[2015] KEELC 712 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIRBI

ENVIRONMENTAL & LAND DIVISION

ELC CASE NO. 518 OF 2013

KUNGU KAMAU..................................................PLAINTIFF

-VERSUS-

KAMAU KIONGO....................................1ST DEFENDANT

VINCENT KUNGU NDEKEI....................2ND DEFENDANT

JUDGMENT

Introduction

This is a straightforward suit for completion of an alleged sale of property known as Title No. Chania/Ngorongo/1927. The Plaintiff claims that the 1st Defendant sold the property to him but then secretly transferred the same to the 2nd Defendant.

Pleadings and Litigation History

The suit herein was filed on 2nd May, 2013. A List of documents was then filed besides the Plaint alongside a list of witnesses and the Plaintiff’s witness statement. A Defence Statement was filed on 15th May, 2013 by the 2nd Defendant and on 23rd May, 2013 the 1st Defendant also filed his Defence Statement. The Defendants filed no bundle of documents. Following closure of pleadings the pretrial conference was conducted and the case fixed for trial. The trial took place on 27th November, 2014.

The trial and evidence

The Plaintiff testified as did the 1st Defendant. The 2nd Defendant did not testify but had filed a witness statement. The 2nd Defendant did not however present himself for cross examination.

The Plaintiff testified that the 1st Defendant had agreed to sell to him in 1995 a half acre of land for Kshs. 65,000/=. There was a Sale Agreement. He paid the full purchase price in installments. The 1st Defendant then distributed the land to others and relocated to Naivasha where he was arrested in 2009. The 1st Defendant was charged with obtaining by false pretense and jailed for six (6) months. The Plaintiff was the complainant. The Plaintiff sought the land he bought or an alternative parcel of land. The Plaintiff stated that he only paid the 1st Defendant Kshs. 51,000/=. The Plaintiff however denied in cross-examination that he was unable to complete the transaction.

The 1st Defendant’s testimony on the other hand was that the plaintiff and the 1st Defendant entered into a Sale Agreement. Of the agreed Kshs. 65,000/-, the Plaintiff only paid by way of installments. He claimed that when the Plaintiff failed to pay the balance after he had subdivided the land, the 1st defendant took Kshs. 35,000/= to the advocate Mr. Waweru who appears for the 2nd Defendant in this matter. The 1st Defendant’s instructions were clear that the amount be refunded to the Plaintiff. Shortly afterwards, the 1st Defendant states he was arrested, arraigned in court, tried and finally jailed for six months. The 1st Defendant was emphatic that he never absconded to the Rift Valley. He asked the court to dismiss the Plaintiff’s claim and stated further that he would refund the Plaintiff the purchase price paid.

The 2nd Defendant did not call any witness. Neither did the 2nd defendant offer any testimony himself. Like the Plaintiff as well as the 1st Defendant, the 2nd Defendant did not make any submissions.

Analysis & Determination

I have reviewed the facts of this case in their entirety and the findings are pretty straightforward. The Plaintiff and the 1st Defendant entered into an agreement for the sale of the 1st Defendant’s property. The sale price agreed upon was Kshs. 65,000/=. The Agreement was in writing. The 2nd Defendant defaulted. He simply bolted with the purchase money part of which he had been paid, to the Rift Valley. He was arrested and convicted at the prompting of the Plaintiff. He by then had sold and transferred the property to the 2nd Defendant who is the registered proprietor. The 1st Defendant says he was never at fault but two things stand out which show the contrary.

Firstly he was convicted on the basis of the same transaction. He was convicted on his own plea of guilt. He was fined 20,000/- or six months in jail, in the event he was unable to pay the fine. He was unable to and served the jail term. He does not deny these facts. Certainly, if he was not at fault how could he possibly have been convicted. The conviction and I have read the proceedings in the criminal trial, reveal that the 1st Defendant was at fault. He prompted or deliberately led to the collapse of the sale agreement between the 1st Defendant and the Plaintiff.

Secondly, from a more civil claim perspective, there is no evidence before the court that the 1st Defendant as the vendor who had received part of the purchase price ever issued a completion notice to the Plaintiff. If truly the 1st Defendant was ready able and willing to complete, nothing would have been easier than to put the Plaintiff on notice to complete the transaction. As the vendor he should have done so. By the time of his conviction in October, 2009, the 1st Defendant had long transferred the suit property to the 2nd Defendant. It is evident that the 2nd Defendant was at fault and deliberately so. He should not have transferred the property title No. Chania/Ngorongo/1927 to the 2nd Defendant in the face of the sale agreement dated 20th January, 1995. The defence that the Plaintiff was at fault cannot hold any water.

I notice though that this was a controlled transaction under the Land Control Act (Cap 302). The consent of the Land Control Board should have been obtained or at the very least applied for within six months of the 20th day of January, 1995. There is no evidence before me that such an application was lodged with the relevant board prior to the 20th day of July, 1995. Neither was there an application for extension of that period of time made to the High Court. Effectively the Sale agreement as between the Plaintiff and the 1st Defendant is void for want of compliance with the statutory provisions of the Land Control Act. It truly does not matter that neither party alluded to this fact or point of law, the court must always take judicial notice of such matters: see Section 60(1) (a) of the Evidence Act (Cap 80). Secondly, there is uncontroverted evidence that it is the 2nd defendant who bought the suit property and is in possession. Perhaps, if the Plaintiff had been in possession then the Sale Agreement would have been saved pursuant to the Court of Appeals’ holding in Macharia Mwangi & 87 others –vs- Davidson Kagiri Mwangi [2014] eKLR where the court held that the mere lack of a consent will not of itself void an agreement especially if one party has taken possession.

The Plaintiff sought an order that the 2nd Defendant do transfer the suit property to the Plaintiff. I do not see such order as viable in the circumstances. The Plaintiff has not led any evidence to show that the 2nd Defendant knew or ought to have known of the Plaintiff’s interest in the property. The Plaintiff has also not proven any element of fraud, misrepresentation, illegality or corruption on the part of the 2nd Defendant in the process of acquiring title to the suit property from the 1st Defendant. In the circumstances, under Section 26 of the Land Registration Act, 2012, the 2nd Defendant’s title cannot be impeached. Likewise as there was no agreement for the transfer of the suit property between the Plaintiff and the 2nd Defendant, this court cannot force the 2nd Defendant to effect such a transfer.

Finally, I also hold the view that the Plaintiff claim would be barred by statute under Section 7 of the Law of Limitations Act Cap (22) Laws of Kenya. The Agreement should have been completed in 1995. That is over 15 years ago.

There is however no doubt that the Plaintiff would be entitled to a refund of the amount paid to the 1st Defendant. There has been a failure of consideration. I see no reason why the amount paid to the 1st defendant as purchase price should not be refunded. Statutorily, this amount would be recoverable under section 7 of the Land Control Act. Judiciously too, equity would demand that the 1st defendant is not allowed to unjustly enrich himself. The 1st Defendant has also exhibited the will to refund the purchase price paid to him by the Plaintiff. I would in the circumstance order that the amount of Kshs. 51,000/= be refunded to the Plaintiff by the 2nd defendant together with interest at court rates from the day of filing suit till full payment. A decree is to issue to that effect and also to the effect that the Plaintiff’s suit is dismissed but with no orders as to costs.

Dated, signed and delivered at Nairobi this 17th day of February, 2015

J. L. ONGUTO

JUDGE

In the presence of:-

....................................................... for the Plaintiff

....................................................... for the Defendants