[2023] KEHC 26367 (KLR)

Lumbi v Musyoki & another (Commercial Suit 545 of 2013) [2023] KEHC 26367 (KLR) (Commercial and Tax) (8 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26367 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Commercial Suit 545 of 2013

FG Mugambi, J

December 8, 2023

Between

Nicholas Makuyu Lumbi

Plaintiff

and

Meshack Mwaka Musyoki

1st Defendant

Christopher Muuo Musyoki

2nd Defendant

Judgment

(Both being sued in their capacity as administrators of the Estate of Henry Musyoki Kilonzi (Deceased)) Background 1. The plaintiff vide a plaint dated 4th December, 2013 which was amended on 1st November 2019 filed this suit seeking judgment against the estate of the deceased for Kshs. 7,353,000/=, costs of the suit, and interest. The plaintiff’s case is that in February 1992 he entered into a sale agreement with the deceased where the deceased was to sell to the plaintiff some 20 acres of his land parcel No. 14759 in Athi River.

2. The plaintiff paid the full purchase price for the land but the deceased failed to deliver title or possession of the said parcel. The plaintiff alleges that the deceased breached the said contract and sold the said parcel of land to a third party. This culminated to the agreement of 30th July 2009 where it was agreed that the deceased would compensate the plaintiff for the loss of 10 acres of land, at a cost of Kshs. 900,000/= per acre and allocate the plaintiff 10 acres of land at a different location to cater for the balance.

3. The deceased allegedly failed to comply with the terms of the aforesaid agreement. As a result, the plaintiff sued him in HCCC No. 905 of 2009 for the monetary part of the contract which suit was determined in favour of the plaintiff and the deceased has since satisfied the decree therein. He further averred that he tried to pursue the deceased for the remaining part of the agreement but his efforts were in vain.

4. The plaintiff contended that later, the deceased agreed to compensate him by giving him Kshs. 9,000,000/= for the said 10 acres. However, out of the said Kshs. 9,000,000/=, the deceased only paid Kshs. 1,647,000/= leaving a balance of Kshs. 7,353,000/= that is still due and owing.

5. On 12th February, 2014, the deceased filed a statement of defence dated 12th February, 2014 which was amended on 4th December 2019 denying the averments contained in the plaintiff’s plaint and seeking dismissal of the plaintiff’s suit with costs. The deceased averred that he only sold 10 acres of land to the plaintiff in 1992 and that the Kshs. 1,647,000/= paid by the deceased to the plaintiff was in refund of a loan.

6. He further averred that HCCC No. 905 of 2009 was similar to this suit and is also based on the contract dated 30th July 2009. In addition, HCCC No. 905 of 2009 concluded the dispute between the parties herein in relation to the said contract.

7. Each of the parties herein called one witness during the trial. The plaintiff, NICHOLAS MAKUYU LUMBI testified as PW1, whereas the defendant called MESHACK MWAKA MUSYOKI, a son of the deceased, as DW1, to testify in place of the deceased.

The plaintiff’s evidence. 8. PW1, Nicholas Makuyu Lumbi adopted his witness statement dated 4th December 2013. The witness confirmed the purchase of the 20 acres of land from the deceased in February 1992 from LR No. 14759 Athi River.

9. In cross-examination, he confirmed that he did not have the 1992 agreement in Court, that upon realizing that the deceased had sold the land to a 3rd party he reported the matter to the police and the deceased was arrested on 24th July 2009. He confirmed that upon signing the agreement of 30th July 2009 the deceased was released. He stated that the deceased was accompanied by his advocate to the police station where they both executed it.

10. PW1 averred that the deceased paid him Kshs. 1,500,000/= and breached all the other terms of the said agreement which resulted to the institution of HCCC No. 905 of 2009 by the plaintiff for breach of the monetary term seeking Kshs. 7,500,000/=. He further averred that the aforementioned suit was determined in his favour and the deceased settled the decree therein.

11. Thereafter, the deceased offered to perform the remaining part of the agreement dated 30th July 2009 by giving the plaintiff 10 acres from another land belonging to him.

12. The plaintiff signaled acceptance vide a letter dated 29th September 2011 addressed to the deceased by his advocates on record but later the deceased offered to pay the plaintiff Kshs. 9,000,000/= for the remaining 10 acres of land. PW1 asserted that the deceased started making payments of the said sum of money on 2nd April, 2012 and had since paid a total of Kshs. 1,647,000/= as can be seen from the deceased diary page extracts of 23rd April 2012, which he confirmed were in the deceased’s handwriting.

The defendant’s evidence. 13. DW1 was Meshack Mwaka MusyokI who adopted the deceased’s witness statement dated 5th March 2014 as his statement. He confirmed being aware of the plaintiff’s claim. He further confirmed knowledge of the agreement signed by the plaintiff and the deceased at the police station pursuant to which the deceased paid the plaintiff Kshs. 9,000,000/=.

