Catherine Muthanji Kariuki v Joseph Macharia Chuchu

Proceedings before the Trial Court 3. The Respondent instituted the suit by a Plaint dated 16 th March 2021, later amended on 28th June 2021, seeking an order directing the Appellant to transfer to him a portion measuring 1/8 of an acre out of the suit property and to execute all necessary documents to facilitate the transfer; in the alternative, a refund of Kshs. 650,000 together with interest and damages for breach of contract; costs of the suit; and any other relief the court deemed fit to grant. 4. The Appellant entered appearance and filed a Statement of Defence dated 1st April 2021, later amended on 24th August 2021. She denied having received Kshs. 500,000 from the Respondent, averring that she received only Kshs. 110,000 after the signing of the sale agreement. She denied having instructed the Respondent to pay Kshs. 140,000 to one Benedict Mulwa or any other person, denied that the Respondent was entitled to specific performance or to a refund of Kshs. 650,000 and pleaded that the agreement was null and void for want of the consent of the Land Control Board. 5. The Respondent testified as PW1. His evidence was that the Appellant was the registered proprietor of the Suit Property and that the parties agreed on the sale of a portion thereof at a consideration of Kshs. 1,000,000. He stated that he paid Kshs. 500,000 on 23 rd April 2019, a further Kshs. 10,000 and Kshs. 140,000 to the surveyor. He stated that it THIKA ELC APPEAL NO. E018 OF 2024 (JUDGMENT) Page 2

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was an implied term of the agreement that upon completion of the subdivision the Appellant would transfer the agreed portion to him, which she had failed to do. He produced, among other documents, the sale agreement, the mutation form, the green card, a service agreement and a demand letter. 6. PW2, Mr. George Gatere, Advocate of the High Court of Kenya, testified that he prepared the sale agreement, that the consideration was Kshs. 1,000,000 and that Kshs. 500,000 was paid to the Appellant in his presence at his office, with an acknowledgement of payment being made. He stated that he read and explained the contents of the agreement to the parties. He maintained this position in crossexamination. 7. PW3, Peter Wanyoike Gichina, testified that he helped the Respondent identify land to purchase, accompanied the parties to the advocate’s office, and was present when the Appellant received Kshs. 500,000. He stated that the surveyor was paid some money, although he could not say how much. 8. The Appellant testified as DW1. She confirmed that she was the registered proprietor of the Suit Property and stated that in 2019, she intended to subdivide it among her children. A friend, Elizabeth, assisted her to get a surveyor, who was to be compensated with a plot measuring 50 by 100 feet. The surveyor later informed her that he had found a purchaser willing to pay Kshs. 1,000,000, and the parties proceeded to THIKA ELC APPEAL NO. E018 OF 2024 (JUDGMENT) Page 3

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an advocate’s office where a sale agreement was executed. She maintained that she received only Kshs. 110,000 and that the balance was never paid. She also stated that the subdivision was never completed. In cross-examination she confirmed that she signed the sale agreement but stated that its contents were not read to her. 9. The trial court framed two issues: 10. (i) whether there was a sale agreement between the parties; and (ii) whether the Plaintiff was entitled to the reliefs sought. It found that a Sale Agreement existed, relying on the evidence of PW1 and PW2, the documentary evidence and the Appellant’s own acknowledgement of the transaction. It found that Kshs. 650,000 had been paid towards the transaction. On specific performance, it relied on Gurdev Singh Birdi & Marinder Singh Ghatora v Abubakar Madhubuti, Civil Appeal No. 165 of 1996, and Amina Abdulkadir Hawa v Rabinder Nath Anand & another [2012] eKLR, found that the Respondent was ready and willing to pay the balance, and granted specific performance subject to the payment of Kshs. 150,000 within thirty days. The Appeal 11. Aggrieved, the Appellant preferred this appeal on the following grounds, which I paraphrase without losing their substance: (i) The learned Principal Magistrate erred by writing the judgment by reference only to the original Plaint and Defence, ignoring THIKA ELC APPEAL NO. E018 OF 2024 (JUDGMENT) Page 4

