant’s counterclaim of a loan of Kshs. 100,000/- payable with interest of Kshs. 20,000/- was fanciful. He relied on sections 107(1) and 108 of the Evidence Act, Chapter 80 Laws of Kenya, and submitted that the Appellant bore the burden of proving either that he lent the money or that the agreement was a forgery, and that he discharged neither. 31.The second was whether the Learned trial magistrate failed to determine the validity of the agreement dated 5 th February, 2021 and proceeded to grant relief upon it. Learned Counsel conceded that capacity was critical to the validity of a contract. He submitted, however, that the refund did not require enforcement of the agreement or JUDGMEN ELCA NO. E032 OF 2022 6

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transfer of the land. It rested upon the Court's finding that the Appellant had received the money and had failed to establish any lawful basis for retaining it. He emphasised that the trial court granted no order against the 2 nd Respondent and decreed a refund, not specific performance. He submitted that the Appellant had no justification for retaining the money. 32.In support he cited Onyambu & another v Nyakina (Civil Appeal E024 of 2025) [2025] KEHC 16843 (KLR), where the court held at paragraph 35 that money advanced was money had and received, that illegal interest levies could not bar recovery of the money, and that a court cannot allow a party to unjustly enrich himself. He also cited Stephen Karanja Kibuku v Safaricom Limited [2018] KEHC 1367 (KLR), where Mulwa, J. set out the three elements of unjust enrichment. That a party had been enriched by the receipt of a benefit; that he had been so enriched at the expense of the giver; and that it would be unjust to allow him to retain the benefit. 33.The third was whether the trial magistrate exercised his discretion on costs and interest judiciously. On costs, counsel relied on section 27(1) of the Civil Procedure Act and on SUPERMARINE HANDLING SERVICES LTD v KENYA REVENUE AUTHORITY [2010] KECA 373 (KLR), for the proposition that costs follow the event and that an appellate court will not interfere with the trial court’s discretion on costs unless that discretion was exercised injudiciously or on wrong principles. He also relied on Farah Awad Gullet v CMC Motors Group Limited [2018] KECA 158 (KLR), on the factors relevant to interference with an award of costs, including the conduct of the parties and the matters which triggered the litigation. JUDGMEN ELCA NO. E032 OF 2022 7

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34.On interest, counsel relied on section 26(1) of the Civil Procedure Act and on Diamond Trust Bank Kenya Ltd v Said Hamad Shamisi & 2 others [2015] KECA 717 (KLR), as cited in Elizabeth Kihanya (suing as representative of the estate of John Kihanya Ndiruka) v Geoffrey Kariuki Kamau [2017] KEHC 5800 (KLR), for the rationale that interest is awarded because the successful party was deprived of the use of his money by reason of the wrong of the judgment debtor. 35.He urged that the appeal was entirely lacking in merit and that it be dismissed with costs. Issues for Determination 36.Having considered the record, the Memorandum of Appeal and the submissions on record, and the law. The following issues arise for determination: a) What the duty of this court is on a first appeal b) Whether the appellant received Kshs. 120,000/= from the 1st Respondent, and on what account. c) Whether the Appellant discharged the burden of proof on his claim that the sum paid was for a loan and not the agreement in issue, and whether the trial court shifted the burden of proof. d) Whether the invalidity of the agreement of sale barred an order for refund. e) Whether the trial court exercised its discretion on interest and costs judiciously. f) What orders should issue, and who bears the costs. ANALYSIS AND DETERMINATION JUDGMEN ELCA NO. E032 OF 2022 8

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37.I now set to determine the issues sequentially, beginning with the duty of this court at this stage. a) What is the duty of this court is on a first appeal 38.This is a first appeal. By section 78 of the Civil Procedure Act, this Court is required to reconsider the case, reevaluate the evidence and draw its own conclusions, while bearing in mind that it did not see or hear the witnesses who testified before the trial court. The duty of a first appellate court is therefore to conduct a fresh and independent evaluation of the evidence, subject to due allowance being made for the advantage enjoyed by the trial court in seeing and hearing the witnesses. 39.In Selle & another v Associated Motor Boat Company Ltd & others [1968] EA 123, the court held that; “An appeal to this court from a trial by the High Court is by way of a retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this court is not bound to follow the trial judge’s findings of fact if it appears that either he clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence on the case generally. (Abdul Hameed Saif –Vs- Ali Mohamed Sholani (1955) 22 EACA 270)” JUDGMEN ELCA NO. E032 OF 2022 9