14. DW1 also asserted that the deceased had advanced a friendly loan to the plaintiff of Kshs. 1,647,000/= which he confirmed during cross-examination, was evidenced by the entry in diary produced by the plaintiff. DW1 further averred that he witnessed the plaintiff sign for the money he was lent.

Parties’ submissions 15. Upon close of the plaintiff’s and the defendant’s case, the Court directed parties to file written submissions. The plaintiff in his submissions referred to the provisions of Section 3(3) of the Contract Act and submitted that the agreement dated 30th July 2009 was reduced into writing and was signed by both parties herein before an advocate thus meeting the conditions set thereunder. He further submitted that the deceased breached the contract between the parties herein by failing to compensate the plaintiff for the loss of ten acres of land.

16. Counsel for the plaintiff submitted that the remedies for breach of sale of land contract include damages which would be equivalent to the difference between the contract price and the market value of the land on the date of breach, plus any incidental costs. Further, the plaintiff may be entitled to specific performance which would require the defendant to fulfill the terms of the contract.

17. In this case, the deceased agreed to compensate the plaintiff by paying him Kshs. 9,000,000/= but only paid Kshs. 1,647,000/= leaving a balance of Kshs. 7,353,000/= thus the plaintiff is entitled to compensatory damages or specific performance.

18. Learned Counsel relied on the case of Oscar Ochieng & Another V Prilcscot Company Limited, [2018] eKLR and stated that specific performance is a legal remedy used by Courts when no other remedy such as money will compensate the other party adequately. In this case, the deceased breached the contract between him and the plaintiff thus the plaintiff is entitled to an order of specific performance.

19. He further relied on the case of Cuosseus V Attorney General, [1999] 1EA 40 and asserted that plaintiff is entitled to compensatory damages for the deceased’s failure to honor the agreement between him and the plaintiff.

20. The defendant on the other hand referred to the provisions of Section 7 of the Civil Procedure Act and the case of John Florence Maritime Services Limited & another V Cabinet Secretary for Transport and Infrastructure & 3 Others, [2015] eKLR and submitted that this suit is res judicata HCCC No. 905 of 2009. This is because, just as in this suit, the plaintiff filed HCCC No. 905 of 2009 against the defendant over all that parcel of land known as L.R No 14759 claiming compensation for a portion measuring 10 acres.

21. The deceased had since compensated the plaintiff for 10 acres of the said land pursuant to a judgment delivered by the Court in HCCC No. 905 of 2009 and was now suing for compensation of the remaining 10 acres. It was stated by Counsel that the plaintiff had not offered any explanation why the entire claim of the alleged 20 cares from L.R. No. 14759 was not litigated upon in HCCC No. 905 of 2009.

22. The above notwithstanding, Counsel further submitted that the sale agreement for the sale of the said 20 cares to be excised from L.R. No. 14759 was entered into in February 1992 which is over 21 years ago hence this suit is time barred pursuant to the provisions of Section 7 of the Limitation of Actions Act.

23. Counsel for the defendant cited the provisions of section 107 of the Evidence Act and stated that the plaintiff did not adduce any evidence to show that it is the deceased who signed copies of diary excerpts by way of a handwriting expert. He referred to the case of Hellen Wangari Wangechi V Carumera Muthoni Gathua, [2015] eKLR and asserted that the plaintiff did not discharge his burden and standard of proof in this case.

Analysis 24. I have considered and analyzed the evidence above in line with the pleadings filed, together with the written submissions by Counsel for parties, and I am of the view that the issues that arise for determination are:i.Whether this suit is res judicata by virtue of Nairobi HCCC No. 905 of 2009;ii.Whether this suit is time barred;iii.Whether there exists a valid contract between the plaintiff and the deceased;iv.Whether the deceased is in breach of a contract between him and the plaintiff to warrant grant of the orders sought herein.

Whether this suit is res judicata by virtue of Nairobi HCCC No. 905 of 2009 25. I start on the footing that the question of res judicata is not new to these proceedings, as confirmed by the defendant’s submissions. It is evident that the defendant had earlier sought to have the suit struck out for being res judicata. A ruling was delivered on 21st April 2016 (Farah S.M. Amin, J), dismissing the application. I disagree with the submission by the defendant that the Learned Judge reserved her finding on that question. Paragraphs 15, 16 and 19 of the said ruling are very clear.

26. The Learned Judge, having found that the suit was not res judicata ordered that this matter proceeds to hearing. For these reasons, I find that this Court has already pronounced itself on this question. I shall say no more.

Whether this suit is time barred 27. The defendant raises this issue by way of submissions noting that the plaintiff and the defendant got into the sale agreement for the suit property in February 1992 and for that reason the suit was time barred. I note that the defendant did not raise the issue in his pleadings but for all it is worth, I will comment on it. According to the plaintiff, it is the alleged agreement of 30th July 2009 that gave rise to this suit.

28. I am of a different opinion. The obligation for the deceased to compensate the plaintiff by paying him Kshs. 9,000,000/= for 10 acres and thereafter give the plaintiff another 10 acres from another land belonging to the deceased arose from the contract of 2009. My understanding is that the obligations of the previous contract of February 1992 were replaced by the later. This is evidenced by the extrinsic evidence and the conduct of the parties as I shall demonstrate in the rest of the analysis.

