Millicent Janet Anyango Otom (Suing as a Widow and Legal Representative of the Estate of Jacob Odhiambo Millo) & Another v Action Aid Cooperative Savings and Credit Society Limited

orders to costs. Dissatisfied with the decision the Appellants lodged an appeal pursuant to the memorandum of appeal dated August 20, 2024. 3. The Appeal was admitted for hearing on 17.03.2026 with a direction that it be canvassed by way of written submissions. Appellants filed their submissions dated 20th June 2026.The Respondent neither participated nor filed its submissions despite being served with mention notice for the periods of September 19th ,2025 -17.3.2026 both periods inclusive. 4. The Appellant submitted that the deceased never breached the terms of the agreement dated 1.12.2011 and 15.12. 2011.They urged that the contract was valid and enforceable as deceased did not rescind the agreement prior to his demise. They contended that the suit property, namely L.R. No. 13418/70 constituted part of the deceased’s estate that should be registered in the name of appellants as administrators of estate of deceased. contended that the purchase price of kshs 5,050,000/=be refunded to the appellants equivalent to current market value. The 1st Appellant contended that the sum of Kshs. 189,000 was contributed towards acquisition of the suit property hence entitled to its refund. 5. Having considered the entire record of appeal, the Memorandum, and grounds raised in the appeal, together with the Appellant’s written submissions the issues for determination areWhether the trial court properly evaluated the evidence and consequently arrived at the correct decision in dismissing the Appellants' suit. a) b) Whether the deceased Page 2 of 15 rescinded the sale

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Agreements and refunded the purchase price Whether the appellants are entitled to registration of L.R. No. 13418/70 as administrators of Deceased estate c) d) Whether the Appellants are entitled to the monetary reliefs sought. e) Who to pay costs of the appeal? 6. The court in Selle and Another vs. Associated Motor Boat Company Ltd & Others, [1968] EA 123, Sir Clement De Lestang, stated:“(i) An appeal from the High Court is by way of a re-trial and the Court of Appeal is not bound to follow the trial judge’s findings of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of the demeanor of a witness is inconsistent with the evidence generally; (ii) there was no valid reason for interfering with the learned judge’s finding on the facts; (iii) …” 7. The Court in Mbogo & Another v Shah [1968] EA 93 stated that:-, “(i) in the circumstances the judge exercised correctly his discretion to refuse the Application to set aside the judgement; (ii) a Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that he misdirected himself in some matter and as a result arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge was clearly wrong in the exercise of Page 3 of 15

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his discretion and that as a result there has been misjustice.” 8. Considering the first appellate court never had the chance to hear the evidence from inception, nor had the advantage of observing the demeanor of the witnesses, it can only interfere with judgment of the lower court in instances where there is a clear manifestation that the court was so wrong in exercise of his discretion and occasioned a misjustice or misdirected himself in some matter and as a result arrived at s wrong decision. 9. As to Whether the trial court properly evaluated the evidence and consequently arrived at the correct decision in dismissing the Appellants' suit, The Court in Trust Bank Limited V Paramount Universal Bank Limited & 2 Others [2009] KEHC 4030 (KLR) stipulated that:“. It is trite that where a party fails to call evidence in support of its case, that party’s pleadings remain mere statements of fact since in so doing the party fails to substantiate its pleadings. The 2nd Defendant and 3rd Defendant’s defence were unsubstantiated and remained mere statements. In the same vein failure to adduce any evidence meant that the evidence adduced by the Plaintiff against the 2nd and 3rd Defendants was uncontroverted and therefore unchallenged. In AUTAR SINGH BAHRA AND ANOTHER VS RAJU GOVINDJI HCCC NO. 548 of 1998(UR) Mbaluto J. held: “Although the Defendant has denied liability in an amended Defence and counter-claim, no witness was called to give evidence on his behalf. That means that not only does the Defence rendered by the 1st Plaintiff in Page 4 of 15

