Chelogoi v Wekesa (Civil Appeal 244 of 2020) [2026] KECA 1326 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a land seller's claim because he was implicated in a fake agreement used to inflate a loan.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Which of the competing agreements dated 10th September 2009 constituted the genuine and enforceable agreement between the parties
- 2.Whether the respondent discharged his obligations under that agreement
- 3.Whether the appellant established fraud, illegality or any procedural or evidentiary impropriety capable of impeaching the completed transaction or entitling him to rescission and cancellation of the respondent's title or other reliefs sought
Key legal issues
#Which of the competing agreements dated 10th September 2009 was the genuine and enforceable agreement
The agreement reflecting a purchase price of Kshs. 6,000,000 was the genuine agreement; the Kshs. 12,000,000 agreement was created to deceive the PSC into advancing a larger loan, and the Kshs. 14,000,000 agreement was accorded no evidential weight by either party.
The advocate who drew the agreement testified that the original reflected Kshs. 6,000,000. The respondent admitted the Kshs. 12,000,000 agreement was fabricated to secure a larger PSC loan. Transfer instruments reflected a combined consideration of Kshs. 6,000,000, and the appellant's own correspondence acknowledged the Kshs. 6,000,000 agreement and distinguished it from a collateral verbal arrangement. The trial judge's finding was firmly anchored in evidence.
Whether the respondent breached the agreement by failing to pay the alleged balance of Kshs. 6,000,000
No breach: the respondent paid a deposit of Kshs. 200,000 and a further Kshs. 5,800,000, matching the agreed purchase price of Kshs. 6,000,000 in full.
Having affirmed the trial court's finding on the genuine agreement, the natural consequence is that the claim for an outstanding balance fails. The amounts paid matched the agreed price and the appellant acknowledged receipt. The respondent fully performed his obligations under the agreement.
Whether fraud, illegality or procedural impropriety entitled the appellant to rescission and cancellation of title
No: the fraud findings concerning the altered agreement did not advance the appellant's claim, which was itself founded on the illegal transaction and barred under the ex turpi causa principle; rescission and cancellation required proof of a legal basis for impeaching the completed transaction.
Although the Kshs. 12,000,000 agreement was generated for an improper purpose, the appellant was aware of and implicated in that illegality, so the court would not lend its aid to enforce rights arising from it. The alleged Land Control Board irregularities and criminal proceedings were unsupported by evidence produced at trial. The authorities cited on fraud and indefeasibility were distinguished as decided in materially different factual contexts.
Whether the evidence of Ms. Omolo, the conflicted advocate, was properly admitted and relied upon
Yes: a witness's alleged conflict of interest does not per se render their evidence inadmissible; it goes only to probative value, and no objection was raised at trial. In any event the finding did not rest solely on her testimony.
While an advocate ought not to act where there is a conflict of interest, the germane question was whether the conflict rendered her evidence inadmissible or unreliable. The record showed no objection when she testified. Her testimony was corroborated independently by the transfer instruments, the respondent's admissions and other documentary evidence, so even excluding it the outcome would be the same.
Legal principles established
#- A court will not enforce rights arising from an illegal or unlawful transaction; a party implicated in illegality cannot found a claim on the tainted transaction
- Fraud must be specifically pleaded and distinctly proved to a standard above a balance of probabilities, though not beyond reasonable doubt; it cannot be left to inference
- An appellate court will not lightly interfere with findings of fact by a trial court unless it acted on no evidence, misapprehended the evidence, or took into account irrelevant considerations or failed to take into account relevant ones
- A witness's alleged conflict of interest from having acted for parties to a transaction does not per se render their evidence inadmissible; it bears only on probative value
- Submissions cannot take the place of evidence; matters not produced as exhibits at trial cannot be relied upon on appeal
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.The judgment of the Environment and Land Court dismissing the appellant's claim is upheld
- 3.Each party bears its own costs of the appeal, upholding the trial court's order that each party bear its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Authored the lead judgment dismissing the appeal: the genuine agreement was the one reflecting a purchase price of Kshs. 6,000,000, fully paid; the fraud findings did not assist the appellant and the claim founded on the altered agreement failed under ex turpi causa.
In the end, I find no merit in this appeal and would dismiss it in its entirety.p. 15
Fully concurred with the lead judgment without adding anything.
I entirely agree with his reasoning and conclusions, and have nothing useful to add.p. 15
Wrote the judgment
Wholly concurred with the lead judgment of Musinga, JA without adding anything.
I wholly agree with the reasoning and conclusion therein.p. 15
- On appeal from
- Environment and Land Court at Nairobi
- Jurisdiction invoked
- First appeal to the Court of Appeal under its appellate jurisdiction (section 3 of the Appellate Jurisdiction Act invoked implicitly); judgment framed as a first appeal by way of retrial
Relief refused
#Payment of the outstanding balance of Kshs. 6,000,000 and interest
The genuine agreement was the one reflecting Kshs. 6,000,000, which was fully paid; the claim rested on the altered agreement and could not be enforced being founded on an illegal transaction
Rescission of the sale and cancellation of the respondent's title
No legal basis was established for impeaching a transaction completed under a valid, fully-performed agreement
Costs of the suit and appeal awarded to the appellant
Costs are in the court's discretion; the trial court's order that each party bear its own costs, made in disapproval of the respondent's misconduct, was not challenged by cross-appeal and was upheld
Costs
Each party to bear its own costs of the appeal, upholding the trial court's order that each party bear its own costs of the suit
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
No court ought to enforce an illegal contract or allow itself to be made the instrument of enforcing obligations alleged to arise out of a contract or transaction which is illegal, if the illegality is duly brought to the notice of the court, and if the person invoking the aid of the court is himself implicated in the illegality.
In the end, I find no merit in this appeal and would dismiss it in its entirety.
I would uphold the trial court's finding regarding costs, and equally order that each party bears its own costs of this appeal.
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.
As this is a first appeal, it is our duty to analyze and re-assess the evidence on record and reach our own conclusions in the matter.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chelogoi v Wekesa (Civil Appeal 244 of 2020) [2026] KECA 1326 (KLR)", Case Analysis (2026). Civil Appeal (Court of Appeal, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1326/eng@2026-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.