29. This suit having been filed in 2013, was therefore filed 4 years after the rights of the parties accrued, and is therefore within timelines stipulated in section 7 of the Limitation of Actions Act.

Whether there exists a valid contract between the plaintiff and the deceased 30. The plaintiff relies on the contract of 30th July 2009 as evidence that the parties entered into an agreement. It is clear from the pleadings that the portion of the agreement that the plaintiff seeks to claim is the allocation of 10 acres of land at a different location. Instead of the 10 acres, the plaintiff alleges that the deceased subsequently agreed that he would compensate the plaintiff by giving him Kshs. 9,000,000/= for the said 10 acres.

31. The parties did not produce the original contract entered into in 1992. By reference however, the latter written contract of 2009 confirms that parties had entered into a sale agreement in 1992 for the sale of 20 acres of land. The agreement further confirms that wherelse the registered owner was paid the agreed purchase price, and to date has not transferred the said portion of land to the purchaser.

32. The parties then set out in very clear terms that the defendant would compensate the plaintiff for the loss of 10 acres of land. The agreement stipulates clearly the terms on which the compensation for the said 10 acres was to be paid but is silent on how the other 10 acres of land would be compensated to the plaintiff.

33. The Halsbury’s Laws of England Vol. 9(1) at paragraph 622 provides that:“Where the intention of the parties has in fact been reduced to writing, under the so called ‘parol evidence rule’, it is generally not permissible to introduce extrinsic evidence whether oral or written, to show that intention or to contradict, vary or add to the terms of the document, including implied terms…extrinsic evidence may be allowed to show that the writing is not intended to express the entire agreement between the parties…the effect of this is that …the bargain is embodied partly in the document and partly in the parole evidence.”

34. Against this background the Court is called upon to determine whether parole evidence by way of letters confirming the subsequent arrangement for allocation of 10 acres and diary entries made by the deceased, can be relied upon to demonstrate the additional intention of the parties.

35. I note that the defendant does not dispute the authenticity of the letters produced by the plaintiff and particularly the letter dated 29th September 2011 written to the defendant by B.M. Musyoki Advocates on behalf of the plaintiff. The advocates stated in part:“We note that you are willing to give our client land in a different area to compensate him for the remaining 10 acres. Please note that the land that you are offering our client should be of equivalent value to 10 acres of land in LR 14759 Athi River.”

36. In a subsequent letter dated 15th April 2013, the said advocates state as follows:“We are instructed that after you received our letter dated 13th March 2012, you approached our client and agreed to pay him Kshs. 9,000,000/= being the value of the land ie 10 acres of LR No. 14759 Athi River. To date you have only paid Kshs. 1,647,000/= leaving the balance stated above [Kshs. 7,353,000/=].”

37. Indeed, the details of the amount paid as stated in the 2nd letter is in fact corroborated by the diary entries, which indicate that as at the last entry date, 10th January 2013, an amount of Kshs. 1,647,000/= had been paid by the defendant to the plaintiff.

38. The authenticity of the diary entries is not controverted. The issue that arose between the parties during trial was with relation to the purpose of the payments that the deceased recorded in the diary entries. On a balance of probability, and in light of the 2 letters I have referred to and the agreement of 2009, I would disagree with the defendant’s assertion that the said entries related to repayment of a loan that had been advanced to the deceased by the plaintiff. The heading before the entries reads as follows:“Total Amount Kshs 9,000,000/= Money received by Nicholas Makuyu (the plaintiff) towards the purchase of his ten (10) acres of LR 14759/4. ”

39. It is also not disputed that the plaintiff and the defendant signed against the various sums of money received by the plaintiff. This is evident from the diary entries.

40. For these reasons I am satisfied that there was a valid contract between the parties herein, expressed partly in writing through the contract of 2009 and partly by conduct. No evidence has been tendered to show that the defendant was not in his proper frame of mind when signing the contract although the defendant’s evidence stated that the deceased was suffering from ill health. I say so considering the letters from the plaintiff’s Counsel as well as the diary entries all of which point to a willingness on the part of the defendant to perform his part of the bargain.

Whether the deceased is in breach of a contract between him and the plaintiff to warrant grant of the orders sought herein. 41. No evidence has been produced to demonstrate that besides the Kshs. 1,647,000/= there were other amounts paid by the defendant to the plaintiff. The plaintiff has proved his case on a balance of probabilities and is therefore entitled to the payment of the balance of the amount, being Kshs. 7,353,000/=.

Determination 42. In the circumstances, this Court finds that the plaintiff’s suit against the defendant is merited and enters judgment for the plaintiff against the defendants for the sum of Kshs. 7,353,000/= together with interest at court rates from the date of filing suit until payment in full as well as the costs of this suit.

DATED, SIGNED AND DELIVERED IN NAIROBI THIS 8TH DAY OF DECEMBER,2023. F. MUGAMBIJUDGE