[2015] KEHC 1050 (KLR)
The court found that the plaintiff had paid Kshs.18,087,000 to the 1st and 2nd defendants under a sale agreement for land. The contract was frustrated due to the existence of other interests and ongoing investigations, making transfer impossible. The defendants did not contest the application or dispute receipt of...
Source-derived case information.
- Citation
- [2015] KEHC 1050 (KLR)
- Parties
- Plaintiff: Action Rich Investment Company Ltd; Defendant: Joseph Otieno Onyango; Defendant: Evans Odera Nyakigo; Defendant: The Land Registrar Kisumu; Defendant: The Attorney-General
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 28 of 2015
- Procedural Posture
- Civil Case / Ruling on Interlocutory Application for Security/refund
- Outcome
- Application allowed.
- Legal Topics
- Sale of Land, Specific Performance, Security for Refund, Contract Frustration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Action Rich Investment Company Ltd
Plaintiff
Joseph Otieno Onyango
Defendant
Evans Odera Nyakigo
Defendant
The Land Registrar Kisumu
Defendant
The Attorney-General
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Application for Security/refund
Legal Issues
- 1 Whether the 1st and 2nd defendants should be ordered to refund the sum of Kshs.18,087,000 to the plaintiff pending determination of the suit.
- 2 Whether the court should order the 1st and 2nd defendants to furnish security or provide a bank guarantee for the said sum.
- 3 Whether the defendants' failure to contest the application entitles the plaintiff to the orders sought.
Ratio Decidendi
The court found that the plaintiff had paid Kshs.18,087,000 to the 1st and 2nd defendants under a sale agreement for land. The contract was frustrated due to the existence of other interests and ongoing investigations, making transfer impossible. The defendants did not contest the application or dispute receipt of the funds. In these circumstances, the court held that the only recourse was to order the refund of the sum paid or, in the alternative, require the defendants to provide a bank guarantee for the amount. The court emphasized that the defendants' silence and failure to object to the application justified granting the orders sought by the plaintiff.
Court Disposition
Application allowed.
Orders
- The 1st and 2nd defendants jointly and severally to refund within 7 days from the date of the ruling the sum of Kshs.18,087,000 to the plaintiff.
- Alternatively, the 1st and 2nd defendants to deposit within 7 days a bank guarantee from a reputable commercial bank for the sum of Kshs.18,087,000.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
CIVIL CASE 28 OF 2015
ACTION RICH INVESTMENT COMPANY LTD...............PLAINTIFF/APPLICANT
VERSUS
JOSEPH OTIENO ONYANGO ….........................1ST DEFENDANT/RESPONDENT
EVANS ODERA NYAKIGO..................................2ND DEFENDANT/RESPONDENT
THE LAND REGISTRAR KISUMU.......................3RD DEFENDANT/RESPONDENT
THE ATTORNEY-GENERAL...............................4TH DEFENDANT/RESPONDENT
R U L I N G
1. The application by the plaintiffs dated 7th July 2015 prays for the following orders:
1. THAT this matter be certified urgent and service of this application be dispensed with in the first instance owing to the urgency hereof;
2. THAT the court be pleased to order the 1st and 2nd defendants to furnish security by depositing into this honorable court the sum of Kshs.18. 087,000/= or to produce and place at the disposal of the honourable court, or in a joint interest earning account in the names of the 1st and 2nd defendants and plaintiff's advocates pending the hearing and determination
3. THAT the court be pleased to order the 1st and 2nd defendants to furnish security by depositing into this Honourable Court the sum of Kshs.18,087. 000/= or to produce and place at the disposal of this Honourable court, or in a joint interest earning account in the names of the 1st and 2nd defendants' and plaintiff's advocates pending the hearing and determination of this suit;
THAT in the alternative, the 1st and 2nd defendants give such acceptable security or guarantee commensurate to Kshs.18,087,000/= acceptable to the plaintiff in such prescribed form and manner from a reputable bank or banks licensed to conduct the business of banking in Kenya and to place the same under the control of this honourable court pending the hearing and determination of this suit
THAT the 1st and 2nd defendants do disclose to this honorable court their business and assets in Kenya and the same to be conditionally attached until the determination of the suit.
THAT in default of furnishing such sufficient, security deposit or bank guarantee as shall be ordered by this Honourable court the 1st and 2nd defendants do show cause why all sums of money due to them from business and any assets should not be attached by the court pending judgment by this honourable court and that costs be provided for;
THAT this honourable court be pleased to issued such further orders as may deem just; and
THAT the costs of this application be provided for.
2. The affidavit of PETER AKEYO sworn on the even date clearly shows that the plaintiffs entered into a sale agreement dated 22th September, 2014 for the purchase of land parcel No.KISUMU/DAGO/3527 for a total purchase consideration of Kshs.21,870,000/= and todate the plaintiffs have paid a total sum of Kshs.18,087. 000 a fact not disputed by the defendants.
3. Apparently the contract was frustrated when the plaintiffs discovered that the suit property had other interested players and that it was not possible to have it transferred to the plaintiffs The applicants then put a caution over the same only to realise that there was already a caution by another party and that it was a subject of police investigation.
4. The respondents according to the documents on record promised to pay back the purchase consideration but it appears that they have not done so to-date.
5. As stated earlier the defendants did not contest this application. Clearly they are not objecting to the fact that they have received the said sum of money.
6. Consequently I do find that the only recourse is for the court to allow the application on the following terms:
the 1st and 2nd defendant jointly and severally do refund within 7 days from the date herein the sum of Kshs,18,087,000 forthwith to the plaintiff.
Alternatively the defendants within 7 days from the date herein do deposit to this court a Bank Guarantee from reputable commercial bank for the sum of Kshs.18,087,000.
Costs of this application to the applicant.
Dated, signed and delivered this 1st day of December 2015
H. K. CHEMITEI
J U D G E