Ong’undi v Odhiambo (Environment and Land Appeal E011 of 2025) [2026] KEELC 472 (KLR)
The bottom line
#A land buyer lost a Kshs. 2.3 million refund order because he couldn't prove the seller actually received his money.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial court erred in allowing the respondent's claim for refund of the purchase price despite absence of proof that the appellant received the money
- 2.Whether the trial court erred in relying on a draft defence (which was not a pleading) to found judgment
Key legal issues
#Burden of proof of payment of the purchase price
The burden rested on the respondent to prove that he paid the money to the appellant or that the appellant received it, and that burden was not discharged on a balance of probabilities
The respondent testified that he paid the money through his lawyer to the appellant's lawyer, but the land sale agreement contained no express clause requiring payment through the appellant's advocates. PW2 acknowledged receipt of Kshs. 2,307,509/= but no bank statements, pay-in-slips or other documentary evidence were produced to show the money reached the appellant. The appellant denied receipt of any amount.
Reliance on a draft defence as a pleading
The draft defence relied on by the trial court (in which the defendant was said to have admitted receiving Kshs. 2,307,509/=) was not a pleading in the case and could not support judgment
The trial court had based its finding of an admission on a draft statement of defence attached to an application for setting aside interlocutory judgment. The appellate court held that such a draft was not a pleading in the case, so the purported admission could not found the decree for refund.
Foundation for an order of refund
In the absence of evidence that money was paid to the appellant and of a clause allowing payment through the appellant's advocate, the trial court erred in finding for the respondent
Relying on KCB v Osebe and Olegasalie New Properties Limited v Lematasho, the court reasoned that a refund order requires a factual and legal foundation and that restitution presupposes unjust enrichment under an enforceable or partially performed contract. With no proof of payment, the refund decree could not stand.
Legal principles established
#- A first appellate court must reconsider the whole evidence, re-evaluate it and arrive at its own independent conclusion while making due allowance for not having seen or heard the witnesses
- A court must be satisfied of the factual and legal foundation of an order before granting it
- Restitution by way of refund of the purchase price arises only where a party has been unjustly enriched under an enforceable or at least partially performed contract
Court orders
#- 1.Appeal allowed
- 2.Judgment of the trial court set aside and replaced with a judgment dismissing the respondent's suit
- 3.Each party to bear own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court, Kisumu (ELC)
- Kisumu MCELC Case No. 447 of 2018
- Jurisdiction invoked
- First appellate jurisdiction over a magistrates' court decree (Civil Procedure Act); appeal against judgment and decree dated 21st January 2025
Relief refused
#Costs of the appeal payable by the respondent
Although costs ordinarily follow the event under section 27 of the Civil Procedure Act, PW2 admitted receiving money from the respondent, making it unconscionable to burden the respondent with the appeal costs
Costs
Each party to bear own costs of the appeal
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.
The court finds that the appeal has merit and hereby allows it. The judgement of the trial court is hereby set aside and replaced with a judgement dismissing the respondent’s suit.
Each party to bear own costs of the appeal.
This being a first appeal the court has a duty to reconsider the whole evidence produced before the trial court, re-evaluate it and arrive at its own independent conclusion.
The draft defence relied upon by the trial court was not a pleading in the case.
it is a well-established rule of evidence that whoever asserts a fact is under an obligation to prove it in order to succeed
Issues in the judgment
#Internal inconsistency in dates: the appeal memorandum is dated 17th February 2025 yet the memorandum is said to challenge a judgment dated 21st January 2025, while the judgment date of the trial court is later stated as 4th November 2025
Conflicting figures within the judgment: the trial court's finding on the refundable sum is recorded variously as Kshs. 2,307,509 and Kshs. 2,305,509, and the received amount leaves a stated 'balance' of Kshs. 2,592,491 which does not reconcile with the pleaded balance of Kshs. 1,594,591
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ong’undi v Odhiambo (Environment and Land Appeal E011 of 2025) [2026] KEELC 472 (KLR)", Case Analysis (2026). Not stated in the judgment (Memorandum of Appeal dated 17th February 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/472/eng@2026-02-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.