[2016] KEELC 417 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KISUMU

ELC CASE NO. 102 OF 2015

HARJIT SINGAH PRUDUMAN …………………………………..PLAINTIFF

VERSUS

PAGE INVESTMENT CO.LTD....................................................DEFENDANT

JUDGMENT

1. Harjit Singah Pruduman, the Plaintiff, filed this suit against Page Investment Company Limited, the Defendant, through the plaint dated 5th May 2015 seeking for the following;

“a) a declaration that the plaintiff is the lawful registered owner of all that parcel of land known as Kisumu Municipality Block 11/164 and that the Defendant’s action of failing to give vacant possession of the suit land amounts to breach of contract upon the Plaintiff, and is therefore unlawful, illegal and amounts to interference with the Plaintiff’s property interest and hence an order of specific performance for vacant possession thereof.

b) Upon the Defendant giving vacant possession of the suit land, the Defendant either acting by themselves, servants and or agents be restrained by way of permanent injunction from further trespassing into and or in any other manner whatsoever interfering with land parcel number Kisumu Municipality Block 11/164.

c)The Defendant be condemned to pay special damages particularized in paragraph 22 liquidated damages for deprived user, destruction and other expenses incurred by the Plaintiff from the time of action arise to its mesne profits and interest on all sums awarded by the court at commercial rates conclusion (To be ascertained due course).

d) Costs of this suit and interest on a, b, & c.”

2. The Plaintiff avers that on or about 22nd August 2014 he entered into a sale agreement with the Defendant under which he purchased land parcel Kisumu Municipality/Block 11/164 for Ksh.10,000,000/=. That he paid the purchase price through a cheque to the Defendant’s director, Edwin Z.O. Odera, vide cheque No.001532 through Diamond Trust Bank. That the Defendant executed all the transfer documents in favour of the Plaintiff who got registered as proprietor and got title deed issued on the 31st August 2012. That in September 2012 the Plaintiff went to take possession of the suit land but found someone else in possession and occupation of the land. That the defendant’s failure to give the plaintiff vacant possession of suit land amounted to trespass as it denied him the right to exclusive occupation and enjoyment of the property and therefore the Defendant is in breach of the contract of sale. That the Defendant has failed to honour the demand notice and its failure to give him vacant possession is fraudulent, unlawful, illegal, breach of appurtenant proprietorship right and solely procured by collision between the Defendant and its agent to frustrate the contract. The Plaintiff demands Ksh.100,000/= “from 24th August 2012 until the date of the Plaintiff acquisition of vacant possession from the Defendant to the Plaintiff and or until the determination of this suit”. The Plaintiff also prays for special damages, loss of user and mesne profits against the Defendant.

3. The Defendant was reportedly served and affidavit of service sworn by Bernard Osewe on 29th July 2015 filed. The Plaintiff then applied for interlocutory judgment vides their letter dated 15th September 2015. The interlocutory judgment was entered on 16th September 2015 and the matter set down for formal proof on 23rd May 2016 when the Plaintiff testified as PW1. The Plaintiff told how he entered into a land sale agreement with the defendant, over the suit land and upon payment of the purchase price and execution of transfer documents by the defendant, he got registered as proprietor. He added that he is yet to take possession of the suit land as there are people on it and the Defendant has not removed them despite written demand. PW1 told how he has done letters to the Ministry of land to be assisted to get vacant possession. He therefore prayed that he be declared the owner of the land and that the people on the land be evicted as they entered onto the land after he bought it.

4. The counsel for the Plaintiff then filed the written submissions dated 24th June 2016 on the 5th July 2016.

5. The issues for determinations are as follows:

a) Whether the parties to the land sale agreement dated 22nd August 2012 [not 2014 as wrongly captured at paragraph 4 of the plaint] have performed their obligation thereunder.

b) Who is the registered proprietor of the land parcel Kisumu Municipality/Bloc 11/164.

c) Whether the Defendant is in breach of the terms of the sale agreement.

d) Whether the Plaintiff is entitled to any of the prayers sought.

