[2014] KEHC 7200 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

ENVIRONMENT AND LAND CASE NO. 351OF 2012

HENRY ORINA OKAO………………………………………………………………PLAINTIFF

VERSUS

TIMOTHY OGUCHA OMATO…………………………………………………….DEFENDANT

JUDGMENT

The Plaintiff filed this suit against the defendant on 26th September, 2012 seeking; an order that the deputy registrar of this court do sign forms as may be necessary to transfer all that parcel of land known as LR. No. West Kitutu/Bomatara/1782(hereinafter referred to as “the suit property”) to the Plaintiff and, an order nullifying and/or cancelling the title deed for the suit property “for easier execution by the land registrar”. The Plaint was amended with leave of the court on 30th September, 2013. In the amended Plaint, the Plaintiff introduced an alternative prayer for the refund of the sum of Ksh. 210,000. 00 paid by the Plaintiff to the defendant for the purchase of the suit property together with “default damages”. The Plaintiff’s suit was brought on the grounds that on 23rd day of August, 1997, the Plaintiff entered into an agreement for sale with the defendant whereby the defendant agreed to sell and the Plaintiff agreed to purchase the suit property at a consideration of Ksh. 210,000. 00. The Plaintiff paid the full purchase price to the defendant but the defendant failed to fulfill his part of the bargain by refusing and/or neglecting to apply for and to obtain the consent of the land control board which is necessary for the transfer of the suit property to the Plaintiff. The defendant has also refused and/or neglected to execute an instrument of transfer of the suit property in favour of the Plaintiff. It is on account of the foregoing that the Plaintiff sought an order that the Deputy Registrar be authorized by this court to transfer the suit property to the defendant or in the alternative, the defendant be ordered to refund to the Plaintiff the sum of Ksh. 210,000. 00 that was paid to the defendant as the purchase price together with what I believe is damages.

The defendant was served with the Summons to enter appearance but failed to do so within the time prescribed. The Plaintiff requested for interlocutory judgment against the defendant on 18th October, 2012 which seems not to have been entered by the deputy registrar. The matter was thereafter listed for formal proof on 23rd May, 2013. Although it was not necessary to serve the defendant with a hearing notice the defendant having failed to enter appearance, the Plaintiff nevertheless caused a notice of the hearing that was scheduled for 23rd May, 2013 to be served upon the defendant. On the hearing date, the defendant did not appear and I allowed the hearing to proceed his absence notwithstanding. The Plaintiff gave evidence and did not call any witness. The Plaintiff’s evidence was taken on 23rd May, 2013 and 30th September, 2013.

In his evidence, the Plaintiff testified that; in the year 1997, he purchased the suit property from the defendant and the defendant agreed to transfer the same to him within 3 weeks from the date of the agreement for sale. After 3 weeks from the date that he entered into the said agreement for sale, the defendant switched off his cell phone and he could not be able to contact him. It was not until the year 2000 when he got hold of the defendant again. During this encounter, the defendant gave him another cell phone number and asked him to call him after 2 weeks so that they can finalize the sale of the suit property. When he tried to contact the defendant after 2 weeks as they had agreed, the defendant cell phone was off again. The defendant went underground again and he did not manage to contact him until the year 2001. When they met in the year 2001 the defendant once again promised that he would sort out the issue of transferring the suit property to the Plaintiff within 3 weeks. Once again, the defendant failed to honour his promise. He (Plaintiff) then went out of the country and did not come back until the year 2008. When he came back to the country, he was informed that the defendant was in the process of transferring the suit property into the name of his wife. To stop that transaction, he lodged a caution against the title of the suit property to protect his interest in the same. After lodging the caution, he met the defendant again and as usual, he made promises which he failed to fulfill. He was therefore left with no alternative but to institute these proceedings. The Plaintiff produced in evidence, a copy of the agreement for sale that he entered into with the defendant dated 23rd August, 1997, a copy of the caution that he lodged against the title of the suit property, a copy of the certificate of official search dated 13th November, 2008 in respect of the title of the suit property and a copy of a letter of demand before action that he sent to the defendant. The Plaintiff testified further that he paid to the defendant the full purchase price in the sum of Kshs. 210,000. 00. He testified further that when they were supposed to appear before the land control board for the consent to transfer the suit property to him, the defendant failed to show up. The Plaintiff urged the court to assist him to have the suit property transferred to his name and in the alternative to have a refund of the purchase price that he paid for the suit property together with damages.