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the Amended Plaint and Amended Defence, thereby framing the wrong issues and arriving at the wrong conclusions and orders; (ii) The learned Principal Magistrate erred in failing to consider and make a finding on the absence of the Land Control Board’s consent and its effect on the agreement for sale, although the issue was raised in both the Defence and the Amended Defence and canvassed in the Defendant’s submissions; (iii) The learned Principal Magistrate erred in treating the purchase price of the 1/8 acre as Kshs. 800,000 instead of Kshs. 1,000,000, confusing the price in the surveyor’s agreement with that in the agreement between the Plaintiff and the Defendant, thereby arriving at a wrong balance; (iv) The learned Principal Magistrate erred in admitting an agreement for sale on which no stamp duty had been paid; and (v) The judgment was against the weight of the evidence. 12. The Appellant prays that the appeal be allowed, that the Respondent’s prayer for specific performance be dismissed and that the judgment of the trial court be set aside and substituted with judgment against the Appellant for a refund of Kshs. 110,000 to the Respondent, with no order as to costs. SUBMISSIONS The Appellant’s submissions THIKA ELC APPEAL NO. E018 OF 2024 (JUDGMENT) Page 5

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13. The appeal was canvassed by way of written submissions. The Appellant’s submissions, dated 28th February 2025, were highlighted by Mr. Njau, learned counsel for the Appellant, on 8 th July 2025. He reiterated the grounds of appeal and submitted that because the trial court referred only to the original pleadings, it framed the wrong issues, did not consider the question of refund raised in the Amended Plaint and overlooked the absence of Land Control Board consent, which he termed crucial. In his view, an order of specific performance was untenable in the circumstances. 14. On the third ground, counsel submitted that there were two agreements before the trial court: one between the Appellant and the Respondent at a price of Kshs. 1,000,000 and another between the Appellant and Mr. Mulwa at Kshs. 800,000, relating to a different portion. The trial court, he said, confused the two and arrived at a balance of Kshs. 150,000 instead of Kshs. 350,000. Even on the trial court’s own reasoning, the balance ordered should have been Kshs. 350,000. 15. On the fourth ground, counsel submitted that stamp duty had not been paid on the sale agreement as required by the Stamp Duty Act and that the agreement was therefore inadmissible. He urged the court to dismiss the prayer for specific performance and to substitute an order for the refund of Kshs. 110,000, which the Appellant admits having received. Counsel relied on several authorities, which I have considered. THIKA ELC APPEAL NO. E018 OF 2024 (JUDGMENT) Page 6

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The Respondent’s submissions 16. The Respondent filed written submissions dated 23rd March 2025, which Mr. Charagu, learned Counsel for the Respondent highlighted on 19th January 2026. Counsel submitted that the dispute arose from a sale agreement dated 23rd April 2019, which, the Appellant signed voluntarily as vendor in the presence of a witness, Elizabeth Wambui, who also signed it. The agreement was prepared by an advocate, and the Appellant signed every page. 17. Counsel submitted that the only real dispute was the amount paid on execution; the Appellant states it was Kshs. 110,000, while the agreement records Kshs. 500,000. The Appellant di not claim to be illiterate. Her witness statement was in English and signed by her, so she must have understood the agreement. Counsel pointed to page 71 of the Record of Appeal, where in cross-examination the Appellant acknowledged being given money when she signed the agreement, and to the evidence of the advocate who drew the agreement. 18. On Land Control Board consent, counsel submitted that it was the Appellant’s duty, having been paid, to obtain the consent and that the order of specific performance sought necessarily included obtaining that consent. He urged the court to uphold the judgment of the trial court and dismiss the appeal. The Appellant’s rejoinder THIKA ELC APPEAL NO. E018 OF 2024 (JUDGMENT) Page 7