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support of the Plaintiff’s case stand unchallenged but also that the claims made by the Defendant in his Defence and Counterclaim are unsubstantiated. In the circumstances, the Counterclaim must fail. I am persuaded that the cited case is a good law and I am guided by it. Following the said case, I do find that the 2nd and 3rd Defendants defences were unsubstantiated and further the Plaintiff’s evidence against them unchallenged.” 10. Further, the Court in Kenya Power and Lighting Company Limited v Nathan Karanja Gachoka & another [2016] KEHC 1362 (KLR) states:“15. I am of the considered view that uncontroverted evidence must bring out the fault and negligence of a defendant, and that a court should not take it truthfully without interrogation for the reason only that it is uncontroverted. A plaintiff must prove its case too upon a balance of probability whether the evidence is unchallenged or not. 16. In Kanyungu Njogu vs Daniel Kimani Maingi (2000) e KLR it was held that: “ when a court is faced with two probabilities, it can only decide the case on a balance of probability if there is evidence to show that probability was more probable than the other” 11. Section 107-109 of Evidence Act Cap 80 laws of Kenya place the burden of proof on He who alleges a fact whether Page 5 of 15

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controverted or not. In the present case, the Respondent neither entered appearance nor participated in the proceedings and, consequently, did not adduce any evidence to contradict the Appellants’ case. The Appellants’ evidence was uncontroverted. However, the burden of proof rested with the appellants to prove their case against the defendant on a balance of probabilities. The learned trial magistrate was duty bound to evaluate the evidence adduced by the Appellants against the pleadings as filed on record and applicable law to determine whether the Appellants discharged their burden of proof against the respondent. 12. As to whether the Sale Agreement dated December1, 2011 was rescinded by deceased and purchase sum refunded, it is not doubted the sale agreements executed by the Deceased (Jacob) and Respondent produced on record by Appellants were reduced in writing and executed by parties to the agreement thereby in compliance with the formal requirements under section 3(3) of the Law of Contract Act. 13. . Evidence on record proves that the late Jacob Odhiambo Milo executed a sale agreement with the Respondent on 1.12.2011 for sale of plot L.R. No. 13418/70, measuring approximately 0.1953 hectares, at a purchase price of Kshs.2,401,000. The deceased(Milo) paid kshs 960400/= to the respondent/defendant upon execution of the agreement hence the balance of Kshs.1,440,600 payable within 90 days from the date of execution of the agreement. 14. The Deceased (Jacob) subsequently executed a sale agreement pertaining lr No 13418/70 at ½ acre of the plot on request of the Respondent to accommodate one Lilian kagai who missed out on the plot allocation by the respondent at kshs 2,401,000/= with a promise of registration of share of the purchasers at 50% @. The agreement was executed by Page 6 of 15

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deceased and Lilian kagai on 15.12.2011 and kshs 1,350,000/= paid to the respondent on behalf of deceased to offset his loan with the respondent on account of lr 13418/70 as per the acknowledgement of receipt by respondent on record. 15. The Agreement imposed upon the Deceased (Juma) the obligation to pay the purchase price of Kshs.2,401,000 to the Respondent. Correspondingly, the Respondent was obliged to perform its contractual obligations necessary to complete the sale and facilitate transfer of the suit property upon payment of the purchase price and fulfilment of the stipulated completion requirements. By its letter dated 24 September 2012, the Respondent acknowledged deceased’s payment of Kshs.5.05,000/=(5.05 million), hence a balance of Kshs.312,000, in respect of L.R. Nos. 13418/70 and 13418/95. Subsequently, by a letter dated October 15th ,2012, the Respondent offered the deceased an option of being refunded the money paid, together with interest not exceeding 12% per annum from 1 March 2012. 16. The Black’s Law Dictionary, 9th Edition defines “rescission” as: “A party's unilateral unmaking of a contract, for a legally sufficient reason such as the other party’s material breach or a judgment rescinding the contract… Rescission is generally available as a remedy or defence for a non-defaulting party and is accompanied by restitution of any” 17. The Respondent’s letter dated October,15,2012 offered a refund, in the alternative to the Deceased. It did not constitute an unequivocal termination of the Agreement. It contradicted the Respondent’s subsequent assertion that the Sale Agreement dated December 1,2011 had already been rescinded. Page 7 of 15

