[2023] KEELC 20415 (KLR)

Ngahu v Kwa Ndege Self Help Group & 6 others (Environment & Land Case 496 of 2009) [2023] KEELC 20415 (KLR) (26 September 2023) (Judgment)

Neutral citation: [2023] KEELC 20415 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case 496 of 2009

MD Mwangi, J

September 26, 2023

Between

John Mwangi Ngahu

Plaintiff

and

Kwa Ndege Self Help Group

1st Defendant

Lawi Nyateng

2nd Defendant

R Onyango

3rd Defendant

Ndambuki

4th Defendant

Social Security Fund

5th Defendant

Geoffrey K Gathigi

6th Defendant

Abel Nyangaresi Okemwa

7th Defendant

Judgment

Background 1. Vide the Amended Plaint amended on 17th November, 2010, the Plaintiff seeks against the Defendants the following orders; -a.An injunction to restrain the defendants, their agents or servants or any other person or persons claiming under the defendants’ rights from transferring, alienating, remaining, developing and/or interfering or wasting the suit plots LR No. 97/21190/III/183, 184,185 and 186 pending the hearing and determination of this suit.b.A declaration that the suit plots rightfully belong to the Plaintiffc.General damagesd.Costs of this suite.Interest on (c) and (d) at court’s rates.

2. The Plaintiff’s case is that at all material times he was the lawful purchaser and/or allottee of all those plots known as LR Nos. 97/21190/111/183, 184, 185 and 186, held by the 1st Defendant in trust for him until payment of the purchase price in full. He alleges that he registered as a shareholder in the Society (Kwa Ndege Self Help Group) after paying the registration fee of Kshs. 4,700/= for each plot. He was issued with registration receipts Nos. 362, 363, 364 and 365 by the 1st Defendant thereby effectively making him the legal/purchaser of the suit properties.

3. He avers that since the suit properties were still registered under the National Social Security Fund, he was directed by the 1st Defendant to the National Social Security Fund (NSSF) to pay a further enrolment/ registration fee of Kshs. 500/= for each plot which he duly paid and the plots were identified to him and he commenced development.

4. The Plaintiff states that he later made efforts to pay the purchase price at the NSSF offices to no avail. He states that he was either told that the files were not available or that his name had not been registered despite having paid the full registration charges. The Plaintiff alleges that he had further paid monies directly to the 2nd Defendant as an official of the 1st Defendant and for the benefit of the 1st Defendant.

5. The Plaintiff alleges that to his surprise, when he visited the suit plots on or about the 28th September 2009, he found that the 6th, 7th and 8th Defendants had unlawfully commenced developments therein to his detriment. He avers that it is apparent that the Defendants had allocated the suit plots to other persons in breach of the contract with him.

Response by the Defendants 6. The 1st, 2nd, 3rd and 4th Defendants filed a statement defence dated 2nd March, 2011 through the firm of M.A. Abong’o & Co. Advocates in which they denied the Plaintiff’s claim against them putting the Plaintiff to strict proof. The said Defendants did not deny that the Plaintiff had been allotted the suit premises, however, they denied that they held the said plots for the Plaintiff in trust until payment of the purchase price in full.

7. The said Defendants’ contention was that the Plaintiff was only registered as a Shareholder of the 1st Defendant upon paying the registration fees and was subsequently issued with receipts to that effect. They denied that the Plaintiff was the legal allottee/purchaser of the suit plots. They pray that the Plaintiff’s suit be dismissed with costs.

8. The 5th, 6th, 7th and 8th Defendants did not enter appearance nor file a statement of Defence. From the Process Server’s Affidavit of Service, one John Kweyu Ngolo deponed on 6th June, 2013 and filed on the same date, it is evident that the 5th Defendant was served physically at its offices on the 26th May, 2011. The 6th, 7th and 8th Defendants on the other hand were served by way of substituted service by placement of an advertisement in the Daily Nation Newspaper on the 11th May, 2011.

Evidence adduced 9. The case proceeded to hearing with the Plaintiff testifying in his case as the sole witness. The Defendants did not participate in the hearing.