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19. In a rejoinder, counsel for the Appellant maintained that the absence of consent was fatal and that, if the Appellant failed to seek consent, the Respondent was equally at liberty to apply for it. On the quantum of any refund, he reiterated that the trial court erred in relying on the agreement between the Appellant and the surveyor, that no receipt was produced to prove the sums allegedly paid and that it could not be assumed that the Appellant was literate. He urged the court to allow the appeal. Analysis and Determination 20. This being a first appeal, I am conscious of this court’s duty to re- evaluate the evidence before the trial court and to arrive at its own independent conclusions, bearing in mind that it neither saw nor heard the witnesses and giving due allowance for that. The principle was stated in the now well-known case of Selle & another v Associated Motor Boat Company Limited & others [1968] EA 123. 21. Mativo J (as he then was) in Mursal & another v Manese (suing as the legal administrator of Dalphine Kanini Manesa) (Civil Appeal E20 of 2021) [2022] KEHC 282 (KLR) (6 April 2022) put it thus: “A first appellate court is mandated to re-evaluate the evidence before the trial court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first THIKA ELC APPEAL NO. E018 OF 2024 (JUDGMENT) Page 8

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appellate court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand.” 22. The learned Judge further emphasised that: “A first appellate court is the final court of fact ordinarily and therefore a litigant is entitled to a full, fair, and independent consideration of the evidence at the appellate stage. Anything less is unjust. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard on both questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. While considering the scope of Section 78 of Civil Procedure Act, a court of first appeal can appreciate the entire evidence and come to a different conclusion.” 23. Having considered the record, the grounds of appeal and the rival submissions, I find that the following issues arise for determination: (a) Whether the trial court erred by determining the suit on the original, rather than the amended, pleadings and with what consequence; (b) Whether the sale agreement was inadmissible for want of stamp duty; THIKA ELC APPEAL NO. E018 OF 2024 (JUDGMENT) Page 9

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(c) What sums the Respondent proved he had paid under the agreement; (d) Whether the transaction was void for want of the consent of the Land Control Board and, if so, whether specific performance could issue; (e) Whether the trial court erred in computing the balance of the purchase price; and (f) What orders ought to issue. Issue (a): The amended pleadings 24. It is settled practice that when a party amends a pleading, the additions are underlined and the deletions struck through so that the changes are apparent on the face of the document. It is equally settled that once a pleading is amended, the amended version becomes the operative pleading, and the original no longer defines the issues for trial. The Court of Appeal restated this in Coastal Bottlers Limited v Acqualine Distributors Limited (Civil Appeal E067 of 2021) [2024] KECA 1806 (KLR) (20 December 2024), adopting the dictum in Warner v Sampson [1959] 1 QB 297 that once pleadings are amended, what stood before the amendment no longer defines the issues to be tried. A trial court is therefore obliged to determine a suit on the amended pleadings. 25. Because this is a first appeal, I have examined the amended pleadings alongside the original ones to see whether, on a fresh evaluation, the outcome would differ. The original Plaint is at page 3 of THIKA ELC APPEAL NO. E018 OF 2024 (JUDGMENT) Page 10

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the Record of Appeal and the Amended Plaint at pages 38 to 39. The only amendment is in the prayers, which now include the following alternative prayer: “aa. In the alternative, this Court do order refund of KES 650,000/= together with interests thereof and damages for breach of contract.” 26. The Statement of Defence is at page 29 of the Record of Appeal and the Amended Defence at page 41. The amendment inserted paragraphs 6(a) and 6(b), which read: “6(a) The Defendant denies having instructed the Plaintiff to pay Benedict Mulwa or any other person sum of Kshs. 140,000/= or any other sum or at all and puts the Plaintiff to strict proof thereof.” “6(b) The Defendant denies having received any other sum except the sum of Kshs. 110,000/- admitted in paragraph 3 hereof and further denies that the Plaintiff is entitled to recover the sum of 650,000/= interests or any damages.” 27. Paragraph 3 of the Defence, which is common to both versions, provides: “3) The Defendant denies having received the sum of Kshs. 500,000/= from the Plaintiff and puts the Plaintiff to the strict proof thereof but avers that she only received Kshs. 110,000 after signing of the sale agreement.” THIKA ELC APPEAL NO. E018 OF 2024 (JUDGMENT) Page 11