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40.In Lmk Investment Limited & another v Oyopudo & 2 others (Environment and Land Appeal E016 of 2024) [2026] KEELC 388 (KLR) (29 January 2026) (Judgment), “Regarding where the determination is based on a meritorious determination of evidence and the law, the Court of Appeal has clearly restated the position that this court must evaluate the evidence afresh and draw its own conclusion even though it did not see the witnesses testify so as to form an opinion on their demeanor, unless specifically recorded.” 41.It was also restated in Abok James Odera t/a A.J. Odera & Associates v John Patrick Machira t/a Machira & Co Advocates [2013] eKLR as follows: “This being a first appeal, we are reminded of our primary role as a first appellate court, namely, to re-evaluate, re-assess and re-analyse the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons either way.” JUDGMEN ELCA NO. E032 OF 2022 10

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42.Additionally, the Court the of Appeal, in the case of Susan Munyi v Keshar Shiani (2013) eKLR stated as follows: “As a first appellate court our duty of course is to approach the whole of the evidence on record from a fresh perspective and with an open mind. We are to analyse, evaluate, assess, weigh, interrogate and scrutinize all of the evidence and arrive at our own independent conclusions” 43.Also, in Williamson Diamonds Ltd and another v Brown [1970] EA 1, it held that: “The appellate court when hearing an appeal by way of a retrial, is not bound necessarily to accept the findings of fact by the trial court below, but must reconsider the evidence and make its own evaluation and draw its own conclusion.” 44.Further, in PIL Kenya Limited v Oppong [2009] KLR 442, it was held that: “It is the duty…of a first appellate court to analyse and evaluate the evidence on record afresh and to reach its own independent decision, but always bearing in mind that the trial court had the advantage of hearing and seeking the witnesses and their demeanour and giving allowance for that”. JUDGMEN ELCA NO. E032 OF 2022 11

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45.Similarly, decision of Gitobu Imanyara & 2 others Vs Attorney General [2016] eKLR. It was held as follows; “An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect.” 46.Thus, the duty of the court is tempered by one caution: the trial court saw and heard the witnesses hence the demeanour of the witness(es) may have impressed on its decision in one way or other. 47.I have re-read the pleadings, the typed proceedings, the exhibits and the judgment of the trial court. I proceed on that basis. b) Whether the appellant received the Kshs. 120,000/from the 1st Respondent, and on what account. 48.This issue is short. The Respondent claimed, and gave evidence, that she paid the Appellant the sum of KShs 120,000= as consideration for the transaction of the sale of the suit land. The issue is whether this claim was valid and proved. It is answered by the Appellant himself. JUDGMEN ELCA NO. E032 OF 2022 12

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49.In his Defence and witness statement, the Appellant admitted receiving Kshs. 120,000/- from the 1st Respondent. His case, however, was that the money was received as repayment of a debt allegedly owed to him by the 1 st Respondent. 50.In the witness box, he maintained that he did not sell the land to the 1st Respondent, and that the document bearing his fingerprints was a forgery. At the same time, he expressly acknowledged having received Kshs. 120,000/from the 1st Respondent. The question is, what a coincidence that an alleged loan given much earlier, in 2016, could be repaid at the time the purported sale agreement was entered into, and in the exact sum as that indicated in the agreement! 51.That Appellant’s admission of receipt of the sum is unequivocal. It is recorded at page 10 of the typed proceedings. Under Section 17 of the Evidence Act, facts admitted need not be proved. The admission, therefore, establishes that the Appellant received Kshs. 120,000/from the 1st Respondent. It does not, however, determine the account on which that money was received. That remains the question for determination, later, even though this Court has wondered aloud, above, the great coincidence of these facts that are sought to be correlated. 52.The 1st Respondent’s account is anchored on a document contemporaneously signed with the payment she allegedly made. The agreement dated 5th February, 2021 recites a consideration of Kshs. 120,000/- for Nyatike/Kolal/426. It is corroborated by the M-Pesa records at pages 42 and 43 of the Record, which show Kshs. 110,000/- moving at or about the time of execution. It is further corroborated by the conduct of the parties. The 2 nd Respondent’s identity JUDGMEN ELCA NO. E032 OF 2022 13

