[2017] KEELC 862 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KITALE

LAND CASE NO. 44 OF 2016

ALBERT MWANGA KILINGA........................................PLAINTIFF

VERSUS

JUDITH MARTHA ONYANGO.............................1STDEFENDANT

CALVIN MOSES ODHIAMBO............................2NDDEFENDANT

CLEMENT OMONDI ONYANGO.......................3RD DEFENDANT

JUDGMENT

1. The plaintiff commenced this suit by way of a plaint dated 29/2/2016 which was filed on 2/3/2016. In that plaint he sought the following orders as against the defendants:-

(a) An order for specific performance against the defendants to effect transfer of two (2) acres of their entitlement in Bungoma/Naitiri/122 to the plaintiff.

(b) In the alternative, an order that Deputy Registrar of High Court to be empowered to execute all the documents and papers necessary for the effectual transfer of two (2) acres of the suit property to the plaintiff.

(c) In the alternative orders for refund of the current value of the 2 acres parcel.

(d) A permanent injunction against the defendants, their agents, legal representatives, workers or in any other person from interfering with the plaintiff’s right of possession, use and occupation of the suit property.

(e) Costs of the suit and interest at court rates.

(f) Any other relief this Honourable Court may be pleased to grant in the circumstances.

2. The 3rd defendant filed a memorandum of appearance on 31/3/2016. He also filed a defence on 12/5/2016.

3. The plaintiff sought judgement on 16/5/2016 against the 1st and the 2nd defendants for failure to enter appearance or file defence within the time stipulated in the Rules.

4. However, all the defendants never attended the hearing which took place on 26/9/2017. Only the plaintiff testified at the hearing.

5. The plaintiff’s case is that the defendants are the administrators of the Estate of one Shadrack Onyango; the plaintiff entered into a sale agreement with the 1st and the 2nd defendants in their capacity as administrators of the Estate of the late Shadrack Onyango; by that agreement the 1st and 2nd defendants agreed to sell two (2) acres to be hived off their entitlement in the deceased Shadrack Onyango’s Estate comprised in a parcel of land known as Bungoma/Naitiri/122 situated in Bungoma County.

6. When the parcel known as Bungoma/Naitiri/122 was subdivided, the defendants were registered as proprietors of Title No. Bungoma/Naitiri/2405. The defendant had paid the entire purchase price for the two (2) acres which was Kshs.480,000/=.

7. According to the plaintiff he was to be put into actual physical possession of the two (2) acres of the suit property after payment of the purchase price.The plaintiff pleads that despite fulfilling all his obligations under the sale agreement the defendants have refused or ignored to put the plaintiff into possession of the land or complete the sale transaction.

8. When the defendants failed to give him the physical possession of the land, a demand letter was issued from his advocate’s office. However when the plaintiff went to the defendants, the 1st defendant allowed him to cultivate the land but when he went there with a tractor ready to plough, the 2nd defendant chased him away.

9. A letter was written thereafter by the plaintiff’s advocate demanding a refund of the purchase price but up to the time of the hearing, the plaintiff had not received either physical possession of the land or the money. The plaintiff said that he had sold some other land in order to purchase the land the 1st and 2nd defendants were selling and now he does not have a placed to stay in.

10. The plaintiff prays for an order of specific performance against the defendant to effect the transfer of the two acres of land to him. In the alternative the plaintiff prays that the Deputy Registrar of the Court be empowered to execute the documents necessary for the effectual transfer of the two (2) acres to him. An alternative prayer for refund is included.

11. As stated earlier the suit is not defended by the 1st and 2nd defendants who sold the land to the plaintiff. Only the 3rd defendant filed his defence. The 3rd defendant denied being a party to the agreement. This was contained in his defence.

12. The plaintiff never outlined any role that the 3rd defendant may have played in the whole transaction. I find that he was not a party to the agreement. He never received the purchase price and he is not alleged to have refused the plaintiff entry into the premises as the 2nd defendant did.

13. I therefore find that the plaintiff’s claim can only be maintained against the 1st and 2nd defendants who never defended the suit. Indeed the sale agreement dated 7/5/2007 does not bear the 3rd defendant’s name.

14. The plaintiff has established his case against the 1st and 2nd defendants on a balance of probabilities. However the plaintiff has failed to establish any case against the 3rd defendant.

15. Considerable caution must be applied while dealing with a prayer for a remedy of specific performance which can be granted only in certain cases. In the case of Mukika Chai Dzombo vs Coast Development Authority (2014) e KLR, this court observed as follows:

“Instead, the Defendant is asking for specific performance of the contract. It is trite law that an order of specific performance can only succeed where a party shows that he has complied with all the terms of the contract, which the Defendant has not done. Specific performance is an equitable remedy that compels a party to complete a contract according to the precise terms agreed upon so that under the circumstances, justice will be done between the parties.”

16. There are certain conditions that were to be fulfilled by the parties. It is not clear whether they were fulfilled. The obtainance of the Land Control Board Consent was among these. Both parties have a role in ensuring the consent is obtained.

17. Without clear pleading on the part of the plaintiff and the 3rd defendant and in the light of the silence of the other defendants it is impossible to determine the status of such part of the transaction at the moment.

18. In the light of the foregoing I find that the most appropriate remedy in the circumstances would be a refund of the entire purchase price to the plaintiff.

19. I therefore enter judgement for the plaintiff against the 1st and 2nd defendants. I dismiss the case against the 3rd defendant with no orders as to costs.

20. Consequently I issue the following orders:-

(a) The 1st and 2nd defendants shall jointly and severally pay the plaintiff the sum of Kshs.480,000/= being the refund of the purchase price paid in respect of the agreement for the sale of two (2) acres out of Bungoma/Naitiri/2405 to the plaintiff.

(b) The 1st and 2nd defendant shall bear the costs of this suit.

(c) The plaintiff’s suit against the 3rd defendant is hereby dismissed with no orders as to costs.

(d) The plaintiff is hereby awarded interest on the sums in paragraphs (a) and (b) hereinabove at court rates from the date of judgment till payment in full.

It is so ordered.

Dated, signed and delivered at Kitale on this 9th day of October,2017.

MWANGI NJOROGE

JUDGE

9/10/2017

Before – Mwangi Njoroge Judge

Court Assistant – Isabellah

Mr. Waweru for the plaintiff

N/A for the defendant

COURT

Judgment read in open court in the presence of counsel for the plaintiff.

MWANGI NJOROGE

JUDGE

9/10/2017