[2017] KEHC 2739 (KLR)
The court found that the plaintiff had proved, on a balance of probabilities, that he paid the full purchase price of Kshs 230,000 for one acre of land to the defendant, as evidenced by written acknowledgments corroborated by witnesses. The defendant's denial of some payments was not credible, especially since the...
Source-derived case information.
- Citation
- [2017] KEHC 2739 (KLR)
- Parties
- Plaintiff: Edward Barasa Wanjala; Defendant: Gabriel Wapang’ana Kibiti
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 249 of 2013
- Procedural Posture
- Land Case / Judgment
- Outcome
- judgment for the plaintiff
- Legal Topics
- Sale of Land, Refund of Purchase Price, Specific Performance, Fraudulent Conveyance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Edward Barasa Wanjala
Plaintiff
Gabriel Wapang’ana Kibiti
Defendant
Procedural Posture
Land Case / Judgment
Legal Issues
- 1 Whether the defendant received the full purchase price of Kshs 230,000 for one acre of land from the plaintiff.
- 2 Whether the defendant is liable to refund the purchase price to the plaintiff after failing to transfer the land.
- 3 Whether the acknowledgments of payment produced by the plaintiff are genuine.
Ratio Decidendi
The court found that the plaintiff had proved, on a balance of probabilities, that he paid the full purchase price of Kshs 230,000 for one acre of land to the defendant, as evidenced by written acknowledgments corroborated by witnesses. The defendant's denial of some payments was not credible, especially since the disputed signatures appeared identical to those he admitted. The defendant failed to transfer the land and has since sold it to another party. The court held that the defendant is liable to refund the entire purchase price to the plaintiff with interest from the date of filing suit, regardless of the outcome of the related criminal proceedings, as the standards of proof differ...
Court Disposition
judgment for the plaintiff
Orders
- The defendant shall pay the plaintiff Kshs 230,000 with interest from the date of filing suit.
- The defendant shall pay the costs of the suit to the plaintiff.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA.
IN THE HIGH COURT OF KENYA AT BUNGOMA.
ENVIRONMENT AND LAND CASE NO. 249 OF 2013.
EDWARD BARASA WANJALA………………....…..PLAINTIFF
VERSUS.
GABRIEL WAPANG’ANA KIBITI……………….RESPONDENT
JUDGEMENT.
[1]. The Plaintiff claims a refund of Kshs 230,000/= being the purchase price of one (1) acre out of land Parcel Chwele/Bokoli/58. He claims that he paid this money by instalments, of Kshs 130,000/= on 3/4/2009, on 24/04/2009 Kshs 29,000/= and Kshs 18,000/=, on 18/11/2009 Kshs18,000/= and on 22/08/2010 Kshs35,000/= all totaling Kshs 230,000/=. He produced an acknowledgement of the same signed by himself and the defendant and other witnesses. He called Gerishon Sirengo who confirmed the acknowledgements and confirmed that he actually wrote the acknowledgements.
The defendant confirmed that an agreement for sale of one (1) acre out of his land Chwele/Bokoli 58 at an agreed consideration of Kshs 230,000/= was made. He agreed that on the first day he received Kshs 130,000/= then a payment of 29,000/= leaving a balance of 71,000/= which remains outstanding todate. He admits he signed for the payment of Kshs 130,000/= and Kshs 29,000 but denied having signed for the balance of Kshs 71,000/=. He called the acknowledgment for Kshs 18,000/= twice and Kshs 35,000/= a forgery. It is worth of note that all those payments are on the same page with his admitted payment of 29,000/=. The signatures to this payment to the naked and untrained eye look exactly the same. There are other witnesses too. The defendant has kept this money since 2009 nearly 8 years now. It is alleged that the defendant has since sold the land to somebody else. The defendant says he is willing to refund the amount he acknowledges with interests.
[2]. He did not have to wait for nearly 8 years to do so. The Plaintiff had to go to the Police to complain where upon the defendant was charged with obtaining by false pretence vide Bungoma CM Cr. Case No. 524 of 2012. The fact that the defendant was acquitted of a Criminal Case whose standard of proof is beyond reasonable doubt is no reprieve in a Civil Suit.
I find that the plaintiff has proved his case on a balance of probabilities. I find that the defendant owes the Plaintiff Kshs 230,000/= paid to him in 2009. He will pay back that money to the plaintiff with costs and interests from the filing of this suit.
It is so ordered.
Ruling read in Open Court in the presence of M/s Wanjala.
Dated at Bungomathis 4th day of October,2017.
S. MUKUNYA
JUDGE.
In the presence of:
Court Assistant: Chemutai/Joy
Ms Wanjala for Olonyi for the Plaintiff
Nanzushi for the defendant