[2017] KEELC 748 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KISUMU

ELC CASE NO.15 OF 2017

BOB MARSELLUS OILE .........................................................................................PLAINTIFF

VERSUS

JOSEPH OKELO ODEYO ..........................................................................................DEFENDANT

JUDGMENT

1. Bob Marsellus Oile, the Plaintiff, filed this suit against Joseph Okelo Odeyo, the Defendant, through the plaint dated 7th November 2013 seeking for Ksh.300,000/= with interest from 8th November 2010 and costs. The Plaintiff avers that the Ksh.300,000/= was the part payment under the agreement for sale of land dated 8th November 2010 which the Defendant has frustrated.

2. Theclaim is denied by the Defendant through his statement of defence dated 3rd December 2013. The Defendant avers that the performance of the sale agreement was frustrated by the succession cause challenges which he has now surmounted as the grant will be confirmed soon.

3. The hearing of the suit took place on the 12th June 2017 with M/S Alinatwe advocate, appearing for the plaintiff and the Defendant in person. The Plaintiff testified as PW1 while the Defendant testified as DW1.

4. The following are the issues for the determination by the court;

a) Who between the Plaintiff and Defendant is in breach of their written sale agreement dated 8th November 2010?

b) Whether the deposit paid by the Plaintiff to the Defendant was Ksh.3000,000/= or 250,000/=.

c) Who pays the costs.

5. The court has carefully considered the pleadings filed by both parties, oral evidence adduced and come to the following findings:

a) That the Plaintiff and Defendant are in agreement that on the 8th November 2010, they entered into a land sale agreement under which the Defendant agreed to sell to the Plaintiff one hectare of land parcel Kisumu/Korando/2156 at Ksh.2,000,000/=.

b) That their agreement was reduced into writing and under it the Defendant acknowledged receipt of a deposit of Ksh.300,000/= under clause 2 of the agreement.

c) That as of the time the parties entered into the sale agreement, the land was in the name of Odeyo Nyangare, the deceased father to the Defendant. The Defendant did not have capacity to dispose off the properties of the estate of his father without first obtaining a confirmed grant in view of the provisions of Sections 2, 45, 71 and 82 of the Law of Succession Act Chapter 160 of Laws of Kenya.

d) That the sale agreement between the parties did not receive the statutory consents from the Land Control Board within the six months period as required under Section 6 and 8of the Land Control Act Chapter 302 of Laws of Kenya and has therefore become void.

e) That according to Section 7 of the Land Control Act the Kshs.300,000/= paid by the Plaintiff to the Defendant under the sale agreement which become void after six months without a consent from the Land Control Board being obtained is recoverable. That the recovery process must be initiated before the expiry of six years as provided under Section 4(1)(a) of the Limitation of Actions Act Chapter 22 of Laws of Kenya.

(f) That other than the Defendant who could not perform his part of the agreement as he did not have a confirmed grant, the Plaintiff also failed to prove his readiness to pay the balance of the purchase price, that is Ksh.1,700,000/=. The Defendant’s testimony that the Plaintiff had informed him of his inability to raise that amount after three months of the sale agreement and that he proposed that he be given a portion of land fitting the money paid was not contested.

(g) That in view of the finding in (f) above, it become obvious that both parties were unable to perform their respective obligations under the sale agreement and are equally responsible for frustrating it.

(h) That the Defendant has shown willingness to renegotiate the agreement with the Plaintiff now that he is likely to have the grant confirmed. The Defendant has also indicated, as an alternative, that if given time, he would identify another purchaser for the portion he was selling to the Plaintiff so as to get funds to refund the amount he received.

6. That in view of the foregoing the court enters judgment for the Plaintiff against the Defendant in the following terms;

(a) That the performance of the sale of land agreement dated 8th November 2010 has been frustrated by acts and omissions of both the Plaintiff and Defendant.

(b) That the Defendant do refund to the Plaintiff Ksh.300,000/= (three hundred thousand), being the deposit paid under the said voided agreement, with interest at court’s rate from the date of filing of the suit.

(c) That each party bears his own costs.

Orders accordingly.

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

DATED AND DELIVERED THIS 8TH DAY OF NOVEMBER 2017

In presence of;

Plaintiff Absent

Defendant Present

Counsel Mr. Baganda for Alinatwe for the Plaintiff.

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

8/11/2017

8/11/2017

S.M. Kibunja Judge

Oyugi Court assistant

Mr Baganda for Alinatwe for Plaintiff

The Defendant present in person.

Court: The judgment dated and delivered in open court in presence of the Defendant and Mr. Baganda for Alinatwe for the Plaintiff.

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

8/11/2017