JUDGMENT
In 1979 Simon Odinga entered into an agreement of sale of his parcel of land Butsotso/Indangalasia/355 with Charles Sande. The entire parcel of land comprised 11.5 acres. The price agreed was Kshs 2,000 per acre.Charles Sand paid Kshs 23,000 on August 23, 1979. Later, the said agreement was altered by consent. The parcel of land was to be subdivided into two unequal portions one of which comprised 5.3 acres was now sold to Charles Sande at the same rate of the sub-division was approved by the Commissioner of Lands and the Municipal Council of Kakamega.The vendor then refused to carry the agreement through. Charles Sande sued Simon Odinga in the Resident Magistrate’s Court for specific performance of the agreement. The trial magistrate after considering the evidence, gave judgment for the plaintiff.
The defendant appealed to the High Court, Kakamega basing his appeal on trust and that the trial magistrate misdirected himself in decreeing specific performance when the refund of t…