6. The court has considered the pleadings contained in the plaint dated 5th May 2015, the oral evidence of the Plaintiff, documentary evidence adduced, written submissions by the counsel for the Plaintiff and come to the following findings;

a) That the Plaintiff and the Defendant, a limited liability company through its two directors namely Edwin Zakayo Otieno Odera and Eunice Akoth Okumu, entered into a written sale agreement dated 22nd August 2012 for the purchase of Land parcel, Kisumu Municipality/Block 11/164 at Ksh.10 million. That the purchase price was paid through cheque on 24th August 2012 in favour of Edwin Z.O. Odera reportedly a director of the Defendant.

b) That the Defendant executed all the necessary transfer documents and the Plaintiff was registered as proprietor on 31st August 2012 and certificate of lease in the names of the Plaintiff issued.

c) That though the pleadings seemed to suggest that the Defendant has not given the Plaintiff vacant possession of the suit land and hence was in breach, the Plaintiff was required to have confirmed the status of the land under clause 7. 2 and 7. 3 of the sale agreement which are in the following terms;

“7. 2. The property is sold in the condition it stands and the Vendor (Defendant) shall not be liable to repair, renew or improve the same. The purchaser (Plaintiff) confirms that its authorized representative(s) has inspected the property and have satisfied themselves as to the state of the property.

7. 3. That purchaser (Plaintiff) has inspected the property and the Vendor shall not be required to point out to the Purchaser (Plaintiff) the beacons, replace any beacons of the property or to that are missing or misplaced.”

d) That the above clauses shows that the Plaintiff had been shown the property and had inspected it and was therefore aware of its use and status at the time of executing the sale agreement.

e) That the sale was with vacant possession as captured in clause, 6. 1 of the agreement and the court takes it that the Defendant gave the Plaintiff vacant possession on completion of the sale agreement. That this conclusion is based on the Plaintiff own oral evidence in the last paragraph of his testimony where he stated the following;

“ I also pray that the people be evicted. The people entered onto the land after I bought it”.

That though the Defendant did not defend this suit, the court finds it had discharged its duty under the sale agreement including to ensure the Plaintiff was registered with the suit land and to give it vacant possession. That the Defendant cannot be held responsible for the eviction of any person who entered onto the suit land after the transaction between it and the Plaintiff had been completed unless the Plaintiff establishes that such person(s) have been placed there by the Defendant. That there is no evidence adduced to connect the person(s) who entered onto the suit land after the Plaintiff bought it with the Defendant.

f) That the Plaintiff did not enjoin the person(s) who have allegedly trespassed or occupied the suit land in this suit and the court cannot issue eviction orders against persons who have not been given an opportunity to be heard as to do so would be unconstitutional, unfair and unjust.

g) That the Plaintiff is already the registered proprietor of the suit land since 31st August 2012 and it would be superfluous for the court to issue declaratory orders that he was the lawfully registered owner in view of the provision of Section 26 (1) of the Land Registration Act No.3 of 2012. That it is however important to note that the Plaintiff registration is as always subject to the overriding interests as provided for under Section 28 of the Land Registration Act.

h) That if the Plaintiff has suffered any loss and damages, then the Defendant has not been the cause as the Defendant performed its obligation under the sale agreement of 22nd August 2012 timeously.

i) That the Plaintiff had at paragraph 24 of the plaint mentioned about loss of user and claimed for sh.100,000/= from 24th August 2012 till payment in full but did not indicate whether that amount was per day, week, month or year. That the Plaintiff had also at paragraph 25 of the plaint prayed for special damages, and mesne profits without particulars or evidence being adduced during the hearing. That as already held in (h) above, the Defendant is not responsible for any such loss, profits or damages that the Plaintiff may have suffered, as the Plaintiff has not proved any breach of contract attributed to the Defendant.

7. That in view of the foregoing the court find that the Plaintiff has failed to establish his case against the Defendant on a balance of probabilities. That the Plaintiffs suit is therefore dismissed with no order as to cost.

It is so ordered.

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

DATED AND DELIVERED THIS 19TH DAY OF OCTOBER 2016

In presence of;

Plaintiff Present

Defendant Absent

Counsel Mr M.M. Omondi for Omusundi for Plaintiff

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

19/10/2016

19/10/2016

S.M. Kibunja J

Oyugi court assistant

Mr Omondi M.M. for Omusundi for Plaintiff

Court: The Judgment dated and delivered in open court in presence of the Plaintiff and Mr. Omondi M.M for Omusundi for the Plaintiff.

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

19/10/2016