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card, PIN certificate and photograph were, apparently, released to facilitate a transfer, and a signed application to the Land Control Board was produced as an exhibit. 53.The Appellant’s account (the existence of a loan), by contrast, was unsupported by any document or independent evidence. His explanation was that the Kshs. 120,000/- received represented repayment of an alleged debt, an issue which I consider separately below. 54.Ground 1 of the Memorandum of Appeal contends that the finding that the 1st Respondent paid the Appellant Kshs. 120,000/- was made “absent any lawful basis”. With respect, in my humble view, the finding had an evidential basis. The Appellant admitted receipt of the money, the written agreement identified the sum as the consideration for the suit property and the M-Pesa records provided corroboration of the transaction taking place for a slightly lesser sum. Whether the sum was for the failed agreement or the repayment of the alleged loan, then the payment had a basis and lawful. The appellant cannot abate and reprobate. He is estopped from denying the existence of a lawful basis. Thus, the learned trial magistrate cannot therefore be faulted for finding that the Appellant received Kshs. 120,000/- from the 1st Respondent. Ground 1, accordingly, fails. c) Whether the Appellant discharged the burden of proof on his claim that the KShs 120,000/= was for a loan and not the agreement in issue, and whether the trial court shifted the burden of proof. 55.The issue herein is that the sum received by the Appellant was not for the failed land transaction but something else. The Appellant’s answer to the receipt admitted was that the money was repayment of a loan of Kshs. 100,000/JUDGMEN ELCA NO. E032 OF 2022 14

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advanced to the 1st Respondent’s mother in 2016, repayable with interest of Kshs. 20,000/-. 56.That defence, in my humble view, collapsed at the trial for several reasons. First, there was no writing regarding such an advancement. The Appellant himself conceded that the lending agreement was not in writing. Then how could someone belief such an oral statement of fact? Furthermore, there neither proof of any disbursement of the sum nor any acknowledgment of a debt. Moreover, there was no demand letter issued by him for the payment of the alleged loan or debt. There was no record of any repayment schedule. All these allegations are contrary to Section 3(1) and (2) of the Law of Contract Act which requires that any suit brought regarding debts, among others, to relate to transactions, or be evidenced, in writing. Mutatis mutanda, no defence can stand without the transaction in writing. 57.Second, there was no supporting document of any kind. The Appellant testified that he had taken a loan from Mwalimu Sacco, part of which was lent out. No statement from the Sacco was produced, and even if it was, there should have been evidence that the money moved from the Sacco to the Respondent, and even if he received it he need to show documentary evidence that it, indeed, was paid over to the 1st Respondent’s mother and that it was the 1 st Respondent who was bound or obligated to pay the refund. No disbursement record was produced and no such obligation was ever made. 58.Third, in any event there was no evidence of how the borrower’s obligation became the 1st Respondent’s. That relation was too remote to exist. Even then, the alleged borrower was never called to testify. The 1 st Respondent’s mother was said to be the person who received the money. JUDGMEN ELCA NO. E032 OF 2022 15

