[2013] KEHC 6754 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

ENVIRONMENT AND LAND DIVISION

ELC. CASE NO. 763 OF 2012

JOSEPH KINYANJUI KAARA………………..……..……..PLAINTIFF

VERSUS

ZEWDI TESFAMICHAEL HAILU.……….…..…………. DEFENDANT

RULING

Coming before me for determination is the Notice of Motion dated 30th October 2012 in which the Plaintiff/Applicant seeks for the following orders:

Spent

Spent

That the Defendant be ordered to honour the terms of the Sale Agreement dated 18th June 2012 between the Plaintiff and Defendant.

That the Defendant do render details of her account and/or her Advocate of choice to enable the Plaintiff pay the balance of the purchase price as stipulated in the Sale Agreement dated 18th June 2012 between the Plaintiff and Defendant.

That upon the payment of the purchase price aforesaid, the Plaintiff to take possession of Nairobi/Block 110/237 (hereinafter referred to as the “Suit Property”) whose title was duly registered in his favour on 29th June 2012.

That the Defendant do deposit in court a sum of Kshs. 500,000/- security for costs to defend this suit

That costs be provided for.

The application is supported by the grounds appearing on the face of it together with the Supporting Affidavit of Joseph Kinyanjui Kaara sworn on 30th October 2012 in which he disclosed that he met one Major (Rtd) Kimama who had instructions from the Defendant to sell for her the Suit Property. He stated that he and his wife got interested to purchase the Suit Property and were introduced to the Defendant’s Advocates M/S Njongoro & Co. for that purpose. He further disclosed that he instructed his Advocates M/S Kulecho & Co. to write an offer letter of Kshs. 13 million to Njongoro & Co. He further swore that the Defendant’s Advocate forwarded to his said Advocates a Sale Agreement which was approved and executed on 18th June 2012. He disclosed that subsequently a deposit of Kshs. 3 million was paid by him through his said Advocates to the Defendant’s advocates. He also stated that subsequently, he authorized his advocates to issue an undertaking to pay the balance of the purchase price being Kshs. 10 million to the Defendant’s Advocates to enable them to release the Completion Documents. He further stated that the Defendant’s advocates forwarded the completion documents being the original title deed for the Suit Property, the Defendant’s passport, and a duly executed transfer forms which were lodged for registration by his advocates and a title issues in his name on 29th June 2012. He further stated that he proceeded to instruct the City Council of Nairobi to change their records to reflect his ownership of the Suit Property. He further stated that in July 2012, he asked Major (Rtd) Kimama to call the Defendant to inform her that he was ready to release the balance of the purchase price. He stated that the Defendant began to claim that she had not sold the Suit Property and further that she wanted Kshs. 14 million and not Kshs. 13 million for the Suit Property. He further stated that subsequently, the Defendant emailed him on numerous occasions in which she contradicted herself claiming that she never authorised the sale of the Suit Property.

He stated that he instructed his advocates to issue a 21 day’s Notice of Rescission of the Sale Agreement to which the Defendant’s Advocate replied seeking for time to seek further instructions on the way forward of which no response was received prompting the filing of this suit and application.

The Application is contested. The Defendant filed her Replying Affidavit sworn on 18th January 2013 in which she stated that she never instructed Major (Rtd) Kimama to sell the Suit Property as he is only a neighbor who owns a plot within the same location as the Suit Property. She further stated that her instructions to M/s Njongoro & Co. was to represent her in the process of transferring the Suit Property from her late husband’s name to her name because the title deed was held by Barclays Bank and she was not able to stay in Kenya until its release and could therefore not attend to that process personally. She further stated that she is a complete stranger to the Plaintiff/Applicant’s averments as she was neither informed nor supplied with a copy of the draft Sale Agreement nor was her approval sought in relation to the Sale Agreement by M/s Njongoro & Co. She further stated that at no time did she ever execute the Sale Agreement in the presence of J. M. Njongoro or in person as evidence by his stamp on the Sale Agreement considering that on the date of 18th June 2012, she was not present in Kenya to have appeared before him. She further stated that she never received the sum of Kshs. 3 million allegedly paid to Njongoro as deposit for the sale transaction. She further denied having executed any Transfer Forms in favour of the Plaintiff/Applicant as she was not in Kenya at that time and the said documents were never forwarded to her in Canada where she resides. She further stated that if indeed there was a document to be executed by her in Canada, she would have definitely appeared before a Notary Public to enable the documents to be admissible in Kenya for any transaction to be legitimate. She further denied having conversed with Major (Rtd) Kimama or having demanded Kshs. 14 million for the Suit Property. She further stated that she was clear to Mr. Njongoro, the Plaintiff/Applicant and Major (Rtd) Kimama that she was not interested in selling the Suit Property to anyone. She further disclosed that she learned that she had been sued by the Plaintiff/Applicant through a friend who saw the advertisement in the newspaper and that to exhibit the extent of dishonesty of Mr. Njongoro, he purported to file a Memorandum of Appearance in this case on her behalf without her instructions. Finally, she stated that the orders sought by the Plaintiff/Applicant are untenable considering that she never executed any Sale Agreement and/or Transfer and the same were obtained through fraud and forgery occasioned by Mr. Njongoro and it is unjust to compel her to complete a sale which she did not participate in or receive any proceeds from.

