[2021] KEELC 4562 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA

AT NAKURU

ELC NO. 440 OF 2016

SAMUEL MUNA NJENGA............................................................1ST PLAINTIFF

NANCY KABURA MUNA..............................................................2ND PLAINTIFF

VERSUS

JESSEE MUCHINA NJOROGE....................................................1ST DEFENDANT

ABDUL GHANI KIPKEMBOI KOMEN.....................................2ND DEFENDANT

ABDUL KHALID KIPKEMEI KOMEN.......................................3RD DEFENDANT

ABDUL KHADHIR KIPLAGAT KOMEN....................................4TH DEFENDANT

R U L I N G

1. The plaintiff’s Notice of Motion application dated 19th August 2020 which is the subject of this ruling seeks the following orders:-

1. That this Honourable court be pleased to enter judgment upon admission against the 1st defendant for the sum of Kshs.4,000,000/= as prayed in the plaint.

2. That in the alternative, the 1st defendant’s defence and Counterclaim be struck out and judgment be entered in favour of the plaintiff as prayed in the plaint.

3. That the costs of this application be borne by the 1st Defendant in any event.

2. The application was expressed to be brought under Order 2 Rule 15 (1) (b) (c) and (d), Order 13 Rule 2, Order 51 Rule 1 of the Civil Procedure Rules and sections 1A, 1B and 3A of the Civil Procedure Act. The application was supported on the grounds set out on the body of the application and the affidavit sworn in support of the application by Samuel Maina Njenga, the 1st plaintiff herein.

3. It is the plaintiffs case that the 1st defendant has admitted in his pleadings receiving the sum of Kshs4,000,000/= from the plaintiff being for purchase of land that the 1st defendant never transferred and/or caused to be transferred to the plaintiffs. The plaintiffs further averred that to the 1st defendants knowledge and information, he was aware the plaintiffs were dispossessed of the land he purportedly sold to them and hence there was a total failure of consideration. The plaintiffs further averred the subject land the 1st defendant was purportedly selling to the plaintiffs, was following the eviction of the plaintiffs therefrom, and subdivided sold and transferred to other persons by the 2nd and 3rd defendants. The plaintiffs therefore, contend the 1st defendant did not possess any good title that he could pass to the plaintiffs in regard to the land the subject of the sale and accordingly the 1st defendant cannot have any plausible defence to the plaintiffs claim for the refund of Kshs.4,000,000/= paid as consideration for the non-existent land. The plaintiffs thus contend the 1st defendant’s defence raises no triable issue to necessitate the matter to go to trial and prays that judgment be entered summarily for Kshs.4,000,000/= in their favour as the 1st defendant has no viable defence to their claim.

4. The 1st defendant filed a replying affidavit sworn on 10th September 2020 in opposition to the plaintiffs application for summary judgment and/or in the alternative for striking out of the 1st defendant’s defence. The 1st defendant admits he sold to the plaintiffs a portion of 5 acres out of land parcel LR No. 10013/4 which measured a total of 7 acres which he in turn stated he had purchased from the 2nd and 3rd defendants. The 1st defendant admitted he entered into the sale agreement to sell to the plaintiffs the 5 acres portion for Kshs4,000,000/= but stated that the plaintiffs were aware he had bought the land he was selling to them from the 2nd and 3rd defendants who had by then not given him tittle to the land. The 1st defendant stated he granted the plaintiffs possession of the portion of 5 acres and henceforth any proprietary interest that he had over the land was extinguished. The 1st defendant further stated that the 2nd and 3rd defendants at the time he sold the portion of 5 acres to the plaintiffs, sanctioned and acknowledged the sale. The 1st defendant argued that he performed his obligations to the plaintiffs as he gave the plaintiffs vacant possession of the 5 acres he sold to them until the 2nd and 3rd defendants ejected the plaintiffs therefrom.

