[2022] KEHC 1468 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISUMU

COMMERCIAL CASE NO. 6 OF 2019

HEIDI MURRAY............................PLAINTIFF

VERSUS

OKORE GIDEON OWISSO.....DEFENDANT

JUDGMENT

The Plaintiff, HEIDI MURRAY, is a resident of Seattle in the United States of America.

1. She has sued the Defendant, OKORE GIDEON OWISSO, seeking the following reliefs;

“(a) An amount of Kshs 19,100,000 (KSHS NINETEEN MILLION ONE HUNDRED THOUSAND ONLY) being money had and received by the defendant from the plaintiff through WELLS FARGO and WORLD REMIT MONEY TRANSFER, for the purposes of purchase of land and construction in respect of the suit parcels KISUMU/PANDPIERI/3148 and KISUMU/NYALENDA “B”/5181.

(b) Alternatively an attachment of the said suit properties KISUMU/ PANDPIERE/3148 and KISUMU/ NYALENDA “B”/5181 and sale of the same to recover the said amount of Kshs 19,100,000/= (KSHS NINETEEN MILLION ONE HUNDRED THOUSAND) plus interest at market rates.

(c) A sum equivalent to appreciation in value of the properties KISUMU/ PANDPIERI/3148 and KISUMU/NYALENDA “B”/5181 from the date of completion of construction (based on cost of construction) to estimated market value at the date of judgement.

(d) An amount of Kshs 500,000 (KSHS FIVE HUNDRED THOUSAND)plus interest being money had and received by the defendant for purposes of Visa application.

(e) Interest of the amounts claimed at court rates.

(f) Mesne Profits.

(g) General Damages.

(h) The costs of the suit.

(i) Any other such relief as the court deems fit.”

2. In his Defence, the Defendant expressly admitted that sometimes in July 2017, he met the Plaintiff when she was visiting Kenya, and the two of them became friends.

3. He also admitted that the said friendship later grew into a romantic affair.

4. The Defendant further admitted that during the Plaintiff’s second visit to Kenya, she moved into his house. However, he denied that the Plaintiff’s trust in him was emboldened by the fact that she moved into his house.

5. The Defendant denied the Plaintiff’s assertion, that she had hatched the idea of investing in real estate business, or that there was a mutual agreement that the Defendant would assist the Plaintiff to scout for a parcel of land which the Plaintiff would buy and develop.

6. And whilst the Plaintiff asserted that she had an agreement with the Defendant, that she would fund the purchase and development of the project, whilst the Defendant would be paid for his managerial work on the project: the Defendant said that the Plaintiff simply decided to voluntarily support him financially.

7. The two properties which are the subject matter of this case, were purchased using funds provided by the Plaintiff. However, the properties were registered in the Defendant’s name.

8. According to the Plaintiff, the reason for registering the properties in the Defendant’s name was that the Defendant had advised the Plaintiff that a foreigner could not own land in Kenya.

9. But the Defendant categorically denied ever having given such advice to the Plaintiff.

10. The Defendant asserted that the reason why the Plaintiff gave him financial support is because the two of them were lovers. He further explained that when the Plaintiff saw the pictures of the projects into which the Defendant had invested the money, she was motivated to continue to support the Defendant financially.

11. But the Plaintiff’s position, (as stated at paragraph 13 of the Plaint) was that she was motivated by the ongoing constructions;

“….. and had the urge to expand the developments ……….”

12. At paragraphs 15 and 16 of the Plaint, the Plaintiff asserted that the Defendant did become evasive on the updates about the progress on the construction works, and became crafty in the management services which had been assigned to him, through mutual consent.

13. The Defendant’s answer to those assertions was that he was stranger thereto.

14. Whereas the Plaintiff stated that the Defendant was supposed to earn Kshs 40,000/= monthly on account of his managerial services; which he was supposed to get from a portion of the rents that the tenants were paying; the Defendant simply said that he was a stranger to the alleged agreement.

15. When the Defendant failed to remit the rents to the Plaintiff, it is the Plaintiff’s case that that constituted a breach of the constructive trust that had arisen in this matter.

16. According to the Plaintiff, although the Defendant was the registered owner of the two properties which were purchased with funds provided by the Plaintiff, the said ownership was in trust and for the benefit of the Plaintiff.

17. The Plaintiff also accused the Defendant of unjust enrichment as the Defendant had received the sum of Kshs 19,100,000/= from her, but he had failed to account for or otherwise relay the profits to the Plaintiff.

18. A second limb of the Plaintiff’s case was that she lent the Defendant the sum of $5,000 USD, which the Defendant was to keep in his account at the time when he was applying for a Visa, to enable him travel to the USA.

19. Apparently, the Defendant was required to satisfy the authorities who were to interview him for the Visa, that his account had the sizeable amount of money.

