[2024] KEELC 864 (KLR)

Njenga & another v Muchina & 2 others (Environment & Land Case 440 of 2016) [2024] KEELC 864 (KLR) (22 February 2024) (Judgment)

Neutral citation: [2024] KEELC 864 (KLR)

Republic of Kenya

In the Environment and Land Court at Nakuru

Environment & Land Case 440 of 2016

A Ombwayo, J

February 22, 2024

Between

Samuel Muna Njenga

1st Plaintiff

Nancy Kabura Njenga

2nd Plaintiff

and

Jesse Muchina

1st Defendant

Abdul Ghani Kipkemboi Komen

2nd Defendant

Abdul Khalid Kipkemboi Komen

3rd Defendant

Judgment

1. The Plaintiffs commenced this suit vide an Amended Plaint dated 12th February, 2020 against the Defendants seeking the following orders:a.Kshs. 4,000,000 being refund of the purchase price.b.General damages for breach of contract.c.Kshs. 4,000,000 being the agreed 10% liquidated damages.d.Costs and interest of this suit.

2. The 1st Defendant filed his Amended Defence and Counter claim dated 6th July, 2020. It sought for the following orders in its counter claim:a.That a declaration be issued to declare that the 3rd and 4th Defendants are the lawful owners of the suit land measuring 5 acres forming part of LR 10013/4 by dint of the sale agreement dated 19th October, 2011. b.That an order of eviction be issued to remove the 1st and 2nd Defendants or any other person other than the 3rd and 4th Defendants from the 5 acres forming part of LR 10013/4 in actual or constructive occupation of the said suit property.c.In the alternative the 1st and 2nd Defendants be ordered to refund to the 3rd and 4th Defendants the sum of Kshs. 4,000,000 paid as purchase price and any other damages awardable to the 3rd and 4th Defendants being damages suffered as a direct consequence of the illegal actions of the 1st and 2nd Defendants.d.The costs of the suit be borne by the 1st and 2nd Defendants.e.Any other relief that this Honourable court may deem fit to grant.

3. The 2nd and 3rd Defendants filed their Defence to the Counter claim where they averred that the issue had already been addressed in ELC 111 of 2016 and judgment delivered and therefore the same amounts to res judicata. They further averred that the counter claim is time barred as the sale agreement had been made on 1st September 2011. They urged the court to dismiss the counterclaim with costs.

Plaintiffs’ Case 4. Samuel Muna Njenga the 1st Plaintiff herein testified as PW1. He produced his statement dated 17th October, 2016 which he relied as his evidence in chief. He testified that he purchased a portion of the suit property LR No. 10013/4 from the 1st Defendant. He testified that they entered into an agreement dated 19/10/2011 where he purchased the suit property for a consideration of Kshs.4,000,000/=. He further testified that he purchased 5 acres out of the 7 acres while the other 2 acres purchased by a different person.

5. He produced the sale agreement produced as PEX1. He also testified thst the sale agreement had been signed by himself and his wife, the 2nd Plaintiff herein and the Defendants’.

6. He was referred to the agreement where he testified that the 2nd and 3rd Defendants were legal beneficiaries since the 1st Defendant had purchased the land from 2nd and 3rd defendants. He went on to testify that he had paid the entire consideration through the lawyer M/s Seth & Wathigo who was representing both of them. He produced the banking slips as PEX 2 (a) (b) (c) and (d) for the sum of Kshs. 4,00,000. He testified that the lawyers through a letter dated 19th March, 2012 wrote to him confirming that full payment had been made. He produced the said letter as PEX3 after which he then took possession.

7. It was his evidence that the 1st Defendant received the money from the advocates. He testified that he had been in possession up to sometime in 2016. He explained that on 22nd April, 2016 he visited his land and was accosted by a group of men 9 about 15 in number including the 2nd Defendant who chased him out. He testified that the men were armed with panga and machetes who claimed that he did not own the suit land. He testified that he swore an affidavit explaining why he discharged the gun. He produced the affidavit sworn on 9th May, 2016 as PEX 4.

8. It was his testimony that he came to court after the incident to file the instant suit. He was referred to paragraph 5 of agreement where he testified that the completion date was within 120 days of execution of agreement. He added that it was then that the completion documents were to be availed to him but that never happened. He testified that the court had granted an order that the status quo of the suit property be maintained but that notwithstanding the 2nd and 3rd Defendants caused subdivisions into numerous plots. He further testified that the 2nd and 3rd Defendants sold the plots to third parties after which their advocates wrote to Ogeto & co advocates regarding the sales. He produced the said letter as PEX 5. He testified that he also wrote to the 1st Defendants advocate vide a letter dated 24th October, 2019 which he produced as PEX 6. He testified that he could not return to the land as it is already occupied. He sought for a refund of his money.