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18. By a letter dated June 15th, 2020, the Respondent alleged that the deceased had been refunded Kshs. 3,200,000/=(.3.2 million ) on account of his investments or shares relating to L.R. Nos. 13418/70 and 13418/95 yet a letter dated 28.11.2016 confirmed the contract between deceased and respondent had not been rescinded .At the close of proceedings before the trial magistrate the Respondent produced no agreement, acknowledgment of receipt , payment voucher signed by the deceased confirming that he was paid kshs 3,200,000/= on account of rescission of the sale agreement for the plots lr number 13418/70 and 95 nor any discharge note on the part of deceased to respondent absolving the respondent from any liability pertaining sale of plot number lr 1341/70 and 95.There was no evidentiary basis upon which the learned trial magistrate duly concluded that the Agreement was mutually rescinded by the Deceased and respondent/defendant. 19. Further to the foregoing, the subsequent conduct of the parties is material. The deceased died on 26 December 2013. Letters of Administration Intestate were issued to the Appellants on 20 January 2015and confirmed on 19 October 2015 though rectified on 3 June 2019.The Appellant received an unequivocal representation from the Respondent’s then Advocates, Jacob Ngwele & Co. Advocates, by letter dated 28 November 2016, in response to the Appellants’ letter dated 15 November 2016 that the contract had not been revoked and title deed being processed. avoidance of doubt the letter dated November 11,2016 stated as follows: “ lr no 1 34 1 8 /9 5 - ch an ge of user sold at kshs 3,00,1000/=.and the title deed is being processed the change of user from nursery school to residential was issued on 22.9.2015 vide the pdp attached. The title to be transferred in the name of appellant as promised by respondent. loan balance of kshs Page 8 of 15

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841.600/= to be cleared from the Sacco. balance of kshs 650,000/= to be cleared before the title deed could be handed over to the appellant. Lr number 13418/70 sold at kshs 2,401,000/=. the contract has not been revoked nor the land transferred hence remains your property the SACCO wishes to confirm that the contract for the sale of the same to the late Jacob Millo (and now to his estate) has not been revoked nor the land sold or transferred and the same remains your property as we expedite the process.” 21. Section 120 of the Evidence Act, Cap 80 provides for general estoppel as follows:When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.” 22. The representation by Respondent vide its letter dated June15.2020 alleging refund of kshs 3,200,000/= contradicted the contents of its letter dated November 28,2016. The Respondent was estopped from pleading rescission of the contract by deceased and refund of purchase price to the deceased based on documentary evidence on record hence find the contract was valid and enforceable. The Respondent, having failed to controvert the testimony of Appellants on record, corroborated by respondent’s admission on 28.11.2016 that the deceased paid a total of kshs 5,050,000/= towards purchase of the two plots, was estopped from alleging a refund Page 9 of 15

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of kshs 3,200.000/= to deceased prior to his demise in 2013. There was no evidence upon which the learned trial magistrate based the finding that kshs 3,200,000/= was refunded to the deceased thereby rescinding the agreement executed on 1.12.2011 and 15. 12.2011.The court finds that The learned trial magistrate erred in law and fact in finding that the contract had been rescinded, purchase price of kshs 3,200,000/= refunded to deceased and not enforceable placing reliance in the case of Palace Investments Limited v Geoffrey Kariuki Mwenda & Another [2015] KECA 616 (KLR), where the Court of Appeal stated: “The burden of proof is placed upon the appellant and is to be discharged on a balance of probabilities. Denning J. in Miller v Minister of Pensions [1947] 2 All ER 372, discussing the burden of proof, had this to say: ‘That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: “We think it more probable than not”, the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.’". 23. As regards the alleged Kshs.189,000/= paid by the 1st Appellant through standing orders between June 2016 and May 2018 to keep the account active, correspondences on record that the 1st appellant was informed by the Respondent to Page 10 of 15