In response thereto, the Plaintiff/Applicant filed a Supplementary Affidavit sworn on 25th March 2013 in which he stated that it is true that the Defendant authorized Major (Rtd) Kimama to sell the Suit Property for her and that Major Kimama had previously identified other buyers. He further stated that the Defendant had authorized him to deal with Mr. Njongoro. He further stated that when he was introduced to Mr. Njongoro, he confirmed that the Suit Property was for sale and that all the relevant documentation was in order. He stated that he was a willing and innocent buyer and had no reason to doubt the said advocate or Major Kimama who were all the Defendant’s agents. He further stated that the Sale Agreement was drawn by the Defendant’s Advocates and he had no reason to find out who executed it because it was clear it was the Defendant’s document. He further stated that he was not under an obligation to pay the Defendant the deposit as the Sale Agreement directed him to pay her Advocate which he did. He also stated that he had no reason to doubt the validity of the sale transaction particularly when the Defendant’s advocate forwarded the completion documents. He further stated that the Defendant sold the Suit Property to him and the entire sale transaction had her blessings. He also stated that the Defendant asked him for an additional Kshs. 1 million over and above the kshs. 13 million for the Suit Property. He also stated that if the Defendant had any professional issues with her advocates to settle, she should pursue them in another forum.

A further Supplementary Affidavit sworn by Major (Rtd) Crispus Kimama Mwangi sworn on 25th march 2013 was filed in which he stated that he knows the Defendant personally as the Suit Property is near his house and that she authorized him to guard it. He further stated that in January 2012, the Defendant through Njongoro & Co. Advocates authorized him to try and locate a buyer for the Suit Property which he did through his agency firm. He disclosed having identified a previous buyer who did not succeed to purchase as the title of the Suit Property was not registered in the name of the Defendant at that time. He further stated that he was in constant communication with the Defendant who impressed upon him to locate a buyer for the Suit Property. He stated that he finally found the Plaintiff/Applicant whom he introduced to Mr. Njongoro to purchase the Suit Property for Kshs. 13 million. He further stated that he called the Defendant in July 2012 to inform her to remember his commission owing to the fact that the sale transaction between her and the Plaintiff/Applicant was nearing completion. He also supported the claim that the Defendant requested the Plaintiff/Applicant to pay her an additional Kshs. 1 million over and above the Kshs. 13 million earlier agreed upon.

Both the Plaintiff/Applicant and the Defendant/Respondent filed their written submissions all of which have been read and taken into consideration by this court.

The prayers sought by the Plaintiff/Applicant are prayers which are final in nature. Requesting that the Defendant be ordered to specifically perform the Sale Agreement, agree to receive the balance of the purchase price of the Suit Property and give up possession thereof to the Plaintiff/applicant are orders which are final in nature and which cannot be granted at this interlocutory stage of these proceedings. This position was clearly stated in the case of Samuel Kimani Wainaina vs. Housing Finance Co. of Kenya Ltd (Milimani HCCC No. 164 of 2006). Further, regarding the request for security of costs, I agree with the Defendant respondent that the Suit Property is already currently registered in the name of the Plaintiff/Applicant and the chances of the Defendant absconding are minimal. I therefore decline to allow that prayer.

Accordingly, I hereby dismiss this application. Costs shall be in the cause.

SIGNED AND DELIVERED AT NAIROBI THIS 1ST DAY OF NOVEMBER 2013

MARY M. GITUMBI

JUDGE