[2004] KEHC 86 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (MILIMANI COMMERCIAL COURTS)

CIVIL SUIT 351 OF 2000

MOHAMED JUMA MPONDA...................................... PLAINTIFF

VERSUS

ANNE WACHERA NJONJO...................................... DEFENDANT

JUDGMENT

In a plaint dated 24th January, 2000 and filed on 28th February, 2000 thePlaintiff claims from the defendant specific performance of a contract of saleof motor vehicle registration number KAH 931 G and payment of a sum ofKshs. 160,000/= being balance of purchase price of the said motor vehicle.He also seeks punitive damages for breach of the said contract. There is afurther claim for loss of use of the motor vehicle at the rate of Kshs.3,500/=per day with effect from 9th November, 1999 to the date of the plaint.Interest is sought on the sum claimed general damages and costs. On 17May, 2002 Hewett J allowed an amendment to the prayer of interest to beinterest at commercial rates.

On 17th March, 2000 the defendant filed defence and counter claimed forrefund of Kshs.50,000/= plus accrued interest; Kshs.21,500/= plus interestbeing costs of repairs; storage charges at the rate Kshs.3,500/= per day from 9th November, 1999 up to the date of collection of the motor vehicle.The defendant also claimed damages for making the defendant enter into anagreement which the Plaintiff knew from the beginning could not beconsummated. The Plaintiff filed Reply and Defence to counter claim andpleadings closed. The matter proceeded to hearing partly before Hewett Jand partly before me. The Plaintiff testified and called no witness. Thedefendant testified and called one witness.

The Plaintiff told the court that he sold his matatu motor vehicle registrationNo KAH 931 E to the defendant whom he knew for Kshs. 180,000/= inOctober, 1999. On or about 27th October, 1999 the defendant paid himKshs.20,000/=. He then released the said motor vehicle which the defendanttook to her home. The agreement was reduced to writing. The same wasproduced as Exhibit 1. The Plaintiff further testified that the defendant wasto pay in cash 2 or 3 times. The defendant paid him Kshs. 130,000/= by acheque which the defendant later stopped. The said cheque was produced asExhibit 2. No further payments were made. The defendant however stillheld the vehicle. The Plaintiff further said that he had suffered somehardship for example he did not use the money, he lost an income ofKshs.3,500/=. The Plaintiff therefore prayed for judgment for the sum ofKshs. 160,000/= plus Kshs.3,500/= costs and interest.

In cross examination, the Plaintiff stated that they are neighbours and thesale agreement was drawn by Jivanjee Advocate. He denied that thedefendant paid him Kshs. 10,000/= or Kshs.40,000/=. He maintained that thedefendant paid him only Kshs.20,000/=. The Plaintiff in further crossexamination testified that on 9th November, 1999, they went to the office ofthe Registrar of Motor vehicles to transfer the motor vehicle. They wentwith one Isaack Juma and the defendant's husband. All the documents weresigned. He maintained that he received Kshs.20,000/= on the day of the agreement. That left Kshs. 160,000/= to be paid. He denied there having been an argument or quarrel on 9th November, 1999.

The Defendant testified that she lived in South B - Nairobi and did littlebusiness of transport mainly. She said she knew the Plaintiff when she wasworking for Stanbic Bank. She wanted to buy a Nissan matatu and thePlaintiff had one for sale. Later the defendant, her husband and her sontraveled to South B and saw the Nissan matatu which was not in workingcondition. They negotiated and agreed at Kshs. 180,000/= as purchase pricefor the Nissan matatu. On the day the negotiations took place no payment