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28. Two points emerge. First, the amendments did not introduce the question of Land Control Board consent. Paragraph 6 of both the original and the amended Defence pleads, without variance, that “the agreement is null and void for want of consent of the land board.” The contention that the trial court overlooked this issue because it ignored the amendments is therefore not correct. The issue was squarely before the trial court whichever version of the Defence it read. The trial court’s failure to determine it is a separate error, which I address under issue (d). 29. Secondly, the amendments did introduce new matters, namely the alternative prayer for a refund, the Appellant’s denial that she authorised the payment of Kshs. 140,000 to Benedict Mulwa, and her denial of liability for any sum beyond Kshs. 110,000. The judgment does not engage with any of these. To that extent, the trial court determined the suit on pleadings that were no longer operative and left live issues undetermined. This was a misdirection. However, because this court is empowered under Section 78 of the Civil Procedure Act to determine the matter finally on the record, the omission is curable at this stage. I proceed to determine those issues on the evidence, and ground (i) succeeds to that extent. Issue (b): Admissibility of the sale agreement for want of stamp duty THIKA ELC APPEAL NO. E018 OF 2024 (JUDGMENT) Page 12

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30. Section 19(1) of the Stamp Duty Act provides that, subject to subsection (3) and to sections 20 and 21, no instrument chargeable with stamp duty shall be received in evidence in civil proceedings unless it is duly stamped. 31. The bar is not absolute. Section 19(3) sets out the procedure a court should follow when an unstamped instrument is tendered, namely impounding the document and forwarding it to the Collector, and section 20 allows stamping out of time on payment of the duty and penalty. The want of stamp duty is a fiscal defect that the Act itself makes curable. It does not render the underlying transaction void. See Landmerk International Properties Limited v Anne Wangari Munene & another, Thika ELC No. E087 of 2021 (22 March 2022), where Eboso J held that such an instrument “is inadmissible and will remain inadmissible until stamp duty is assessed by the Collector of Stamp Duty and duly paid.” 32. The record shows that the sale agreement was produced by the Respondent during his examination-in-chief. Whatever the position on its formal admissibility, three matters are decisive. First, the Appellant does not dispute the existence of the agreement. She admitted in her evidence that she signed it at the advocate’s office and her own prayer on appeal for a refund of Kshs. 110,000 is founded on it. 33. Secondly, the fact of the agreement and of the payment of Kshs. 500,000 was independently proved by the oral evidence of PW2 and THIKA ELC APPEAL NO. E018 OF 2024 (JUDGMENT) Page 13

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PW3, which does not depend on the document. Thirdly, as I find below, the transaction was void for a reason unconnected with stamp duty, so the question of enforcing the instrument does not arise. 34. In the circumstances, even if the trial court ought to have impounded the agreement under Section 19(3), that irregularity did not occasion a miscarriage of justice. Ground (iv) fails. The Respondent, or the Appellant as the case may be, remains liable to the Collector for any duty and penalty payable on the instrument. Issue (c): What sums did the Respondent prove he paid? 35. The burden of proving payment lay on the Respondent under Sections 107 to 109 of the Evidence Act, to the standard of a balance of probabilities. 36. Kshs. 500,000 was paid on execution of the sale agreement . The sale agreement records the payment and acknowledges receipt of this sum. PW2, the advocate who drew and witnessed the agreement, testified that the money was paid to the Appellant in his presence and that she acknowledged receiving it. PW3 corroborated this. Their evidence was not shaken in cross-examination. Against this, the Appellant offered only a bare denial. She did not claim to be illiterate, she signed each page of the agreement and she conceded in cross-examination at page 71 of the Record that she was given money on signing. THIKA ELC APPEAL NO. E018 OF 2024 (JUDGMENT) Page 14

