Aswani v Ashioya (Environment and Land Case 15 of 2024) [2026] KEELC 238 (KLR)
The bottom line
#A Busia landowner suing his former lawyer lost his entire case and must now pay back Kshs 600,000 with 14% interest because he couldn't prove his claims.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether or not the Defendant owes the Plaintiff the amount of money stated in the Plaint and interest thereon at 14%
- 2.Whether or not the Defendant is entitled to recover the sum of Kshs. 600,000/- and 14% interest thereon from the Plaintiff as claimed in the counterclaim
- 3.Cost of the suit and the counterclaim
Key legal issues
#Whether the Defendant owes the Plaintiff Kshs 4,800,000 plus 14% interest or refund of Kshs 580,000/- plus interest
The plaintiff failed to prove the claim; no basis for the Kshs 4,800,000 figure and the Kshs 580,000/- was admitted to be disbursements paid to his advocate.
The court examined the plaint, evidence and submissions and found no foundation for the Kshs 4,800,000 claim. On the Kshs 580,000/-, the plaintiff admitted on cross-examination that the payments were disbursements made to the defendant in his capacity as the plaintiff's advocate, a relationship that was never denied. No evidence established any debt owed by the defendant.
Whether the Defendant's counterclaim for Kshs 600,000/- is barred by res judicata given prior Small Claims Court proceedings
Not res judicata - the prior suits were struck out or dismissed for lack of jurisdiction without adjudication on the merits.
The Busia Small Claims Court claim was dismissed for want of jurisdiction and the Kakamega Small Claims Court claim was struck out for being filed in a court devoid of jurisdiction. Section 7 of the Civil Procedure Act requires that the matter have been heard and finally decided by a competent court, which did not occur. The counterclaim therefore proceeded to merits and was proved.
Whether the Defendant is entitled to refund of Kshs 600,000/- paid for the purchase of the suit land
Yes - documentary evidence including Advocates Complaints Commission correspondence showed payment for an incomplete land sale transaction; the defendant had signed and transmitted re-transfer documents.
The court found from the defendant's documents, including correspondence with the Advocates Complaints Commission and the plaintiff's declaration accompanying the caution, that the defendant paid Kshs 600,000/- towards purchase of the suit land which was not completed. Since the defendant had executed and transmitted all re-transfer documents, the plaintiff was bound to refund the purchase price.
Legal principles established
#- The burden of proof in civil claims rests on the plaintiff to prove his claim on a balance of probabilities (Section 107, Evidence Act)
- A court that strikes out a claim for lack of jurisdiction has not heard and finally decided the issue; res judicata under Section 7 of the Civil Procedure Act is therefore not established
Court orders
#- 1.The suit is dismissed
- 2.Judgment entered in favour of the Defendant and against the Plaintiff on the counterclaim for Kshs 600,000/- and interest thereon at 14% from the date of filing the suit
- 3.Each party shall bear own costs of the suit and counterclaim
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution (Environment and Land Court jurisdiction) - suit filed in the Environment and Land Court at Busia
Relief refused
#Order compelling Oye Ashioya to pay 14% of the value of four plots (Kshs 4,800,000) for eight years
No basis disclosed in the plaint, evidence or submissions; the sum of Kshs 4,800,000 was unexplained
Refund of Kshs 580,000/- as legal fees plus 14% interest for 8 years
Plaintiff admitted in cross-examination that the payments were for disbursements to his advocate; the advocate-client relationship was not denied
Declaration that the Plaintiff is the owner of parcel Bukhayo/Mundika/12883
The Plaintiff has not presented the transfer documents signed by the Defendant to the Lands Office to effect re-transfer
Costs
Each party shall bear own costs of the suit and counterclaim
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.
I find that the Plaintifi has not proved his claim on a balance of probabilities as required in civil cases.
There is no evidence that the claim was adjudicated upon and a determination of the issue in controversy arrived at.
The Plaintifi ought to refund the purchase price paid to him.
Judgement is entered in favour of the Defendant and against the plaintifi on the counterclaim for Kshs 600,000/ and interest thereon at Kshs 14% from the date of filing the suit.
Given the relationship of advocate-client that the parties have enjoyed in the past, each party shall bear own costs of the suit and counterclaim.
Issues in the judgment
#Numbering skips from paragraph 32 to paragraph 34; paragraph 33 is missing from the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Aswani v Ashioya (Environment and Land Case 15 of 2024) [2026] KEELC 238 (KLR)", Case Analysis (2026). Busia ELC Case No. E012 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/238/eng@2026-01-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.