Was made. On 25 October, 1999 the defendant with her son went to thePlaintiffs home they paid the Plaintiff Kshs. 10,000/= in cash in the presenceof the Plaintiffs children and one Juma. The defendant further stated thatshe would pay the balance sum of Kshs. 170,000/= later. She then gave tothe Plaintiff a banker's cheque of Kshs. 170,000/= on 27th October, 1999. She produced a certified copy of the said cheque as Exhibit A. This was thebalance of purchase price. The Plaintiff then suggested they engage alawyer to draw up an Agreement of Sale. In the interim the defendant satesthat she had towed the matatu to her house. On 28 October, 1999 while thedefendant was in her office the Plaintiff went there and said he needed cashand not a cheque for his daughter who was going to Mombasa. Thedefendant then asked her boss to cancel the banker's cheque and gave thedefendant cash. They then proceeded to the Plaintiffs lawyer Jivanjee. Atthe lawyers office the Plaintiff claimed he needed Kshs.40,000/= for hisdaughter before completion of the agreement. The defendant gave theKshs.40,000/= in the presence of Jivanjee's secretary and Juma. The totalsum then paid to the Plaintiff was Kshs.50,000/= leaving a balance sum of Kshs. 130,000/=. The Plaintiff then left immediately saying that he wasgoing to get the log book and would be back at 2. 00 pm to sign theAgreement. When the Plaintiff came back he said the person with the logbook had gone to Mombasa. The agreement was then signed and Jivanjee'ssecretary signed as a witness. She then went back to her office. The sameafternoon Jivanjee called her. She took with her the Kshs. 130,000/= butfound that the Plaintiff had not brought the log book and was insisting thatthe defendant leaves the money with Jivanjee. The defendant said sherefused to pay the money unless the log book was produced. She then keptthe money in the bank safe. The defendant stated that her husband andJivanjee advised her not to pay the money unless the log book was produced.On or about 2nd November, 1999, the Plaintiff brought a copy of the logbook but refused to give the defendant a copy of the same. The defendantsuggested that they go together to the Registrar of Motor Vehicle's officewhere she would pay the said balance. Later, it was agreed that thedefendant's husband, Juma and the Plaintiff would go to the Registrar ofMotor Vehicle's office and sign transfer form. The Plaintiff continued toask for the balance of purchase price. The defendant then wrote a personalcheque which she later stopped because here husband told her that the filefor the subject motor vehicle was not available at the Registrar of MotorVehicle's Office. The defendant maintained that it was in court that she sawExhibit 3 a copy of records from the Registrar of Motor Vehicles in respectof the subject motor vehicle and exhibit 4 a copy of the log book in respectof the same vehicle.

The defendant further testified that her advocate in February 2001 confirmedthat the Plaintiff was indeed the owner of the said vehicle and attributed the delay in concluding the sale transaction to the Plaintiffs delay to producethe log book. The defendant continued to state that two gentlemen JohnNyabuto and Robert Onduso went to her and claimed that they had broughtthe said vehicle. She did not talk to them.

In conclusion the defendant stated that the Plaintiff never did what he had todo to transfer the vehicle. She had no objection to paying the balanceagainst a fresh transfer and the log book. She denied that she was in breachof the contract as she kept asking for the documents which the Plaintiffnever produced. The defendant contended that she did not have to pay thePlaintiff anything else. On the day of her testimony in court on 17th May,2001 the defendant said she was ready to give the Plaintiff the money thenext day if the Plaintiff was to give the log book and a freshly signedtransfer.

In cross examination the defendant agreed that there was no warranty as tothe motor vehicles condition or suitability. She further admitted that theprice of Kshs. 180,000/= was to be paid on signing of the agreement. Shemaintained that at the time of the agreement she had the full amount. Shedenied canceling the contract. In further cross examination the defendantstated that the issue was not failing to get the documents from the Plaintiff.She insisted that as at the time of her testimony in court, the money was stillin the bank. The defendant further stated in cross examination that when shegave the Plaintiff the first Kshs. 10,000/= he did not acknowledge thepayment in writing. She however, stated that when she paid Kshs.40,000/=the lawyers secretary was present. The defendant admitted that the transferwas received by the Registrar of Motor Vehicles on 9th November, 1999 and the cheque was stopped on 10th November, 1999 after presentation by thePlaintiff on 9th November, 1999.

In re-examination the defendant stated that she stopped the cheque forKshs. 130,000/= because the Registrar did not have the file for the vehicle.

