[2018] KEELC 4082 (KLR)
The court found that the dispute involved contested computations of interest and conflicting claims regarding payments made under a land sale agreement. Since both parties presented differing calculations and there was a factual dispute as to whether Kshs.400,000 was paid, the matter could not be resolved summarily....
Source-derived case information.
- Citation
- [2018] KEELC 4082 (KLR)
- Parties
- Plaintiff: Rebecca Chepkoech Kamoing; Defendant: Michael Waweru Mwangi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 744 of 2016
- Procedural Posture
- Notice of Motion / Ruling on Interlocutory Application
- Outcome
- Application to strike out plaint dismissed; order for accounts granted; costs to applicant.
- Legal Topics
- Sale of Land, Specific Performance, Interest on Purchase Price, Accounting of Payments
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rebecca Chepkoech Kamoing
Plaintiff
Michael Waweru Mwangi
Defendant
Procedural Posture
Notice of Motion / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the plaint and related pleadings should be struck out as an abuse of court process.
- 2 Whether judgment should be entered for the defendant on the counterclaim based on alleged overpayment of interest.
- 3 Whether the dispute over interest and payment requires the taking of accounts.
Ratio Decidendi
The court found that the dispute involved contested computations of interest and conflicting claims regarding payments made under a land sale agreement. Since both parties presented differing calculations and there was a factual dispute as to whether Kshs.400,000 was paid, the matter could not be resolved summarily. The court held that striking out the suit was inappropriate as there were triable issues that required the taking of accounts to determine the correct amount due, if any. The court therefore rejected the application to strike out the pleadings and instead ordered that accounts be taken within one month to resolve the dispute over interest and payments.
Court Disposition
Application to strike out plaint dismissed; order for accounts granted; costs to applicant.
Orders
- Prayer to strike out plaint and related pleadings is rejected.
- Parties are ordered to take accounts within one month from the date of the ruling.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT & LAND COURT OF KENYA
AT MILIMANI
ELC CASE NO. 744 OF 2016
REBECCA CHEPKOECH KAMOING…………………………..…..PLAINTIFF
=VERSUS=
MICHAEL WAWERU MWANGI…………………………………..DEFENDANT
RULING.
The Defendant/Applicant filed a Notice of Motion dated 17th March 2017, in which he sought the following orders;-
1. That the Honourable Court be pleased to strike out the Plaint and the Plaintiff’s reply to defence, and defence to counter-claim dated 2nd April 2016 and 10th November 2016 respectively and to enter Judgement as prayed for by the Defendant in the Counter-Claim.
2. That in the alternative to prayer (1) above, this Honourable Court be pleased to order that parties take account.
3. That the cost of this application be provided for.
2. The applicant entered into a sale agreement with the Respondent on 3rd March 2014, in which the Respondent agreed to sell to the applicant land known as LR No. 23279/2 at Karen for Kshs.21,000,000/. It was a term of the agreement that if the Respondent did not clear the purchase price at the completion date, any outstanding balance was to attract interest at the rate of 20%.
3. The applicant did not complete payment of the purchase price as at the completion date. He cleared payment of the purchase price on 15th August 2014. The respondent invoked the clause on interest and demanded that he applicant pays interest as per the agreement. The applicant did not respond to the demand forcing the Respondent to file this suit in which she claimed interest of Kshs.776,500/=.
4. The applicant now contends that the respondent has failed to disclose that Kshs.400,000/= was deposited into the account of her Advocate which amount was an estimate of the accrued interest being demanded; that according to the applicant, the interest due was Kshs.276,547 and that since the respondent was paid Kshs.400,000/= the Respondent owes the applicant Kshs.123,453 being the amount over what was due to the respondent and this is the amount which the applicant claims in his counterclaim.
5. The applicant therefore contends that the Respondent’s plaint and reply to defence and defence to counter-claim is an abuse of the Court process and the same should be struck out and judgement entered for the applicant in the counter claim.
6. The Respondent has opposed the applicant’s application based on a replying affidavit sworn on 19th October 2017 in which she contends that the applicant’s lawyer did not inform her lawyer that Kshs.400,000/= had been paid into his account and that the applicant’s lawyer has not provided the original transfer receipt despite being asked to do so.
7. The Respondent’s lawyer had asked the applicants lawyer to take accounts but the applicant’s lawyer never responded.
8. I have considered the applicant’s application as well as the opposition to the same by the Respondent. This is not a suit which can be struck out. There are issues which are raised which have to be determined. The applicant has come up with his own computation of interest. The Respondent has too come up with her own computation. There is an issue as to whether kshs.400,000/= was paid or not. I therefore reject prayer (1) of the Notice of Motion. This is a matter which should be resolved by taking accounts. I accordingly allow prayer (2) of the Motion. The accounts should be taken within one (1) month from the date of this ruling. The applicant shall have costs of this application.
It is so ordered.
Dated, Signed and delivered at Nairobion this 5thday of March 2018.
E.O.OBAGA
JUDGE
In the absence of parties who were aware of the date and time for ruling.
Court Assistant: Hilda
E.O.OBAGA
JUDGE