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She was neither a party nor was she called to testify. No explanation was offered for her absence. 59.Fourth, the loan is said, in the Appellant’s witness statement, to have been advanced in December 2016. Yet, in paragraph 7 of his Statement of Defence, the Appellant pleaded that the loan was advanced in August 2020. That discrepancy cannot, in my view, be dismissed as a typographical error but a clear demonstration of a lie being fumbled. It is a substantive inconsistency in the Appellant’s own account which called for an explanation. Further, the sum said to have been received in repayment is the exact sum recited in an agreement executed in February 2021, which the Appellant maintains he never signed. The Appellant offered no satisfactory explanation for that coincidence. The inconsistency in the dates, the absence of documentary evidence of the alleged loan or any corroboration, and the coincidence in the amount received materially weakened the credibility of the Appellant’s alternative account. 60.Fifth, even if the alleged loan existed, the Appellant did not establish that the Kshs.120,000/= received from the 1 st Respondent was paid pursuant to any arrangement by which she assumed or discharged her mother's alleged debt. There was no evidence of any such agreement or understanding. The existence of a debt allegedly owed by a third party would therefore not, without more, provide a JUDGMEN ELCA NO. E032 OF 2022 16

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lawful basis for the Appellant to retain money received from the 1st Respondent. 61.The allegation of forgery fared no better. Forgery is a serious allegation which must be specifically pleaded and strictly proved. The standard of proof is higher than the ordinary balance of probabilities applicable to civil claims, though below the criminal standard of proof beyond reasonable doubt. The burden of establishing the alleged forgery, therefore, lay upon the Appellant, who was the party asserting it. 62.The Appellant made no attempt to prove it. He did not report the matter to the police or avail any evidence of the forgery, although he was served with Summons to enter Appearance in August 2021 and the alleged forgery concerned his own fingerprints and signature. He conceded as much in cross-examination. He did not apply to have the document subjected to examination by a document examiner. He called no expert evidence to support his claim. Furthermore, the appellant did not dispute the presence his other documents that would have facilitated the transaction if it would have succeeded. That was another critical coincidence. 63.In the circumstances, the learned trial magistrate was right in rejecting the allegation of forgery. In any event, the Appellant did not report the alleged forgery to the police to investigate it or even have a report that indeed there was a forgery, did not seek examination of the document by a JUDGMEN ELCA NO. E032 OF 2022 17

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document examiner, and called no expert or other witness capable of establishing that the fingerprints or signature appearing on the agreement were forged. His allegation therefore remained a bare assertion which did not meet the required standard of proof. 64.The 4th Ground of appeal was that the trial magistrate shifted the burden of proof. 65.Sections 107, 109 and 122 of the Evidence Act provide for the burden bearer in terms of proof. The legal burden lay on the 1st Respondent to establish her claim that she paid the money in issue and what it was for. She discharged that burden by producing the agreement, the supporting transaction records and other evidence of the transaction, in addition to the Appellant’s own admission that he received KShs. 120,000/-. Once receipt was admitted, the evidential burden fell upon the Appellant to establish the particular facts upon which he relied in explanation of that receipt or to the contrary, namely, that the money was repayment of an alleged loan and that the agreement relied upon by the 1st Respondent was forged. Sections 109 and 112 of the Evidence Act provide that the burden of proof in respect of particular facts especially within the knowledge of the party asserting them lies on him to discharge to the required standard. 66.In Ndiritu (Suing as Administrator for the Estate of George Ndiritu Kariamburi - Deceased) v Ropkoi & another [2004] KECA 65 (KLR) the Court of Appeal held JUDGMEN ELCA NO. E032 OF 2022 18

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that as a general proposition, under section 107(1) of the Evidence Act, Chapter 80 Laws of Kenya, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. However, there is in addition an evidential burden, cast upon any party, of proving any particular fact which he desires the court to believe in its existence, as captured in Sections 109 and 112 of the Act. 67.In my humble view and based on the evidence on the record and the analysis by the trial magistrate, the court did not reverse the burden, hence the 4th Ground of appeal fails. 68.A word is necessary on the reception of the Appellant’s oral loan narrative, since it was the whole of his defence. I need not determine the appeal on the basis of the parole evidence. The Appellant was entitled to challenge the authenticity and effect of the agreement and to place before the Court evidence explaining the receipt of the money. The difficulty for him is that, having failed to establish his claim of forgery, which was his alternative explanation to the 1st Respondent’s and it remained wholly unsupported by the evidence. d) Whether legality or otherwise of the agreement barred a refund JUDGMEN ELCA NO. E032 OF 2022 19