DW 2 Edward Gatu Mingoiru testified for the defendant and said that he wasthe defendant's husband. He stated further that the Plaintiff, the defendantand himself negotiated and agreed on Kshs. 180,000/= as the price of the saidmotor vehicle. The following day the defendant and her son tookKshs. 10,000/= to the Plaintiff. Later the defendant paid a furtherKshs.40,000/= at lawyer Jivanjee's office. Later at the defendant's office,the Plaintiff asked for balance of purchase price but the defendant and DW 2refused until transfer of the vehicle. The Plaintiff however, refused to go tothe Registrar of Motor Vehicle's office unless he was paid the balancewhereupon the defendant issued a personal cheque to him on condition thathe would come back for cash on transfer. At the registrar's office therelevant file could not be found and DW 2 said balance of purchase pricewould not be released. A quarrel insured and DW 2 was slapped by thePlaintiff. Later the defendant stopped the cheque. At the registrar's officelater DW 2 was told of fake log books and that he should not pay the balancewithout the file. DW 2 said he saw the log book for the first time in court on8th November, 2000. It turned out that he had been in court during theevidence of the Plaintiff and the defendant.

In cross examination, DW 2 said that purchase price was to be paidimmediately the agreement was signed on 28th October, 1999. He maintained that the relevant file of the subject motor vehicle could not betraced at the Registrar's office. He however did not have any letter from theRegistrar that the file was missing. He further stated that the cheque forKshs. 170,000/= issued by the defendant was stopped because the relevantfile was not traced. He however did not know when the relevant file wastraced. He however saw the documents for the vehicle on 11th November,2000. He admitted that it was not a condition in the sale agreement thatdocuments be made available before payment of purchase price. It was alsonot in the agreement that purchase price be paid after transfer.

In re-examination DW 2 stated that a cashier at the Registrar of MotorVehicles office retained the documents because the relevant file was notavailable.

From the evidence availed, it is common ground that the Plaintiff sold motorvehicle registration No KAH 931 E to the defendant at Kshs. 180,000/=. It isalso common ground that the transaction between the Plaintiff and thedefendant was reduced into writing. It is further common ground that thesale agreement in respect of the said vehicle was executed by both thePlaintiff and the defendant. That sale agreement is exhibit 1. It is furthernot in dispute that the defendant took possession of the said motor vehiclesome time towards the end of October 1999 and has kept the motor vehiclesince.

The dispute is however on the amount owing by the defendant to thePlaintiff and when the same was to be paid. Exhibit 1; the Memorandum ofAgreement for sale at clause 4 says:

"Price: Kshs.l80,000/= to be paid in cash by the purchaser tothe vendor on the signing hereof."

Section 97 (1) of the Evidence Act Cap 8 provides:

"When the terms of a contract or of a grant or of any otherdisposition of property have been reduced to the form of a documentand in all cases in which any matter is required by law to be reducedto the form of a document, no evidence shall be given inproof of theterms of such contract, grant or other disposition of property or ofsuch matter, except the document itself, or secondary evidence of itscontents in cases in which secondary evidence is admissible underthe provisions of this Act."

Section 98 provides:

"When the terms of any contract or grant or other disposition ofproperty or any matter required by law to be reduced to the form of adocument, have been proved according to Section 97, no evidence ofany oral agreement or statement shall be admitted as between theparties to any such instrument or their representatives in interest forthe purpose of contracting, varying, adding to or subtracting fromits terms."

The defendant gave inconsistent reasons for failing to pay balance ofpurchase price. First the defendant stated that she did not pay balance ofpurchase price because the Plaintiff did not have the log book. The secondreason she gave for failure to pay balance of purchase price was that the filefor the motor vehicle at the Registrar of Motor Vehicle's Office was not traced. The third reason she gave for failure to pay the purchase price wasthat the Plaintiff never did what he had to do to transfer the vehicle. Finallyshe said in court before Hewett J that she was ready to pay the money thenext day if the Plaintiff gave the log book and freshly signed transfer.

The document headed "COPY OF RECORDS" issued by the Registrar ofMotor Vehicles in respect of motor vehicle registration number KAH 931 Eindicates that as at 9th March, 2000 the said vehicle was registered in thename of the Plaintiff. This document was produced as Exhibit 3 by thePlaintiff.

The Plaintiff also produced Exhibit 4 which is a copy of the RegistrationBook in respect of motor vehicle registration No KAH 931 E. This exhibitshows the Plaintiff as the owner of the said motor vehicle. The Registrar ofMotor Vehicles has at page 2 thereof stamped the book.

I have also seen in the Defendant's list of documents a form headed"Transfer of Ownership of Motor Vehicle or Trailer." It shows it was signedby the Plaintiff on 27th October, 1999.

The defendant admitted that she was in possession of the subject motorvehicle.

