[2019] KEHC 10423 (KLR)
The court held that the appellant, having presented himself as an agent with authority to sell the land and having received the purchase price from the respondents, was liable to refund the purchase price when the transaction failed. The respondents were not parties to the internal arrangements between the appellant...
Source-derived case information.
- Citation
- [2019] KEHC 10423 (KLR)
- Parties
- Appellant: Samson Waliaula; Respondent: Hezekiah Omuchilo Kabalar; Respondent: Jeremiah Shinyenzi Induli
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 29 of 2013
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- HK Chemitei
- Legal Topics
- Sale of Land, Agency Law, Power of Attorney, Refund of Purchase Price
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samson Waliaula
Appellant
Hezekiah Omuchilo Kabalar
Respondent
Jeremiah Shinyenzi Induli
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the appellant, having received the purchase price as agent under a power of attorney, is liable to refund the respondents after the sale failed to complete.
- 2 Whether the termination of the power of attorney absolved the appellant from liability to the respondents.
- 3 Whether the trial court erred in ordering the appellant to refund the purchase consideration.
Ratio Decidendi
The court held that the appellant, having presented himself as an agent with authority to sell the land and having received the purchase price from the respondents, was liable to refund the purchase price when the transaction failed. The respondents were not parties to the internal arrangements between the appellant and his principal, nor were they informed of the revocation of the power of attorney at the time of the transaction. The appellant's recourse, if any, lies against his principal, not the respondents. The trial court's order for refund was therefore correct and could not be faulted.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KITALE
CIVIL SUIT NO. 29 OF 2013
(Being an appeal arising from Kitale Chief Magistrate's court
inCivil Suit No. 239 of 2015 delivered by M.N. Gicheru
Chief Magistrate on 6/8/2013)
SAMSON WALIAULA.............................................................APPELLANT
VERSUS
HEZEKIAH OMUCHILO KABALAR........................1ST RESPONDENT
JEREMIAH SHINYENZI INDULI .............................2ND RESPONDENT
JUDGMENT
1. The details of this appeal are clear and straight forward.
The Respondents purchased 10 acres out of land parcel No. Trans Nzoia/Sinyerere/246 for a sum of Kshs 600,000/= which amount was paid to the appellant. The sale agreement dated 1/02/2003 stated as much.
2. The suit land apparently belonged to 2nd defendant known as Dr. Moses Otsyula. The Appellant had a power of attorney. From the record it appears that the transaction was never completed. The Appellant testified that the power of attorney was cancelled by the donor before the conveyencing exercise was completed. By then however he had already transferred about Kshs 500,000/- to the 2nd Defendant account. The bank slips were produced to that effect.
3. The Respondents then initiated the suit claiming a refund of the purchase consideration together with costs and interest. The trial court found in their favour and ordered that they be refunded the same.
4. The Appellant's grounds of appeal as contained in the Memorandum of Appeal dated 27th August 2013 inter alia states that the trial court failed to take into consideration that the appellant had already passed the purchase consideration to the 2nd Defendant, the owner of the land; that the Power of Attorney had been terminated and thus the appellant discharged and that the trial court failed to appreciate the agency laws.
5. I have read the proceedings at the trial court as well as the submissions by the parties herein. What is evidently not disputed is that the Respondent entered into a sale agreement with the appellant and they paid the sum of Kshs 600,000/= as a purchase consideration.
6. As to whether the Appellant had a Power of Attorney or not in my view has not for the Respondent to inquire. The Appellant presented himself as one with authority to dispose off the land. The appellant believed him. He signed the contract and received the money or any form of agency agreement He even went ahead and procured land control board consent in favour of the Respondent which apparently never crystallised.
7. He stated that the 2nd Defendant (donor, or principal ) for that matter rescinded and revoked the Power of Attorney. How, one may ask, has that to do with the Respondents? Infact, by the time he was given the authority the Respondents were not aware nor were they consulted. At the time they entered into the agreement, they believed the Appellant.
8. Consequently and without wasting much judicial time, it is upon the Appellant to follow up his donor. If he transmitted the money to his account, as he alleged, then it was not really the business of the Respondents as they were not a party to the power of attorney. The Respondents were not told to deposit the money in the donors account but the Appellant. From the evidence on record it appears that they had their own understanding.
9. The trial court findings cannot be faulted. Let the Appellant follow up his donor for a refund if indeed he paid him the amount given by the Respondents. Looking at the sale agreement Dr. Moses Otsyula apparently did not sign anywhere as he had given authority to the Appellant vide Power of Attorney No. 233/2001.
10. This appeal is dismissed with costs to the appellant.
Delivered, signed and dated at Kitale this 22nd day of January, 2019.
_______________
H.K. CHEMITEI
JUDGE
22/1/19
In the presence of:
Bungei for Nyamu for Appellant
No appearance for Respondent
Court Assistant – Kirong
Judgment read in open court.