9. Upon cross examination by Mr. Ndubi for the 1st Defendant, he confirmed that the 1st Defendant disclosed he had purchased 7 acres of the suit land form the 2nd and 3rd Defendants. He admitted that he was not aware that the 1st Defendant did not hold a title to the land. PW1 was referred to paragraph (a) of the sale agreement where he confirmed that it was only the 1st Defendant who had a sale agreement. He further confirmed that the 2nd and 3rd Defendants were the beneficiaries and they were to sign the transfer to him. He confirmed that the 2nd and 3rd Defendants were fully involved in the sale and they never raised any objection to the said sale. He also confirmed that the other person who had bought the balance of 2 acres from the 1st Defendant had also been chased.

10. He stated that he fenced, planted trees and cultivated for 3 years after he took possession. He added that his neighbor had constructed a residential house on his 2 acres portion. He stated that his occupation had been peaceful until April 2016 when the 2nd and`3rd Defendant forcibly ejected them from the land. He further stated that the 1st Defendant never interfered with his possession and/or use of the land. He also stated that he was aware that the 1st Defendant’s company went to court in another matter and an order preserving the property was issued even though the 2nd and 3rd Defendant had already subdivided the land with the order in place.

11. PW1 stated that the 2nd and 3rd Defendant sold the land to the 1st Defendant who resold to other persons since they were evicted. He stated that his only claim is for refund from the 1st Defendant to whom he paid the money.

12. Upon cross examination by Ms. Rotich for the 2nd and 3rd Defendants, he confirmed that the parties to the agreement dated 19/10/2011 were himself and the 1st defendant. He further confirmed that the 2nd and 3rd Defendants never participated in the negotiations. PW1 stated that he paid the 1st Defendant the total consideration and that the completion documents were to be availed by the vendor’s advocates. He also stated that the 2nd and 3rd Defendants appended their signatures to the agreement as the legal beneficiaries. He stated that the vendor was the one to pay him back the money.

13. Upon reexamination, he stated that he had bought the suit land for his use and that the 1st Defendant’s advocates were supposed to give him the completion documents. He stated that the letter that confirmed completion was dated 19/3/2012This marked the close of the Plaintiff’s case.

Defendant’s Case 14. The 1st, 2nd and 3rd Defendant did not give any evidence.

Submissions 15. The Plaintiffs filed their submissions dated 28th December, 2023 on 3rd January, 2024. They gave a summary of the case and submitted that the only evidence was that of the Plaintiff which was never challenged. They submitted that they tendered evidence for proof of purchase of the suit property vide the sale agreement. They submitted that they also produced receipts to show payment of the purchase price to the firm of Sheth Wathigo Advocates. The Plaintiff submitted that the 2nd Defendant through his pleadings admitted that the purchase price had been paid in full.

16. They submitted that they were never issued with the completion documents ten years after purchase of the suit property. The Plaintiff relied on the case of Photo Production v Securicor Ltd [1980] AC 827 and submitted that the Defendants jointly and severally breached the sale agreement dated 19th October, 2011. They submitted that the 1st, 2nd and 3rd Defendants signed the sale agreement hence they were bound by the said terms which were very clear.

17. In conclusion the Plaintiffs submitted that they have demonstrated the instances of the breach and urged the court to find the Defendants jointly and severally liable.The Defendants did not file any submissions.

Analysis and Determination 26. This court has carefully considered the pleadings and the evidence on record and is of the view that the sole issue for determination is whether the Plaintiff is entitled to the orders sought.Order 24 rule 4 of the Civil Procedure Rules provides as follows:Procedure in case of death of one of several defendants or of sole defendant(1)Where one of two or more defendants dies and the cause of action does not survive or continue against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the cause of action survives or continues, the court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.(2)Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.(3)Where within one year no application is made under subrule (1), the suit shall abate as against the deceased defendant.

27. Upon death of a Defendant and on application, the court has the discretion to substitute the deceased Defendant and if no application is made after one year, the suit abates. In the instant case, the 1st Defendant died in November, 2022 and counsel for the Plaintiff sought for time to substitute but the same was not done.

28. This court endorsed the abatement of the suit against the 1st Defendant on 5th May, 2023.

29. It is not in dispute that the Plaint and the 1st Plaintiff’s evidence on record shows that the claim against the Defendants is pegged on breach of contract against the 1st Defendant. It is also clear that the Plaintiffs claim is an order of refund of the purchase price for the suit property from the 1st Defendant.

30. During evidence, the 1st Plaintiff confirmed that the 2nd and 3rd Defendants never participated in the negotiations. He also confirmed that he paid the 1st Defendant the full total consideration. He stated that his only claim was for refund from the 1st Defendant to whom he paid the money.

31. The upshot is that this suit having abated against the 1st Defendant, the cause of action against him does not survive.

32. Consequently, the Plaintiffs suit is dismissed with no orders as to costs.It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 22ND DAY OF FEBRUARY 2024. A.O.OMBWAYOJUDGE