JUDGMENT OF THE COURT
1. This is an appeal from the judgment of the Environment and Land Court at Malindi (J. O. Olola, J.) dated the 21st day of September 2018. The background to the appeal is that, Musa Salim Chai, the (1st appellant herein), is the proprietor of a house standing on the Plot No. 69 (original No. 1412) Muyeye Water Project, Malindi, while the 2nd appellant (Salim Chai), the first appellant’s father, is the registered owner of the plot on which the house stands.
2. Sometime in the year 2007, the 2nd appellant granted the 1st appellant permission to construct a residential house on the said plot land for the 1st appellant’s use and benefit. The 1st appellant then proceeded to construct a rental house which he rented out to tenants on a monthly basis.
3. On or about 12th June 2012, the 1st appellant entered into an agreement with the respondent in which he borrowed a sum of Kshs.252,000/ from the respondent on the express condition that the 1st appellant shall surrender hi…