[2012] KEHC 4030 (KLR)
The court found that the defendant failed to adhere to the payment schedule stipulated in the sale agreement, even after being granted an extension. The plaintiffs were entitled to seek rescission and protective orders due to the defendant's breach and unauthorized actions on the property. The procedural history...
Source-derived case information.
- Citation
- [2012] KEHC 4030 (KLR)
- Parties
- Plaintiff: Stephen Ndeleva Muasya & Others; Defendant: Peter Mwangi Waititu
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Case 122 of 2008
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Applications and Procedural History
- Outcome
- Interlocutory judgment entered against the defendant; matter set for formal proof; interim injunctive relief considered.
- Judges
- EM Ngugi
- Legal Topics
- Sale of Land, Rescission of Contract, Interlocutory Judgment, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Ndeleva Muasya & Others
Plaintiff
Peter Mwangi Waititu
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Applications and Procedural History
Legal Issues
- 1 Whether the defendant breached the sale agreement by failing to pay the required deposit within the stipulated timelines.
- 2 Whether the plaintiffs are entitled to rescission of the sale agreement and vacant possession of the suit property.
- 3 Whether the plaintiffs are entitled to interim injunctive relief and demolition orders against the defendant.
Ratio Decidendi
The court found that the defendant failed to adhere to the payment schedule stipulated in the sale agreement, even after being granted an extension. The plaintiffs were entitled to seek rescission and protective orders due to the defendant's breach and unauthorized actions on the property. The procedural history showed that the defendant's counsel was not consistently on record and that the defendant failed to file a defence in time, justifying the entry of interlocutory judgment. The court recognized the plaintiffs' right to interim relief to safeguard their interests pending the final determination of the suit.
Court Disposition
Interlocutory judgment entered against the defendant; matter set for formal proof; interim injunctive relief considered.
Orders
- Interlocutory judgment entered for the plaintiffs due to defendant's failure to file a defence.
- Matter to proceed to formal proof for assessment of final reliefs.
Full Case Text
Judgment text and source record
20 paragraphs
STEPHEN NDELEVA MUASYA & OTHERS….PLAINTIFFS/RESPONDENTS
VERSUS
PETER MWANGI WAITITU…………………....DEFENDANT/APPLICANT
RULING
1. The Plaintiffs in this case filed their plaint on 25/10/2007. In it, they ask for a rescission of an agreement dated 01/02/2005 (“Sale Agreement”) between themselves and Peter Mwangi Waititu, the defendant (“Defendant”).That agreement was for the sale of Land Parcel No. LR No. 12715/658(“Suit Property”).The Plaintiffs, therefore, also seek for vacant possession: a permanent injunction against the Defendant or his agents or anyone claiming or acting under him from in any way interfering with all the incidents of Plaintiffs’ ownership of the Suit Property as well as an order of eviction and demolition of any structures placed there by or under the direction of the Defendant.
2. The Plaintiffs’ claim is a straightforward one.The purchase price was Kshs. 5,250,000/=.Kshs. 648,000/= was acknowledged to have already been received.The terms of the Sale Agreement obligated the Defendant to pay a “deposit” of Kshs. 4 Million on 15/02/2005. In the event that the Defendant defaulted to pay this “deposit”, the Plaintiffs prospectively granted him 15 extra days to make good.At the conclusion of those 15 days, the Plaintiffs permitted themselves the right to sale the land to any other willing buyer.The remaining sale amount of Kshs. 602,000/= were to be paid upon the Plaintiffs supplying the Defendant with all the necessary documents to transfer the Suit Property to the name of the Defendant.All these can be gleaned from the Sale Agreement.
3. However, along the way, the Defendant was unable to keep up with the timeline demanded by the Sale Agreement.The Plaintiff indulged him.On 15/02/2005 – that is the day he was supposed to make his payment of Kshs. 4 million – the parties met and agreed in writing that the Defendant would now pay the Kshs. 4 Million on 23/03/2005. It is the Plaintiffs’ claim that the Defendant failed to adhere to this new schedule of payment.Instead, he has only paid a grand total of Kshs. 500,000/= (in addition to the acknowledged sum of Kshs. 648,000/= as per the Sale Agreement).
4. The Plaintiffs further say that although the Sale Agreement is quite explicit in its terms that the Defendant shall not commence any construction on the property until he has been given a go-ahead by the Plaintiffs upon payment of the “deposit” of Kshs. 4 Million, he has, apparently, authorized third parties to commence constructions – hence the prayer for demolition in the Plaint.
5. To safeguard their interests during the pendency of the suit, the Plaintiffs filed a Chamber Summons seeking interim injunctive relief simultaneously with the Plaint.Since this application (“Injunction Application”) was filed under certificate of urgency, it was given a date soon thereafter.The Plaintiffs’ counsel served the Injunction Application on 25/10/2007. That much is not denied by the Defendant.Indeed, on 01/11/2005, Ogessa & Co. Advocates came on record for the Defendant.On the same day, the Defendant’s Advocates also filed a Notice of Preliminary Objection.
6. The parties appeared before the Court on 01/11/2007 and again on 09/11/2007 where they indicated that out of court negotiations were under way.Any ray of hope of resolution presented by these negotiations was effectively flicked out on 23/11/2007 when the Plaintiffs’ Advocate reported to the Court that no settlement had been forthcoming from the Defendant.He proposed to proceed with the Injunction Application.A date of 20/03/2008 was set in Court.However, it turned out that was during vacation.In the meanwhile, on 28/03/2008, the Plaintiffs’ Advocates filed a formal request for judgment on the grounds that the Defendant had failed to file a defence, interlocutory judgment was entered
g.On 09/07/08, the parties appeared before Justice Osiemo who entertained arguments on proper registry of filing.He gave a ruling date of 22/07/2008. He also noted that the defendant’s counsel was not properly on record.It is not clear why.The Defendant’s counsel learnt on that day about the interlocutory judgment.
h.On 24/07/2008, the Defendant entered appearance through their present advocates.
i.On 22/07/2008, Justice Osiemo directed that the case be transferred to the Machakos registry and that it be set for mention for 01/08/2008.
j.On 01/08/2008, the Plaintiffs’ lawyer was present but neither the Defendant nor his advocates were present.The Court set the matter for formal proof on 18/11/2008.
k.On 18/11/2008, with only the Plaintiffs’ advocate present, the case was stood over to 11/03/2009. It is not clear what happened on that latter date.
l.On 30/06/2009, the case was back in Court before Justice Lenaola who stood it over for formal proof on 17/09/2009. In the meanwhile, the Defendant’s Advocate, who was not in Court again on 30/06/2009, had filed the present Application on 25/02/2009. Still, there was no appearance from the Defendant’s side on 30/06/2009. The Defendant’s Advocate had not yet served the Plaintiffs’ lawyers with the Application.
m.and DELIVERED at MACHAKOS this day 27THday ofFEBRUARY 2012.
___________________
J.M. NGUGI
JUDGE