5. The 1st defendant asserted that it was the 2nd and 3rd defendants who interfered with the plaintiffs occupation and possession of the portion of 5 acres they purchased. He stated he had fully paid the 2nd and 3rd defendants the full consideration for the portion of 7 acres he purchased from them and out of which he sold 5 acres to the plaintiffs. The 1st defendant thus avers that it was the 2nd and 3rd defendants who were to blame for disrupting the plaintiffs occupation of the portion of 5 acres in regard to which he had relinquished his interest and the beneficial ownership thereof vested exclusively with the plaintiffs. The 1st defendant stated that in his pleadings he merely admitted the existence of the agreement between himself and the plaintiffs and the agreement between himself and the 2nd and 3rd defendants and contended the admission was not such as would amount to admission of owing the plaintiffs a sum of Kshs 4,000,000/= so as to invite the entry of a summary judgment for the same in favour of the plaintiffs.

6. The plaintiffs and the 1st defendant argued the application by way of written submissions. I have perused the submissions filed by the parties. The parties have in their submissions gone into considerable detail to restate the facts and background of the matter and have separately referred to various court decisions to support the positions they respectively hold.

7. The singular issue for determination is whether taking into account the pleadings and the facts, the 1st defendant’s defence as against the plaintiffs claim raises a triable issue to warrant the matter to proceed to trial for the determination of such issue or the defence is a mere sham deserving to be struck out and summary judgment entered in favour of the plaintiffs.

8. The plaintiffs by their plaint dated 17th October 2016 filed in Court on the same date and subsequently amended on 12th February 2020 with leave, have pleaded the agreement of sale dated 19th October 2011 entered between themselves and the 1st defendant for the purchase of a portion of 5 acres which was to be excised from LR No.10013/4 for the consideration of Kshs4,000,000/=. The consideration was paid and the plaintiffs were granted vacant possession by the 1st defendant in terms of the sale agreement. It is not disputed that the 1st defendant did not have title to the land that he offered for sale to the plaintiffs. The land formed part of the estate of the late Kibowen Komen and the portion of 5 acres the 1st defendant purported to sell to the plaintiffs was part of 7 acres that the 2nd and 3rd defendants sold to the 1st defendant from their entitlement as beneficiaries of the estate of the late Kibowen Komen in L.R No.10013/4.

9. By the amended plaint the plaintiffs pleaded breach of the sale agreement dated 19th October 2011 on the part of the defendants. The plaintiffs prayed for a refund of Kshs4,000,000/= paid as purchase price; general damages for breach of contract; Kshs.400,000/= being the agreed 10 % liquidated damages and the costs of the suit. In the plaint the plaintiffs have particularized breach of contract under paragraph 14A of the amended plaint. Interalia the plaintiffs aver the 1st defendant misrepresented himself as the legitimate and/or beneficial owner of 7 acres out of which he was selling 5 acres to the plaintiffs; that he 1st defendant acted fraudulently in cahoots with the 2nd to 4th defendants to defraud the plaintiffs; fraudulently received Kshs4,000,000/= for the purchase of 5 acres from the plaintiffs; and purportedly acting on behalf of the 2nd and 3rd defendants in selling the land when he had no authority to do so. The plaintiffs further averred that the defendants had intentionally frustrated the completion of the sale transaction and as a consequence the 1st defendant was liable to pay to the plaintiffs the agreed liquidated damages for breach as well as to make a refund of the purchase price paid to him by the plaintiffs.

10. The 1st defendant filed a statement of defence dated 29th March 2017 on 31st March 2017. The 1st defendant subsequently amended the statement of defence and filed a counterclaim on 8th July 2020. The 1st defendant admitted entering into the sale agreement dated 19th October 2011 with the plaintiffs and asserted that the portion of 5 acres the plaintiffs were buying was to be hived from the portion of 7 acres that he had purchased from the 2nd and 3rd defendants (1st and 2nd defendants in the counter claim) and that the plaintiffs were aware of that and entered into the agreement with that understanding. The 1st defendant denied the allegations of fraud particularized under paragraph 14A of the amended plaint and denied he was in breach of the Agreement of sale dated 19th October 2011. The 1st defendant maintained that the plaintiffs were aware at the time of entering into the Agreement that the 2nd and 3rd defendants were to be involved in the process of obtaining the completion documents and that the failure on the part of the 2nd and 3rd defendants to avail the completion documents cannot be attributed to the 1st defendant.