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69.The 2nd and 3rd Grounds of appeal speak to the same issue hence should be taken together. They are the Appellant’s strongest points on paper. 70.The contention in the second Ground of appeal is correct only to the extent that the issue that Appellant was not the registered proprietor of Nyatike/Kolal/426 is true, but that in so far as it went and therefore had no proprietary interest in the parcel capable of being transferred to the 1 st Respondent. That fact, however, does not assist him in resisting the claim for the recovery of money which he admittedly received. The absence of a proprietary interest capable of being transferred reinforces the conclusion that the Appellant could not perform the transaction as was contemplated. It cannot, without more, provide a basis for retaining the consideration paid by the 1st Respondent. 71.The 3rd Ground of appeal is that the agreement of 5 th February, 2021 was for that reason an unlawful contract, and that a court should not grant relief in furtherance of it. There is a further and fundamental difficulty with the Appellant’s argument. The trial court did not grant relief in furtherance of the agreement. It expressly declined the prayer for specific performance. The decree was for repayment of money admittedly received by the Appellant based on that agreement which could not be performed. The relief of a refund, therefore, did not require enforcement of the agreement, transfer of the land, or recognition of the Appellant as proprietor. It was a JUDGMEN ELCA NO. E032 OF 2022 20

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monetary order directed at restoring to the 1 st Respondent money which the Appellant had received and had failed to justify retaining. 72.There is, in any event, a specific statutory answer to the Appellant’s argument. The parcel of land, Nyatike/Kolal/426 is agricultural land which lies a land control area. The evidence before the trial court was that the 2nd Respondent declined to attend the Land Control Board, thereby denying him the grant of the requisite consent. Section 6(1) of the Land Control Act, Chapter 302 Laws of Kenya, renders a controlled transaction void for all purposes unless the consent of the Land Control Board is obtained within the prescribed period. 73.Section 7 of the same Act expressly addresses the consequence for consideration already paid. It provides that where a controlled transaction becomes void under Section 6, any money or other valuable consideration paid in the course of that transaction is recoverable as a debt by the person who paid it from the person to whom it was paid, subject to Section 22. 74.In Kitilit v Kibet [2018] KECA 573 (KLR), the Court of Appeal observed that under Section 7 of the Land Control Act, consideration paid for a transaction which becomes void is recoverable as a debt, subject to Section 22. The same position was applied in Cherutich v Kebut [2025] KEELC 179 (KLR), where the court upheld a refund of the purchase price following a finding that the sale JUDGMEN ELCA NO. E032 OF 2022 21

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transaction was void for want of Land Control Board consent. 75.The Appellant cannot, therefore, rely on the absence of capacity or the invalidity of the transaction as a defence to the claim for recovery of the consideration. On the contrary, where the transaction falls within Section 6 and becomes void for want of the requisite consent, Section 7 expressly provides the statutory mechanism by which the consideration paid is recoverable. In the circumstances of this case, this Court would and now does so hold that the sum paid by the 1st Respondent to the Appellant was recoverable as ordered, based on that statutory basis hence the trial magistrate did not err in granting the alternative relief to specific performance. 76.The same conclusion is reached, in the alternative, on the basis that of justice demands that the court pronounces itself on applicability or otherwise of the principle of unjust enrichment. This principle has its origins in the Latin phrase, "jure naturae aequum est neminem cum alterius detrimento et injuria fieri locupletiorem" propounded by the Roman jurist, Pomponius. It means that by natural law it is just that no one should become richer to the damage and injury of another. 77.In the present circumstances, the appellant received money from the 1st Respondent. That means he was enriched by the receipt of Kshs. 120,000/. Did he have any legal basis to retain it after the agreement for the sale of land failed? In JUDGMEN ELCA NO. E032 OF 2022 22