After the Plaintiff finished giving his evidence, he informed the court that he did not wish to make any submissions. He relied on the evidence on record and urged the court to enter judgment in his favour as prayed in the amended Plaint. I have considered the Plaintiff’s case as pleaded and the evidence tendered in proof thereof. I am satisfied that the Plaintiff has proved his case against the defendant on a balance of probability. The Plaintiff has proved that he entered into an agreement for sale of the suit property with the defendant under which the defendant agreed to sell to the Plaintiff the suit property at a consideration of Kshs. 210,000. 00. The Plaintiff has proved further that although the Plaintiff paid the full purchase price to the defendant, the defendant failed to make necessary arrangements to have the suit property transferred to the Plaintiff. The defendant failed to apply for the consent of the land control board to transfer the suit property to the Plaintiff which was his obligation under the said agreement for sale. In summary, the Plaintiff has proved that the defendant has breached the agreement for sale dated 23rd August, 1997 that was entered into between the Plaintiff and the defendant. The Plaintiff has urged the court to authorize the deputy registrar of this court to transfer the suit property into his name. In the alternative, the Plaintiff has sought an order for the refund of the purchase price in the sum of Kshs. 210,000. 00 together with damages a he has referred to it. There is no doubt that the suit property was an agricultural land. That is why the consent of the land control board was required to effect the transfer of the suit property to the defendant. There is no dispute also that the said consent was not obtained. Section 6 of the Land Control Act, Cap. 302, Laws of Kenya provides among others that an agreement for sale of land is void for all purposes unless the land control board for the area where the land is situated has given its consent in respect of the transaction. Section 7 of the said Act however allows for the recovery of the consideration paid in the course of the void transaction. It is clear from the foregoing that the agreement for sale between the Plaintiff and the defendant for the sale of the suit property is void for want of consent of the land control board. This court cannot in the circumstances order the transfer of the suit property to the Plaintiff either by the defendant or the deputy registrar of this court. Such order would be contrary to the law. In the case of, Wamukota vs. Donati [1987] KLR 280, it was held that a purchaser of land under a controlled transaction where no consent has been obtained has no legal or equitable claim over the land and the only redress available to him is to recover the money or valuable consideration paid in the course of the transaction. It is clear therefore that what the Plaintiff is entitled to is to recover the purchase price that he paid to the defendant for the suit property. The Plaintiff has sought in addition to the purchase price, the payment of default damages. I have noted in the agreement for sale dated 23rd August, 1997 that it provided for the payment of a sum of Kshs. 420,000. 00 as liquidated damages by any party in default in the fulfillment of his obligations under the agreement. I have already held hereinabove that the Plaintiff has proved that the defendant has breached the agreement for sale aforesaid. The Plaintiff is therefore entitled to recover from the defendant the purchase price of Kshs. 210,000. 00 and the said sum of Kshs. 420,000. 00 as liquidated damages.

Due to the foregoing, I hereby enter judgment for the Plaintiff against the defendant in the sum of Kenya Shillings Six Hundred and Thirty Thousand (Kshs. 630,000. 00) together with interest from the date of filing this suit until payment in full. The Plaintiff shall also have the costs of this suit.

Delivered, datedandsigned at KISIIthis 31st of day January 2014.

S. OKONG’O

JUDGE

In the presence of:

Present in person for the Plaintiff

N/A for the Defendant

Mobisa Court clerk

S. OKONG’O

JUDGE