[2017] KEELC 3149 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAIROBI

ELC NO. 351 OF 2009

JAMES ONYANGO ONYANGORE…..…………………………..PLAINTIFF

VERSUS

AGGRET TAIKOSH AZELWA……….………………………… DEFENDANT

JUDGMENT

The plaintiff and the Defendant entered into a written agreement dated 14th July, 2008 for the sale of L.R No. Eldoret Municipality Block 21 (King’ong’o)/1696 (hereinafter “the suit property”). Under the said agreement, the Plaintiff agreed to sell and the Defendant agreed to purchase the suit property at a consideration of Kshs.2. 9 million. Pursuant to the said agreement, the Defendant issued the Plaintiff with a cheque dated 5th September 2008 for Kshs.2. 9 million in full and final settlement of the purchase price for the suit property inconsideration of which the Plaintiff handed over to the Defendant the title deed for the suit property together with the instrument of transfer duly executed by him. It was agreed between the Plaintiff and the Defendant that the Defendant would use the suit property as a security to secure a bank loan which the Plaintiff would utilize to pay the purchase price for the suit property.

The Plaintiff brought this suit against the Defendant on 16th July 2009 seeking specific performance of the said agreement for sale dated 14th July 2008. The Plaintiff averred that pursuant to the said agreement, the Defendant issued him with a cheque for Kshs.2. 9 million for the entire purchase price which was post dated to 5th September 2008. The Plaintiff averred that prior to 5th September 2008 when the said cheque was to be deposited, the Defendant asked him not to bank the cheque as he wanted to settle the purchase for the suit property in cash. The Plaintiff averred that out of the purchase price of Kshs.2. 9 million the Defendant paid only a sum of Kshs.900,000/= leaving a balance of Kshs.2. 1 million unpaid. The Plaintiff averred that the Plaintiff had in the meantime transferred the suit property to his name and charged the same to Standard Chartered Bank Ltd. to secure a loan of Kshs.2. 8 million. The Plaintiff averred that his claim against the Defendant was for the payment of the balance of the purchase price in the sum of Kshs.2,000,000/=.

The Defendant entered appearance and filed a statement of defence on 5th August 2009. The Defendant admitted that he entered into an agreement for sale of the suit property with the Plaintiff on 14th July 2008. The Defendant further admitted the terms of the said agreement as pleaded in paragraphs 3, 4 and 5 of the plaint. The Defendant admitted further that he paid to the Plaintiff a sum of kshs.900,000/= of the agreed purchase price of Kshs.2. 9 million. The Defendant contended however that the agreement for sale which they entered into with the Plaintiff was rescinded and that it was agreed that the Plaintiff would refund him the sum of Kshs.900,000/= which he had paid on account of the purchase price to enable the Defendant repay the loan, have the charge over the suit property discharged and the suit property re-conveyed back to the Plaintiff. The Defendant denied owing the Plaintiff the claimed sum of Kshsh.2,000,000/= or any other amount.

The suit came up for hearing on 24th October 2016 when only the Plaintiff and his advocate appeared in court. The Defendant and his advocate did not appear. Having satisfied myself that the Defendant’s advocates were duly served with a hearing notice, I allowed the Plaintiff to prosecute the suit the absence of the Defendant notwithstanding. In his evidence, the Plaintiff told the court that he sold the suit property to the Defendant at Kshs.2. 9 million. He stated that the Defendant gave him a post dated cheque for Kshs.2. 9 million in exchange of the original title deed and instrument of transfer which the Defendant intended to use to secure a bank loan which he was to utilize to pay the purchase price for the suit property. He stated that the Defendant obtained a loan on the security of the suit property which he charged to the tune of Kshs.2. 8 million. The Plaintiff stated that the Defendant had asked him not to bank the post dated cheque of Kshs.2. 9 million on the due date. He stated that the Defendant paid him kshs.900,000/= only on account of the purchase price for the suit property and had refused to pay the balance of the purchase price despite demand made upon him to do so.

The Plaintiff produced as exhibits; a copy of the agreement for sale dated 14th July 2008, a copy of a cheque for Kshs.2,900,000/= dated 5th September 2008 made out in favour of the Plaintiff, a copy of a certificate of official search dated 5th June 2009 and a copy of a demand letter dated 16th March 2009. The Plaintiff stated that the suit property was sold by the bank after the Defendant defaulted in his loan repayment obligations to the bank. He urged the court to enter judgment against the Defendant for the sum of Kshs.2,000,000/= being the balance of the purchase price for the suit property together with interest.

I have considered the pleadings and the evidence on record. I am satisfied that the Plaintiff has proved his case against the Defendant. The agreement between the Plaintiff and the Defendant is admitted by the Defendant. The fact that the Plaintiff fulfilled his part of the agreement by transferring the suit property to the Defendant is admitted. The fact that the Defendant paid to the Plaintiff only a sum of Kshs.900,000/= towards the purchase price of the suit property leaving a balance of Kshs.2,000,000/= is not disputed. The Defendant contended in his defence that the agreement for sale between him and the Plaintiff was rescinded. The Defendant neither gave any particulars of the alleged rescission nor tendered any evidence at the trial in proof hereof. It is my finding that the Plaintiff’s claim has been proved to the required standard and I hereby enter judgment for the Plaintiff against the Defendant in the sum of kshs.2,000,000/= together with interest at court rate with effect from 16th July, 2009 until payment in full. The Plaintiff shall have the costs of the suit. The Deputy Registrar shall ensure that the Plaintiff pays additional court fees before extracting the decree.

Delivered and signed at Nairobi this 31st day of March, 2017

S. OKONG’O

JUDGE

In the presence of

Mr. Makori h/b for Ms. Morara for the Plaintiff

N/A for the Defendant

Kajuju Court Assistant