11. The 1st defendant pleaded by way of counterclaim that the 2nd and 3rd defendants (1st & 2nd defendants in the counterclaim) were beneficiaries of the estate of the late Kibowen Komen and entitled as such beneficiaries to ownership of a portion of L.R No.10013/4. That the 1st and 2nd defendants (counterclaim) sold to the 1st defendant 7 acres that was to be excised from LR No.10013/4 and that out of the portion of 7 acres the 1st defendant sold to the plaintiffs (3rd and 4th defendants in the counterclaim) a portion of 5 acres. The 1st defendant stated that both the plaintiffs and the 2nd & 3rd defendants appended their signatures to the sale Agreement dated 19th October 2011 signifying their knowledge of the contents of the same.

12. The 1st defendant further stated that the 1st and 2nd defendants (counterclaim) invaded the suit property and forcefully took over the portion of 7 acres they had sold to him and drove the plaintiffs (3rd & 4th defendants in the counterclaim ) out of the 5 acres portion they had occupied for 5 years in August 2016. The 1st defendant claimed that the 1st and 2nd defendants ( counterclaim) action of re-entering the land Constituted trespass as they had no proprietary rights over the portion of 7 acres that they had sold and parted with possession.

13. The 1st defendant/plaintiff in the counter claim prays for judgment for a declaration that the 3rd and 4th defendants ( counterclaim) are the lawful owners of 5 acres out of LR No. 10013/4; an order of eviction of the 1st and 2nd defendants from the portions of 5 acres occupied by the plaintiffs pursuant to the sale agreement of 19th October 2011. In the alternative the 1st defendant prays that the 1st and 2nd defendants (counterclaim) do refund to the plaintiffs the sum of Kshs4,000,000/= they paid towards the purchase price.

14. The 2nd and 3rd Defendants filed an amended defence on 18th May 2020. The 2nd and 3rd defendants averred that they signed the sale agreement dated 19th October 2011 as witnesses. They admitted they were the legal beneficiaries of the estate of the late Kibowen Komen although they denied they were the registered lessees of the suit property. The 2nd and 3rd defendants denied they were privy to the agreement between the plaintiffs and the 1st defendant; and that they never made any representations and/or was any money paid to them by the plaintiffs. The 2nd and 3rd defendants denied the allegations of fraud and averred that they had all the time been in occupation of their ancestral land which the plaintiffs were laying claim to. They averred it was the plaintiffs who had interfered with their occupation which necessitated the 2nd defendant to make a report at the Njoro police station.

15. The plaintiffs on 13th July 2020 filed a reply to defence and defence to the counterclaim filed by the 1st defendant. The plaintiffs reiterated the contents of their amended plaint and asserted that the 1st defendant held himself as the owner of the portion of 5 acres that he sold to them but failed to complete the transaction in breach of the contract of sale. The plaintiffs averred that the failure by the 1st defendant to avail the completion documents for the transaction exposed the plaintiffs to adverse claims by third parties over the same portion of land.

16. I have set out hereinabove the pleadings by the parties in some considerable detail to contextualize the basis for consideration of the plaintiffs present application, the plaintiffs on one hand seek the entry of summary judgment on the basis that the 1st defendant has admitted receipt of Kshs4,000,000/= that they paid as consideration for the purchase of land which transaction failed to be completed. On the other hand the plaintiffs pray in the alternative for the striking out of the 1st defendant’s defence and counterclaim on the basis that the defence is a sham and raises no triable issue while the counterclaim is misconceived and raises no reasonable cause of action as against the plaintiffs.

17. The court in an appropriate case has power to grant summary judgment where a party has through its pleadings and/or any correspondences that are exhibited admitted the claim either wholly or partially. The admission that would invoke entry of summary judgment has to be plain, clear and obvious and ought not to be such admission as would require explanation and/or amplication by way of evidence so as to be taken as an admission. In other words the admission must be such as not to leave any doubt as to the admission of the fact alleged. The court’s power to grant summary judgment is discretionally and as is the norm such discretion has to be exercised judiciously after a careful analysis and evaluation of the facts and circumstances pursuant to which the court is being invited to exercise the discretion.

