[2019] KEHC 11682 (KLR)
The court found that since the sale agreement between the respondent and the deceased was declared null and void for lack of consent from the City Council of Nairobi or the Land Control Board, all its clauses, including the provision for payment of interest, were also null and void. The court acknowledged that it...
Source-derived case information.
- Citation
- [2019] KEHC 11682 (KLR)
- Parties
- Applicant: Christine Njoki Gathemia; Respondent: Samuel Njihia Njongoro
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 209 of 2013
- Procedural Posture
- Succession Cause / Ruling on Application for Review of Judgment
- Outcome
- application for review allowed; order for payment of interest set aside
- Judges
- AO Muchelule
- Legal Topics
- Succession of Estates, Refund of Purchase Price, Invalid Land Transactions, Review of Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Christine Njoki Gathemia
Applicant
Samuel Njihia Njongoro
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Review of Judgment
Legal Issues
- 1 Whether the applicant is entitled to review of the judgment ordering payment of interest on the refund of the purchase price to the respondent.
- 2 Whether the clause on interest in the sale agreement survives after the agreement was declared null and void due to lack of requisite consents.
Ratio Decidendi
The court found that since the sale agreement between the respondent and the deceased was declared null and void for lack of consent from the City Council of Nairobi or the Land Control Board, all its clauses, including the provision for payment of interest, were also null and void. The court acknowledged that it erred in its earlier judgment by ordering the applicant to pay interest on the refund of the purchase price, as the basis for such interest was the voided agreement. The delay in bringing the review application was attributed to ongoing litigation over execution, and the court exercised its discretion to allow the review. Consequently, the applicant was ordered to refund the...
Court Disposition
application for review allowed; order for payment of interest set aside
Orders
- The refund of Kshs.2,000,000/= by the applicant to the respondent shall not carry interest.
- No order as to costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
SUCCESSION CAUSE NO. 209 OF 2013
IN THE MATTER OF THE ESTATE OF JULIUS GATHEMIA KIHARA (DECEASED)
SAMUEL NJIHIA NJONGORO...........................................CREDITOR/RESPONDENT
VERSUS
CHRISTINE NJOKI GATHEMIA....PETITIONER/ADMINISTRATOR/APPLICANT
RULING
1. The applicant is the administrator of the estate of the deceased Julius Gathemia Kihara who died intestate on 7th June 2012. She is the widow of the deceased, and letters of administration intestate were granted to her on 22nd May 2013. The grant was confirmed on 17th May 2017. The respondent had challenged the application for the confirmation of the grant on the basis that he was a creditor to the estate of the deceased who had not been provided for. He had on 30th September 2010 bought a portion of land measuring 0. 25 acres of Dagoretti/Mutuini/640 belonging to the deceased. The transaction was before the deceased died. His case was that the applicant was aware of the transaction but had omitted him in the proposed distribution. The purchase price was Kshs.3,000,000/= He had paid Kshs.2,000,000/= and the balance of Kshs.1,000,000/= was put in the advocate’s account to be held on stakeholder basis pending the handover by vacant possession of the property to the purchaser.
2. By the time the deceased died, a consent had been obtained to subdivide the land to allow for separate title for the 0. 25 acres. The subdivision was set to be done. Consent for the transfer was going to be sought after the subdivision.
3. In my judgment delivered on 17th May 2017, I determined that, without the consent either from the City Council of Nairobi or the Land Control Board or both, the transaction became null and void. What the respondent was entitled to was the refund of the purchase price. I directed that the Kshs.2,000,000/= be refunded by the applicant, and this was to be with interest at the rate of 5% per annum above the prevailing interest rate at Barclays Bank from 2011 to date.
4. The applicant was aggrieved by the order to pay interest and sought review by her application dated 18th December 2018 and filed on the same date. Her case was that the interest rate as ordered in the judgment was a stipulation of the sale agreement that the court in the same judgment had declared to be null and void due to lack of consent from either the City council of Nairobi or the Land Control Board.
5. The respondent opposed the application on the basis that the error or mistake alluded to was not apparent or self-evident and that it required examination and argument to establish it; and that the applicant had not laid a basis for review. Secondly, that there had been unexplained inordinate delay in bringing the application for review.
6. I agree that there was delay in bringing the application. The judgment was on 17th May 2017, and the application was brought about 1½ years later. There was no explanation for the delay, although during the intervening period the parties were litigating the respondent’s application to execute the judgment. A ruling was delivered on 18th July 2018 on the application. I consider that the delay to bring the present application would be attributed to the dispute over execution.
7. I accept that the payment of interest was entrenched in the sale agreement signed between the respondent and the deceased. I agree that since I declared the sale agreement null and void all and any of its clauses became null and void. The court therefore fell into error when it ordered the payment of interest. The clause regarding the payment of interest had been declared null and void.
8. Consequently, I allow the application. The refund of Kshs.2,000,000/= by the applicant shall not carry interest.
9. Since the error was on the part of the court, I will not make an order for costs.
DATED and DELIVERED at NAIROBI this 23RD day of SEPTEMBER, 2019.
A.O. MUCHELULE
JUDGE