10. At the hearing of the case, the Plaintiff, John Mwangi Ngahu testified as PW1 in support of his case. He adopted his witness statement dated 6th June, 2013. He also produced the documents on the Plaintiff’s List of Documents dated 6th June, 2013. They were marked as PEs 1-6 in the order in which they are listed.

11. From his witness statement dated 6th June 2023, the Plaintiff claims that he became a shareholder of the 1st Defendant by paying the prescribed fee of Kshs. 4,700/- per plot and Kshs. 400,000/- being the purchase price commitment fee. Having met the said requirements, and having been allocated the four plots, the 1st to the 4th Defendants referred him to the 5th Defendant, NSSF for registration. The registration was effected upon payment of the registration fee of Kshs.500/- per plot. The Plaintiff allegedly commenced developments on the suit properties upon registration.

12. The Plots were in the name of the 5th Defendant and all dues for the plots were therefore to be paid to it before the plots could be released to the 1st Defendant for eventual transfer to the shareholders. The Plaintiff’s efforts to pay to the 5th Defendant the balance of the purchase price were unsuccessful. He alleges that he was told that his name was not on record and that the files were missing.

13. On the 28th September 2009, the Plaintiff found that the 6th to 8th Defendants had allegedly invaded the suit properties and commenced construction thereon. Upon enquiry, they informed the Plaintiff that they had been sold the plots by the 1st Defendant.

14. The Plaintiff testified that he had intended to develop a residential unit on the plots.

Court’s Directions 15. The court directed Counsel for the Plaintiff to file written submissions at the close of the Plaintiff’s case. Counsel complied and filed submissions dated 10th July, 2023. The Court has had the opportunity to read the Plaintiff’s submissions which now form part of the Court’s record.

Issues for determination 16. Upon consideration of the Plaintiff's amended Plaint, the statement of Defence filed, the testimony adduced and the written submissions filed on behalf of the Plaintiff, the issues for determination in the court’s opinion are:a.Whether the Plaintiff is the legal owner of the suit properties.b.Whether the Plaintiff is entitled to the orders sought in the Plaint.

Analysis and Determination A. Whether the Plaintiff is the legal owner of the suit property 17. I begin by pointing out that despite the Plaintiff’s case being undefended, the burden of proof is still on him to prove his case on a balance of probabilities. Sections 107 and 109 of the Evidence Act, Cap 80 Laws of Kenya provides that:-“107. Whoever desires any court to give judgment as to any legal right or liability dependent on facts which he asserts must prove that those facts exist.109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that proof of the fact shall lie on any particular person.”

18. In the case of Kirugi andanother v Kabiya & 3 others (1987) KLR 347 the Court of Appeal held that: -“The burden was always on the plaintiff to prove his case on a balance of probabilities even if the case was heard as a formal proof. Likewise, failure by the defendant to contest the case does not absolve a plaintiff of the duty to prove the case to the required standard.”

19. Similarly, in the case of Gichinga Kibutha v Caroline Nduku, (2018) eKLR, the court held that: -“It is not automatic that instances where the evidence is not controverted the claimant shall have his way in court. He must discharge the burden of proof. He must proof his case however much the opponent has not made a presence in the contest.”

20. The Plaintiff in this case argues that he is the legal owner of the suit properties. That the suit properties were held by the 1st Defendant in trust for him until payment of the purchase price in full.

21. The issues in this case are rather straight forward in my opinion. In his statement, the Plaintiff has clearly stated that the plots were in the name of the 5th Defendant, NSSF. It is not clear what the relationship between the 1st Defendant and the 5th Defendant was. The Plaintiff has not bothered to explain the same to the court. The court is left groping in the dark for answers. Was the 1st Defendant purchasing the plots from the 5th Defendant with an intention of reselling them to the Plaintiff? That seems to be the most likely scenario.

22. All that the Plaintiff has stated is that the Plots were in the name of the 5th Defendant and all dues for the plots were therefore to be paid to it before the plots could be released to the 1st Defendant for eventual transfer to the shareholders. No agreement between the 1st and the 5th Defendant was produced to support that allegation. The purchase price too has not been disclosed. What is clear from the Plaintiff’s witness statement is that he did not pay the purchase price for the plots in full. He stated that ‘he made frantic efforts to make payment of the remaining purchase price monies to the 5th Defendant to no avail’.