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37. Under Sections 97 and 98 of the Evidence Act, where the terms of a transaction have been reduced into writing, oral evidence may not be adduced to contradict them except to prove matters such as fraud, mistake or want of consideration. The Appellant pleaded none of these and her suggestion that the agreement was not read to her is contradicted by PW2. I find that the payment of Kshs. 500,000 to the Appellant was proved. 38. Kshs. 10,000 further payments. PW1’s evidence of this payment was not specifically challenged and the Appellant herself acknowledged receiving sums beyond the initial payment. I am satisfied that it was proved on a balance of probabilities. 39. Kshs. 140,000 paid to the surveyor. This sum was not paid to the Appellant. It was paid to a third party, Mr. Benedict Mulwa, and the Amended Defence specifically denied that the Appellant authorized the payment. It was therefore incumbent on the Respondent to prove that the payment was made at the Appellant’s request or on her behalf, or that it discharged an obligation owed by her under the agreement. The agreement placed on record does not, so far as I can discern, impose on the purchaser any obligation to pay the surveyor on the vendor’s account. 40. PW3 could not say how much the surveyor was paid or by whom it was authorized, and the Appellant’s uncontroverted evidence was that the surveyor was to be compensated by being given a plot. The trial THIKA ELC APPEAL NO. E018 OF 2024 (JUDGMENT) Page 15

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court did not interrogate this issue at all. I find that the Respondent did not prove that the Kshs. 140,000 was paid to, or for the benefit of, the Appellant. This finding does not affect any claim the Respondent may have against the surveyor. 41. Accordingly, I find that the Respondent proved that he paid the Appellant a total of Kshs. 510,000 under the agreement. The trial court’s finding that Kshs. 650,000 was paid towards the transaction, made without regard to paragraph 6(a) of the Amended Defence, cannot stand. Issue (d): Land Control Board consent and specific performance 42. Section 6(1) of the Land Control Act provides, in material part that: “Each of the following transactions, that is to say— (a) the sale, transfer, lease, mortgage, exchange, partition or other disposal of or dealing with any agricultural land which is situated within a land control area; (b) the division of any such agricultural land into two or more parcels to be held under separate titles … is void for all purposes unless the land control board for the land control area or division in which the land is situated has given its consent in respect of that transaction in accordance with this Act.” 43. Section 8(1) requires that an application for consent be made to the appropriate board “within six months of the making of the agreement for THIKA ELC APPEAL NO. E018 OF 2024 (JUDGMENT) Page 16

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the controlled transaction by any party thereto”, with a proviso that the court may, notwithstanding the expiry of that period, extend it where it considers that there is sufficient reason to do so. Section 7 provides that where money has been paid in the course of a controlled transaction that becomes void under the Act, it “shall be recoverable as a debt by the person who paid it from the person to whom it was paid, but without prejudice to section 22.” 44. The transaction here was the sale of a portion of the suit property, which necessarily entailed its subdivision. It was not disputed before the trial court, nor on appeal, that the Suit Property is agricultural land within a land control area. Indeed, the Respondent’s submission that it was the Appellant’s duty to obtain consent presupposes that consent was required. It is common ground that no application for consent was ever made. The agreement was made on 23 rd April 2019 and the sixmonth window for seeking consent closed in October 2019. No application for extension of time under the proviso to Section 8(1) was made, whether before the trial court or before this court. 45. The Respondent’s argument that the obligation to seek consent lay on the Appellant does not assist him. Section 8(1) permits the application to be made “by any party” to the transaction. The Respondent was as competent to apply as the Appellant was, and as a purchaser who had paid part of the price he had every incentive to do so. THIKA ELC APPEAL NO. E018 OF 2024 (JUDGMENT) Page 17