In the light of the evidence on record, the reasons given by the defendant forfailure to pay balance of purchase price cannot be believed. I therefore holdthat the defendant is in breach of the agreement of sale dated 28th October,1999.

I have now to determine the amount of purchase due from the defendant tothe Plaintiff under the Memorandum of Agreement of Sale. The Plaintifftestified that the balance of purchase price was Kshs. 160,000/=. This is theamount he claimed at paragraph (a) of the prayers. The Plaintiff testifiedthat the defendant paid Kshs.20,000/= on the day he released the motorvehicle to the defendant. Later the defendant gave him a cheque forKshs. 130,000/= being part payment of balance of purchase price. Thecheque was stopped by the defendant. The Plaintiff as at the time of trialwas still the holder of the said cheque. He produced it as exhibit 2. Thecheque was written on 8 November, 1999. The Plaintiff maintained that nofurther payment was made by the defendant.

The defendant testified that she paid to the Plaintiff a total of Kshs.50,000/=as deposit towards purchase price of the subject motor vehicle. She testifiedthat the first payment was of Kshs. 10,000/= in the presence of the Plaintiffschildren. The defendant further told the court she gave a banker's chequefor Kshs. 170,000/= on 27th October, 1999 which was refused by the Plaintiffas he wanted cash for his daughter who was going to Mombasa. She saysshe then paid to the Plaintiff Kshs.40,000/= in the presence of Jivanjee'ssecretary and Juma. Later she gave the cheque for Kshs. 130,000/= refereedto above. Juma and Jivanjee's secretary did not give evidence at the trial.The alleged payments of Kshs. 10,000/= and Kshs.40,000/= thereforeremained uncorroborated. The defendant may have been contend with herevidence. But I am far from convinced that these payments were made. Thedefendant all along knew that the Plaintiff was not admitting thesepayments. I do not see why the defendant could not call Juma and Jivanjee'ssecretary to confirm her story. I entertain doubt as to whether or not the defendant indeed passed the alleged banker's cheque for Kshs. 170,000/= tothe Plaintiff.

In the result I hold that the balance of purchase price due from the defendantto the Plaintiff was Kshs. 160,000/= and not Kshs. 130,000/= as alleged bythe defendant.

As I have already held that the defendant was in breach of the agreement ofsale of the subject motor vehicle, I now enter judgment for the sum ofKshs. 160,000/= as prayed at paragraph (a) of the prayers of the plaint.

The Plaintiff further claimed loss of use of motor vehicle at Kshs.3,500/=per day with effect from 9th November, 1999 to the date of the plaint. Thisis a claim for special damages. It is now settled that such damages needed tobe proved strictly. The Plaintiff in his testimony said:"I have suffered some hardship:

(i) I did not have the money

(ii) I took the income of Kshs. 3,5 00/=

This in my view could not and cannot amount to the damages having beenstrictly proved. The Plaintiffs claim to loss of use of the said motor vehicleis dismissed.

The Plaintiff also claimed damages for breach of contract. The effect of theorder for payment of balance of purchase price is to specifically enforce theagreement between the Plaintiff and the defendant. The damages payablewould be for loss arising from delay in the performance of the said contract.

The delay has been of about 4 years. The Plaintiff in his evidence gave noindication of the loss occasioned by the delayed performance. He istherefore only entitled to minimal damages. I award him Kshs.20,000/=

On the prayer for interest at commercial rates, the same is not granted as thePlaintiff did not show that he was entitled to the same.

It is now obvious that having found for the Plaintiff the remaining claim ofdamages in the counter claim is dismissed. The defendant on 6th February,2004 abandoned her claim under prayers (a), (b) and (c) of the counterclaim.

In summary judgment is hereby entered for the Plaintiff as follows:-

(a) Kshs. 160,000/= being balance of purchase price of motorvehicle registration No KAH 931 F

(b) Kshs.20,000/= as general damages for delayed performance of the contract of sale

(c) Interest on (a) above at court rates from the date of filing suit until payment in full.

(d) Interest on (b) above at court rates from the date of thisjudgment until payment in full

(e) Costs plus interest on costs as usual but the costs shall be on thesubordinate court scale as this suit ought not to have been filedin the High Court.

Dated at Nairobi this 19th day of March, 2004.

F. AZANGALALA

JUDGE

19. 3.2004