18. The plaintiffs in their submissions argue that the 1st defendant’s defence lacks substance and it would be a waste of the Court’s time to permit the matter to go to trial as the defence was not capable of sustaining a reasoned argument. They contend there is admission that the full purchase price was paid yet the sale transaction was not completed and no refund of the purchase price had been made by the 1st defendant. They thus contend the 1st defendant’s amended defence is frivolous, vexatious and without substance and hence the same ought to be struck out. The plaintiff’s have placed reliance on the cases of Equatorial Commercial Bank Ltd -vs- Jodam Engineering Works Ltd & 2 others 92014) eKLR; Nairobi Flour Mills Ltd -vs- Johnson Kithete T/a Farmers General Stores (2005) eKLR; Margaret Njeru Mbugua -vs- Kirk Mweya Nyaga (2016) eKLRandCounty Government of Kilifi -vs- Mombasa Cement Limited (2017) eKLR.

19. The 1st defendant in his submissions has maintained that there was no admission on his part as would justify the entry of summary judgment against him. He submitted the defence and counterclaim raises triable issues that necessitate the matter to proceed to trial for adjudication of the said issues. The 1st defendant has placed reliance on the cases of Erick Barasa Makokha & 2 others -vs- Neema ya Mungu Investment Ltd (2020) eKLRand Endebess Development Co Ltd -vs- Coast Development Authority (2018) eKLR in which the courts considered the principles applicable in application for judgment on admission and striking out of pleadings.

20. Order 13 Rule (2) on which the principal prayer for judgment on admission is premised provides as follows:-

“ Any party may at any stage of a suit, where admission of facts has been made, either on the pleadings or otherwise, apply to the court for such judgment or order as upon such admissions be may entitled to, without waiting for determination of any other question between the parties; and the court may upon such application make such order, or give such judgment, as the court may think just”.

21. Musyoka, J in the case of Erick Barasa Makokha & 2 others -vs- Neema ya Mungu Investment Co. Ltd case ( supra) cited with approval the case ofIdeal Ceramics Ltd –vs- Suraya Property Group Ltd HCC No. 408 of 2016, where the court while considering an application for summary judgment on admissions stated:-

“(16) The Law on summary procedure vide a judgment on admission is now relatively clear. The purpose of the Law laid out under Order 13 of the Civil Procedure Rules is to ensure that a party whose entitlement is evidently due and admitted does not wait for determination by the Court of a non-existent question. It is undesirable to litigate when there is no question or issue of fact or law. The summary process in this regard assists in ensuring that unnecessary costs and delays are not invited.

17. The Court’s power to enter summary judgment is discretionary; see Cassman -vs- Sachania (supra): The discretion is to be exercised only in cases where the admission, whether express or implied, is plain, clear, unconditional, obvious and unambiguous: See Choitram -vs- Nazari(supra) andMomanyi -vs- Hatimy & another (2003) EA 600. The admission ought to be obvious on the face thereof and leave no room for doubts”.

22. In the case of Choitram -vs- Nazari (1984) KLR 327 the Court of Appeal while considering the application of Order XII Rule 6 which was similar to the present Order 13 Rule 2 stated as follows:-

“For the purpose of order XII rule 6, admissions can be express or implied either on the pleadings or otherwise, e.g in correspondence. Admissions have to be plain and obvious, as plain as a pikestaff and clearly readable because they may result in judgment being entered. They must be obvious on the face of them without requiring a magnifying glass to ascertain their meaning. Much depends upon the language used”

23. The court further stated thus:-

“In considering the matter, the judge must neither become disinclined nor lose himself in the jungle of words even when faced with a plaint such as the one in this case. To analysis pleadings, to read correspondence and to apply the relevant law is a normal function performed by judges which has become established routine in the courts. We must say firmly that if a judge does not do so or refuses to do so, he fails to give effect to the provisions of the established law by which a legal right is enforced. If he allows or refuses an application after having done so that is another matter. In a case under order XII, Rule 6 he has then exercised his discretion for the order he makes falls within the courts discretion. The only question would be whether the judge exercised his discretion properly either way. If upon a purposive interpretation of either clearly written or clearly implied, or both, admissions of fact the case is plain and obvious there is no room for discretion to let the matter go to trial for then nothing will be gained by having a trial. The court, may not exercise its discretion in a manner which renders nugatory an express provision of the law”.