23. The Plaintiff has not established a nexus between himself and NSSF. There was no contract between them.

24. The Plaintiff then testified that on the 28th September 2009, he found out that the 6th to 8th Defendants had invaded the suit properties and commenced construction. They explained to him upon enquiry that they had purchased the plots from the 1st Defendant.

25. How did the Plaintiff then become the legal owner of the plots?

26. In the Plaintiff’s own words, “it is apparent that the Defendants had allocated the suit properties to other persons and in breach of the contract”

27. On the other hand, the Plaintiff’s claim falls short of the requirements of Section 3(3) of the Law of Contract Act. Section 3(3) of the Law of Contract Act provides that; -“No suit shall be brought upon a contract for the disposition of an interest in land unless:-(a)The contract upon which the suit is found-(i)Is in writing(ii)Is signed by all the parties thereto; and(b)The signature of each party signing has been attested by a witness who is present when the contract was signed by such party.”

28. The Court’s finding is that the Plaintiff has not adduced sufficient evidence to support his claim of ownership of the plots. Further, the Plaintiff’s claim offends the clear provisions of section 3(3) of the Law of Contract Act. The claim by the Plaintiff is not sustainable in law.

B. Whether the Plaintiff is entitled to the orders sought in the Plaint. 29. Having made a finding that the Plaintiff has failed to prove his claim of ownership of the suit properties, his prayer for a declaration to that effect automatically fails. The Plaintiff prayed for an injunction which he has framed in the amended plaint as “pending the hearing and determination of this suit”. It is a prayer for a temporary relief which should not have even been put in the plaint in the first place. The same is overtaken by events, and cannot be granted anyway as the Plaintiff has not proved ownership of the suit properties.

30. The other prayer sought by the Plaintiff was for general damages. The Plaintiff accused the 1st to 4th Defendants of breach of contract for selling the plots to the 6th to 8th Defendants. That is the basis of his claim for general damages.

31. As a rule, general damages cannot be awarded in cases of breach of contract. The Court in the case of Consolata Anyango Ouma v South Nyanza Sugar Company Ltd (2015) eKLR explained the reason why general damages are not awarded in cases of breach of contract. it stated that: -“The next question is whether the appellant was entitled to damages as a result of the breach. As a general principle, the purpose of damages for breach of contract is, subject to mitigation of loss, the claimant is to be put as far as possible in the same position he would have been if the breach complained of had not occurred. This is principle is encapsulated in the Latin phrase ‘restitutio in integrum’ (see Kenya Industrial Estates Ltd v Lee Enterprises Ltd NRB CA Civil Appeal No. 54 of 2004 [2009] eKLR, Kenya Breweries Ltd v Natex Distributors Ltd Milimani HCCC No. 704 of 2000 [2004] eKLR). The measure of damages is in accordance with the rule established in the case of Hadley v Baxendale (1854) 9. Exch. 341 that the measure of damages is such as may be fairly and reasonably be considered arising naturally from the breach itself or such as may be reasonably contemplated by the parties at the time the contract was made and a probable result of such breach (see Standard Chartered Bank Limited v Intercom Services Ltd & Others NRB CA Civil Appeal No. 37 of 2003 [2004] eKLR). Such damages are not damages at large or general damages but are in the nature of special damages and they must be pleaded and proved (see Coast Bus Service Ltd v Sisco Murunga Ndanyi & 2 others, NRB CA Civil Appeal No. 192 of 92 (UR) and Charles C. Sande v Kenya Co-operative Creameries Ltd, NRB CA Civil Appeal No. 154 of 1992 (UR)). ….”

32. I must add that the Plaintiff’s claim would have been for monies paid against the persons he paid the monies, being the 1st to the 4th Defendants.

33. Accordingly, I disallow the Plaintiff’s claim for general damages for breach of contract.

Conclusion 34. The upshot of the above is that the Plaintiff’s case is dismissed in its entirety but with no orders as to costs since the Defendants did not participate in the case.It is so ordered.

JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 26TH DAY OF SEPTEMBER, 2023. M. D MWANGIJUDGEIn the virtual presence of:Mr. Nduati for the PlaintiffNo appearance for the Defendants