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my view, that enrichment was at the expense of the 1 st Respondent, who gave money but received neither the land nor any other benefit in return. In the circumstances, it would be unjust to permit the Appellant to retain the money. It would run against the principle hereinabove, in the previous paragraph. In any event, the statutory remedy under Section 7 of the Land Control Act is sufficient to dispose of the issue, and the equitable principle herein merely reinforces the conclusion. 78.In the circumstances, it is unnecessary to determine whether the 1st Respondent would independently be entitled to restitution on the broader doctrine of unjust enrichment. Section 7 of the Land Control Act provides a direct statutory basis for recovery of the consideration paid. The Appellant’s reliance on the invalidity of the transaction therefore cannot defeat the 1st Respondent’s claim for repayment. Accordingly, the 2nd and 3rd of appeal grounds fail. 79.The 8th Ground of appeal is that the judgment was against the weight of the evidence. I have considered the evidence that was presented before the trial magistrate. I have analyzed it above when considering various issues. It was clear that the Ground 5 is, similarly, unfounded. This is because I have independently considered the pleadings, the evidence and the issues arising therefrom and find no material issue which the learned trial magistrate failed to identify or determine. e) Interest and costs JUDGMEN ELCA NO. E032 OF 2022 23

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80.The 6th and 7th Grounds attack the awards of interest and costs. Both awards were discretionary, but based on the provisions of the law. Section 26(1) of the Civil Procedure Act empowers a court, where a decree is for payment of money, to order interest at such rate as it deems reasonable on the principal sum adjudged, from the date of the suit to the date of the decree, together with further interest on the aggregate sum from the date of the decree to payment. Section 27(1) provides that costs follow the event unless the court, for good reason, otherwise orders. Interest thereon may be charged but from the date they are ascertained and not paid. 81.An Appellate court will not lightly disturb the exercise of such a SERVICES discretion. LTD v In SUPERMARINE KENYA REVENUE HANDLING AUTHORITY [2010] KECA 373 (KLR), the court stated that where a trial court has exercised its discretion on costs, an appellate court should not interfere unless the discretion was exercised injudiciously or on wrong principles. Nothing of that sort occurred here. The 1st Respondent succeeded on the relief of her alternative prayer. Costs followed the event. Interest was awarded at court rates, no more. The trial Court needed to explain the rationale for the award of interest although it is clear that the successful party was kept out of the use of her money by reason of the same being within the control of the judgment debtor, since February 2021. JUDGMEN ELCA NO. E032 OF 2022 24

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82.One matter calls for clarification. The typed judgment of the trial court states that interest was to accrue at court rates but does not specify the date from which it was to run. Section 26(1) of the Civil Procedure Act contemplates an award of interest on the principal sum from the date of the suit to the date of the decree, and further interest on the aggregate sum from the date of the decree until payment. The 1st Respondent had sought interest, and the trial court expressly exercised its discretion to award interest at court rates. In the circumstances, and in exercise of the powers of this Court under section 78 of the Civil Procedure Act, I clarify the incomplete aspect of the order by directing that the interest on the Kshs. 120,000/- shall run at court rates from the date of filing of the suit until payment in full. Accordingly, Grounds 6 and 7 fail. Costs of the appeal 83.In litigation, except for other reasons to be explained by the judge or judicial officer, costs follow the event. The 1 st Respondent has successfully resisted this appeal. She is entitled to costs. 84.The 2nd Respondent took no part in the proceedings below and none in this appeal. No decree was made against him and none is sought against him now. No order as to costs will be made for or against him. Disposition JUDGMEN ELCA NO. E032 OF 2022 25

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85.The upshot of the foregoing is that I find that this appeal is devoid of merit. It is hereby dismissed in its entirety. The judgment and decree of the Chief Magistrate’s Court at Migori (Hon. J. M. Munguti, SPM) delivered on 30 th November, 2022 in Migori CMC MCELC No. E051 of 2021 be and is hereby upheld. a) For the avoidance of doubt, the sum of Kshs. 120,000/decreed shall attract interest at court rates from the date of filing of the suit until payment in full. b) Only the 1st Respondent shall have the costs of this appeal. 86.Orders accordingly. Ruling Dated, Signed and Delivered virtually via the Teams Platform this 29th day of September 2026. HON. DR. IUR NYAGAKA JUDGE From 12.17 PM, in the presence of: M. Odera Advocate for the Appellant Mr. D. Otieno for the 1st Respondent Ms. Lola, Court Assistant JUDGMEN ELCA NO. E032 OF 2022 26

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