24. It does appear the applicants application in the present matter is premised on the fact of the agreement for sale dated 19th October 2011 pursuant to which they paid a sum of Kshs4,000,000/= to the 1st defendant for the purchase of a portion of 5 acres. To the applicants knowledge the portion of 5 acres was to be excised from the portion of 7 acres that the 1st defendant had purchased from the 2nd and 3rd defendants and in regard to which the 1st defendant had not obtained title as the 2nd and 3rd defendants were yet to have their entitlement as beneficiaries of their late father’s estate distributed to them to enable the subdivision of the 7 acres in favour of the 1st defendant to be effected from LR No.10013/4. The applicants have alleged breach of contract on the part of the 1st defendant under paragraph 14A of the amended plaint. The 1st defendant while he admits the sale agreement denies the allegations of breach of contract and/or that he was acting fraudulently in entering the agreement and/or he intended to defraud the applicants. Under paragraph 10 of the 1st defendant/respondent’s defence, the 1st defendant averred that the applicants entered into the agreement knowing that the 2nd and 3rd defendants were to cause the portion of 7 acres to be surveyed and hived off from LR No.10013/4 which was to facilitate the subdivision and transfer of 5 acres to the applicants out of the 7 acres. That did not happen owing to frustration by the 2nd and 3rd defendants who forcefully entered into the suit land and have prevented the applicants from remaining in possession of the portion of 5 acres. The 1st defendant’s counterclaim seeks a declaration that the applicants are the lawful owners of the portion of 5 acres and for the 2nd and 3rd defendants to yield vacant possession to the plaintiff’s and/or alternatively to refund to the plaintiffs the sum of Kshs4,000,000/= they paid as purchase price.

25. In my view having regard to the pleading I am not able to hold that the admission by the applicants is clear, plain and obvious so as to invite the entry of summary judgment against the 1st defendant. It was clear to the applicants at the time of entering the agreement that the 1st defendant did not possess title to the land he was selling to them and that there was to be a process of survey and subdivision. The 1st defendant, though not expressly, has pleaded frustration of the agreement by the 2nd and 3rd defendants against whom he has pleaded a counterclaim. There are allegations of breach of contract against the 1st defendant by the plaintiffs which he denies. In my mind that would constitute a triable issue inviting evidence at the trial.

26. In the case of Cassman -vs- Sachania (1982) KLR 191 the court stated thus:-

“Granting judgment on admissions of facts is a discretionary power which must be exercised sparingly in only plain cases where the admissions is clear and unequivocal—Judgment on admission cannot be granted where points of law have been raised and where one has to resort to interpretation of documents to reach a decision.

27. In the case of Cannon Assurance (k) Ltd -vs- Maina Mukoma (2018) eKLR the Court was categorical that the admission to invite the entry of summary judgment had to be clear, plain and unambiguous and there should be no contested facts. The court stated thus:-

“In finding that the admission is plainly clear and obvious the court has to be satisfied that the admission is not ambiguous and all material facts regarding the claim are not contested in any way at all. It must be an admission that has no doubt to the intention of the party making the admission. The admission in other words must be unequivocal in the material facts capable of being established by the law argued without the benefit of trial”.

28. In the present application other than there being no dispute the applicants paid a sum of Kshs4,000,000/= to the 1st defendant pursuant to an agreement of sale, there is no time the 1st defendant agreed to make a refund of the amount. If anything the 1st defendant does not admit he breached the agreement of sale. He avers he granted the applicants possession of the portion of 5 acres that he sold to them and denies he is culpable for their ejection from the land by the 2nd and 3rd defendants. In those circumstances, I cannot find there is what would constitute a clear, plain, obvions and an unambiguous admission to justify the entry of summary judgment in favour of the applicant. There is no clear and unequivocal admission by the 1st defendant and an unambiguous admission to justify the entry of summary judgment in favor of the applicants. There is no clear and unequivocal admission by the 1st defendant. There are clearly triable issues raised in the defence and the counterclaim and the matter should go to trial.

29. The upshot is that I find no merit in the plaintiffs application dated 19th August 2020. The same is dismissed with costs to the 1st defendant.

Ruling dated, signed and delivered virtually at Nakuru this 28th day of January 2021.

J M MUTUNGI

JUDGE