20. According to the Plaintiff, the money was to be paid back by the Defendant, but he completely failed to do so.

21. The Defendant denied the assertion that he was given the loan of $5,000 USD. His position was the Plaintiff had provided the said sums of money because she wanted to facilitate the Defendant’s travel to the USA, so that he could visit her.

22. During the trial, the Plaintiff testified and then called two other witnesses. Thereafter, the Defendant testified, and he also called two other witnesses.

23. Both the Plaintiff and the Defendant testified on exactly the same lines as set out in their respective pleadings.

24. It is common ground that the Plaintiff met the Defendant when she visited Kenya in 2017. At that time she had come as a tourist, and whilst in the country, the Plaintiff visited a Community-based Organization called FRIENDS PIONEER.

25. PW2was a member of that organization. PW2testified that the Defendant was assigned the role of a guide to the visitors, who were in a group of about 7. In the course of time, the Plaintiff and the Defendant became friends.

26. Whilst the Defendant said that the Plaintiff started helping him, so as to uplift his standard of living, the Plaintiff says that there were two aspects to their relationship. First, they were lovers, and she supported the Defendant financially. Secondly, she made a decision to invest in real property in Kenya.

27. With regard to the support provided to the Defendant, it is the evidence of the Plaintiff that she purchased a motor-cycle and two motor vehicles, for the Defendant.

28. She also agreed with the Defendant that he would earn income from the services which he would render to the project.

29. However, the Plaintiff was categorical that the purchase of the two parcels of land and the development of the same, was her investment.

30. In this case, the Plaintiff has satisfied me that even though she and the Defendant were lovers, there was a clear distinction between the gifts such as the motor-cycle and 2 vehicles, on the one hand; and the real properties, which were an investment.

31. Although the Defendant alleged that the Plaintiff did not visit the construction site, DW3testified that in September 2017, when the Plaintiff stayed in Kenya for about one month;

“During that time they would visit the site where the defendant was building a house. They took a lot of pictures and they would come back and show me.”

32. In his final submissions, the Defendant stated as follows;

“3. The Defendant knew as a husband to be, he had a duty to provide for the family and the only way was to invest and indeed he invested,”

33. Clearly, that which the Defendant did was an investment. And he was doing so using funds provided by the Plaintiff. And he was not just investing for his own benefit: He was investing for and on behalf of his family, which the Plaintiff was to be an integral part of.

34. I also note that the Defendant did send some money to the Plaintiff, after tenants started paying rent.

35. Although the said remittals were few and also for small amounts, they convinced me that the Defendant’s conduct was an affirmation of his role as an agent, who was required to remit the rents to the Plaintiff.

36. I find that the Defendant is the registered proprietor of the 2 parcels of land, but he holds the same in trust for the Plaintiff.

37. Whereas the Defendant testified that the Plaintiff conspired with HAROLD OSOOto steal the Title Deeds of the suit properties, there was no evidence tendered to prove the alleged involvement of the Plaintiff in the criminal enterprise. If anything, DW3exonerated the Plaintiff from the said allegations. She testified thus;

“7. That when the plaintiff learnt the truth about what Harold Osoo hadtold her about the defendant, she came back to Kenya sometime in November, 2018 and made up with the defendant. They even went for a trip to Bali in Indonesia, to celebrate their getting back together.”

38. On the basis of that evidence, tendered on behalf of the Defendant, it cannot be true that the Plaintiff had simply instituted proceedings to “pay-back” the Defendant. I so hold because whilst Harold Osoo had been charged with an offence arising from the theft of the Title deeds, the Plaintiff and the Defendant renewed their relationship.

39. It is also noteable that it was after the Plaintiff got back together with the Defendant, the (according to DW3), the two of them started to make plans for the Defendant’s visit to the USA.

40. I find that the Plaintiff’s intention, when she deposited $5,000 USD in the Defendant’s account, was to facilitate the acquisition of a Visa, which would have enabled the Defendant to visit her in the USA.

41. In effect, the funds were intended to advance the romantic affair between the Plaintiff and the Defendant.

42. I find that the sum of $5,000 was not a loan.

43. And even if the Plaintiff had expected to have it returned, if the Defendant did not obtain a Visa, the refusal by the Defendant, to return the money can only be termed as an act of dishonesty. It was not justiciable. I therefore reject the Plaintiff’s claim for the $5,000 USD.

44. However, I declare that the Defendant is holding the two suit properties (being KISUMU/PANDPIERI/3148and KISUMU/NYALENDA “B”/5181) in trust for the Plaintiff. Accordingly, the Defendant is ordered to transfer the titles thereof to the Plaintiff. However, if the Defendant wishes to retain the said suit properties, he must, forthwith, pay Kshs 19,100,000/= to the Plaintiff. The said sum shall attract interest at Court rates from the date of judgment, until payment in full.

45. The Defendant is also ordered to pay to the Plaintiff, the costs of the suit.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 8TH DAY OF MARCH, 2022

FRED A. OCHIENG

JUDGE