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46. That is not, however, the end of the inquiry. The Supreme Court in Shah & 7 others v Mombasa Bricks & Tiles Limited & 5 others [2023] KESC 106 (KLR) held, at paragraph 78, that a constructive trust “is imposed by law whenever justice and good conscience require it” and that “a constructive trust can be imported into a land sale agreement to defeat a registered title.” The Court of Appeal has applied that principle to controlled transactions for which no consent was obtained, holding that a constructive trust may arise and operate as an overriding interest notwithstanding Section 6 of the Land Control Act: 47. I am alive to the line of authority, led by the Court of Appeal in Macharia Mwangi Maina & 87 others v Davidson Mwangi Kagiri [2014] eKLR; Willy Kimutai Kitilit v Michael Kibet [2018] eKLR; Aliaza v Saul (Civil Appeal 134 of 2017) [2022] KECA 583 (KLR); and Diasproperty Limited & 5 others v Githae & 10 others [2024] KECA 318 (KLR) holding that in appropriate cases the absence of consent does not defeat an equitable claim founded on a constructive trust or proprietary estoppel. 48. Most recently, in Mutie v Maitha (Civil Appeal 66 of 2020) [2026] KECA 1540 (KLR) (31 July 2026), the Court of Appeal (Kimaru, Njuguna and Okello, JJ.A.) allowed a second appeal from a decision of this Court which had declared a 1991 sale void for want of consent and ordered a refund of the purchase price with interest. The purchaser had paid the full price of Kshs. 45,000 and had been in possession since 1991. The Court observed, at paragraph 19, that “one need not be in actual THIKA ELC APPEAL NO. E018 OF 2024 (JUDGMENT) Page 18

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physical possession and occupation of the land to prove a trust in land”, citing George Mbiti Kiebia & another v Isaya Theuri M’lintari & another [2014] KECA 341 (KLR). It concluded, at paragraphs 26 and 27, that: “…a constructive trust was created when the respondent received the purchase price and gave possession of the suit property to the appellant and her late husband… We therefore take the position that the respondent had put the appellant and her husband in possession of the suit property with the intention that he was to transfer the property to them, and as such, a constructive trust having been created, the respondent could not renege.” 49. The Court cancelled the vendor’s title and directed that a new title issue to the purchaser’s widow. That decision binds this Court and I have considered with care whether it governs this appeal. 50. Two things follow from it. First, the purchaser in Mutie had counterclaimed for specific performance and adverse possession, and the constructive trust was urged on appeal. I therefore do not rest my decision on the Respondent’s failure to plead a constructive trust, although I note that he did not invoke the doctrine at any stage, whether in his pleadings, at the trial, or in his submissions on this appeal, where his case was simply that the duty to obtain consent lay on the Appellant. 51. Secondly, possession is not an indispensable ingredient. The question, in the words of the Supreme Court in Shah, is whether on the THIKA ELC APPEAL NO. E018 OF 2024 (JUDGMENT) Page 19

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whole of the evidence justice and good conscience require that the Appellant be treated as holding the portion in trust for the Respondent. 52. In my view they do not and Mutie is distinguishable on its facts. There, the purchaser had fully performed his side of the bargain. The vendor had put him in possession with the intention of transferring the land and the purchaser’s family occupied it for more than a decade. The vendor then registered the land in his own name and sought to undo the sale by returning a price paid in 1991. 53. It was the vendor’s retention of both the price and the land that equity would not countenance. The present case differs in every material respect. The Respondent proved payment of Kshs. 510,000, about half of the agreed price, and the balance of Kshs. 490,000 was neither paid nor tendered. There was no evidence that the Appellant placed the Respondent in possession of the portion, or that he occupied, fenced or developed it. The portion was never excised. Although a mutation was produced, the subdivision was never completed and no separate title exists for the portion claimed. The suit was filed within two years of the agreement. The transaction remained executory on both sides. 54. Restitution moreover, does not allow the Appellant to profit from her default, which was the mischief that concerned the Court in Mutie, where a refund of the 1991 price three decades later was plainly inadequate. Here, Section 7 of the Land Control Act restores to the Respondent every shilling he proved he paid to the Appellant, together with interest, and THIKA ELC APPEAL NO. E018 OF 2024 (JUDGMENT) Page 20