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stop payment of the standing order in the account as the property had not been registered in the name of the deceased which prompted the 1st appellant to stop payment in 2018.The 1st appellant’s assertion was not controverted by the Respondent. The sum of kshs 189,000/= is awarded to the 1st appellant with interest from May 2017 till payment in full. Page 11 of 15

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24. As to whether the Appellants proved their entitlement to L.R. No. 13418/70 ,Section 107- 109 of the Evidence Act, Cap 80:“107. (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. 108. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. 109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.” 25. In Githaiga vs Mwangi (Civil appeal E064 of 2022) [ 2024] the court held that:“It follows that the initial burden of proof was with the Plaintiff, but the same may shift to the Defendant, depending on the circumstances of the case and the evidence tendered. In Evans Nyakwana –vs- Cleophas Bwana Ongaro [2015] eKLR it was held that: “As a general preposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107 (i) of the Evidence Act, Chapter 80 Page 12 of 15

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Laws of Kenya. Furthermore, the evidential burden…is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of law that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail fi no evidence at all were given as either side.” In Civil cases the burden that a party has to proof is on a balance of probabilities. The court in Githaiga vs Mwangi expounded the above position by stating that; “The balance of probability means that the court thinks it more probable than not, the burden is discharged” Section 107 of the Evidence Act states that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” 26. The Appellants” evidence on record is that plot lr number 13418/70 and 95 belonged to the deceased that should be registered in their names as administrators of deceased estate. The Plaintiffs/Appellants prayed for refund of the purchase sum being kshs 5.050,000/=for the two plots (13418/70 and 95) at current market rates in the alternative. At close of proceedings the appellants did not prove that they took possession and/ or occupation of the suit property which does not form part of the estate of deceased. The appellants never availed a valuation report to ascertain the market value of the plot(s) as a guide to court on the reasonable sum payable to the estate of deceased through the appellants. The Appellants are not entitled to registration of the plot (lr13418/70 as administrators of the Page 13 of 15

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estate of deceased save for a refund of the purchase price of kshs 5,050,000/=for the purchased plot (lr 13418/70 and 95 as at 28.11.2016 together with interest at court rates till payment in full. 27. Costs follow the events pursuant to section 27 of the civil procedure act 2010 though awarded at discretion of the court based on circumstances of each case. In this case costs of the appeal are awarded to the appellants. 28. The final disposition of the court on the appeal is that the appeal is meritorious and allowed on following terms: a) The judgment and decree of the trial magistrate dated 25.7.2024 as entered against the appellants is overturned and substituted with an order that judgement is entered in favor of the Appellant/plaintiffs as against the Respondent. b) A Declaration that the deceased (Jacob Odhiambo milo) performed his part of the sale agreement dated 1.12.2011 and 15.12.2011 pertaining suit property known as L.R. No. 13418/70 and 95 was entitled to 50% share interest of the suit property is declined. c) The D e f e n d a n t / r e s p o n d e n t to r e f u n d the sum of kshs 5,050,000(5.05milliion), paid by the deceased to the Appellants with interest at court rates from 28.11.2016 till payment in full. d) The Defendant to refund the sum of kshs 189,000/= to the Appellant from May 2017 with interest at court rates till payment in full. e) Costs of the appeal and suit at magistrates’ court (Nairobi Milimani Magistrate Court CMELC No. E453 of 2023) awarded to the to the Appellants. Page 14 of 15

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It is ordered accordingly. DATED, SIGNED AND DELIVERED ON THIS 21ST DAY OF SEPTEMBER 2026 AT VOI HON. J. A. ORWA JUDGE IN PRESENCE OF: MS SONIA FOR THE APPELLANT. LETISIA -- COURT ASSISTANT BUT ABSENCE OF THE RESPONDENT Page 15 of 15

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