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the Appellant does not keep both the land and the price. Justice and good conscience require no more. I find that no constructive trust arose in favour of the Respondent. 55. The consequence is that the agreement became void for all purposes under Section 6(1) of the Land Control Act. The order of specific performance enforced the contract itself, not any equitable interest arising outside it, and a court cannot decree specific performance of a void contract. Nor can it order a party to procure a statutory consent that only the Board, in the exercise of its independent discretion, may grant, still less where the statutory period for applying has lapsed and no extension has been sought. The trial court did not address this issue at all, although it was pleaded and canvassed. That was an error of law going to the root of the relief granted. Ground (ii) succeeds, and the order for specific performance must be set aside. 56. I would add that, even on its own terms, the order of specific performance could not stand. As the trial court correctly noted, citing Gurdev Singh Birdi, a purchaser seeking specific performance must show that he has performed, or is ready and willing to perform, his essential obligations. The trial court made that finding on the basis of a balance of Kshs. 150,000, which, as I find below, was erroneous. The Respondent did not demonstrate that he had tendered, or was able to pay, the true balance. Issue (e): The balance of the purchase price THIKA ELC APPEAL NO. E018 OF 2024 (JUDGMENT) Page 21

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57. The agreement between the parties, as the Appellant, the Respondent and PW2 all confirmed, was for a consideration of Kshs. 1,000,000. The trial court’s figure of Kshs. 150,000 can only be arrived at by deducting Kshs. 650,000 from Kshs. 800,000, which is the price stated in the separate agreement between the Appellant and Mr. Mulwa concerning a different portion. That was a misapprehension of the evidence. Had the agreement been valid, the balance would have been Kshs. 490,000 on my findings under issue (c), or Kshs. 350,000 on the trial court’s own finding of the amount paid. Ground (iii) succeeds, although in view of my findings on issue (d) nothing further turns on it. Issue (f): The appropriate orders 58. Having found that the transaction was void, the Respondent’s remedy lies under Section 7 of the Land Control Act, which entitles him to recover as a debt the money he paid to the Appellant. That remedy coincides with the alternative prayer in the Amended Plaint, which the trial court did not consider. The Appellant’s offer to refund only Kshs. 110,000 is not supported by the evidence. The sum recoverable is Kshs. 510,000. 59. The Respondent has been kept out of his money since 2019, while the Appellant has had its use. Under Section 26 of the Civil Procedure Act, he is entitled to interest. Since the sum is recoverable as a debt, I award interest at court rates from the date of filing of the suit, 16 th March 2021, THIKA ELC APPEAL NO. E018 OF 2024 (JUDGMENT) Page 22

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until payment in full. No proper basis was laid for general damages for breach of a contract that was void by operation of statute, and I decline to award them. 60. On costs, Section 27 of the Civil Procedure Act provides that costs follow the event unless the court for good reason orders otherwise. The appeal has succeeded in part. The Respondent nonetheless succeeds on his alternative claim for a refund and the Appellant’s denial of the sums she received made the litigation necessary. In the circumstances, the Respondent shall have the costs of the suit before the trial court and the Appellant shall have the costs of this appeal. Disposition 61. For the foregoing reasons, the appeal is partially allowed, and I make the following orders: (i) The Judgment of the trial court delivered on 25th January 2024 in Githunguri MELC No. 11 of 2021 is hereby set aside. (ii) The Respondent’s prayer for an order compelling the Appellant to transfer a portion measuring 1/8 of an acre out of land parcel Githunguri/Kimathi/248 and to execute THIKA ELC APPEAL NO. E018 OF 2024 (JUDGMENT) Page 23

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the transfer documents is dismissed, the agreement for sale being void for want of the consent of the Land Control Board under Section 6(1) of the Land Control Act; (iii) The judgment is substituted with an order that Appellant refunds the Respondent the sum of Kshs. 510,000, together with interest at court rates from 16th March 2021 until payment in full; (iv) The Respondent’s claim for Kshs. 140,000 paid to the surveyor and for damages for breach of contract, is dismissed, without prejudice to any claim the Respondent may have against third parties in respect of the Kshs. 140,000; (v) The Respondent shall have the costs of the suit in the trial court; and (vi) The Appellant shall have the costs of this appeal. Dated, signed and delivered virtually at Malindi this 28 th day of September 2026. …………………… J. M ONYANGO JUDGE In the presence of: 1. Mr.Njau for the Appellant THIKA ELC APPEAL NO. E018 OF 2024 (JUDGMENT) Page 24

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2. Mr. Chiragu for the Respondent . Court Assistant: Happy. THIKA ELC APPEAL NO. E018 OF 2024 (JUDGMENT) Page 25

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