[2015] KEHC 3172 (KLR)
The court found that the plaintiff entered into a sale agreement for land with the defendants but failed to obtain the necessary land control board consent, rendering the agreement void after six months. The plaintiff used the purchase money for personal benefit, including succession proceedings, without involving...
Source-derived case information.
- Citation
- [2015] KEHC 3172 (KLR)
- Parties
- Plaintiff: Thomas Bukhebi Wanjala; Defendant: Simon Peter Munayi; Defendant: Salome Filista Makokha Wakala
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 24 of 2013
- Procedural Posture
- Ruling / Interlocutory Application
- Outcome
- application dismissed with costs to the defendants; suit to proceed to hearing on merits
- Judges
- SN Mukunya
- Legal Topics
- Land Sale Agreements, Land Control Consent, Breach of Contract, Counterclaim Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Thomas Bukhebi Wanjala
Plaintiff
Simon Peter Munayi
Defendant
Salome Filista Makokha Wakala
Defendant
Procedural Posture
Ruling / Interlocutory Application
Legal Issues
- 1 Whether the sale agreement dated 15/8/2009 is null and void for lack of land control consent.
- 2 Whether the plaintiff is entitled to damages for breach of contract.
- 3 Whether the defendants are entitled to a refund of the purchase price paid under the agreement.
Ratio Decidendi
The court found that the plaintiff entered into a sale agreement for land with the defendants but failed to obtain the necessary land control board consent, rendering the agreement void after six months. The plaintiff used the purchase money for personal benefit, including succession proceedings, without involving the defendants. The court held that the plaintiff's application to amend the plaint and strike out the counterclaim was an abuse of court process, as he sought to retain the purchase price while denying the defendants the benefit of the agreement. The court dismissed the application with costs to the defendants and directed that the suit proceed to hearing on its merits.
Court Disposition
application dismissed with costs to the defendants; suit to proceed to hearing on merits
Orders
- The plaintiff's application dated 8th May 2014 is dismissed with costs to the defendants.
- The suit shall be fixed for hearing on merit forthwith and at the earliest opportunity.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
ENVIRONMENT AND LAND CASE NO. 24 OF 2013
THOMAS BUKHEBI WANJALA…….…………………………………….PLAINTIFF
VERSUS
SIMON PETER MUNAYI……………………..……………...…..1ST DEFENDANT
SALOME FILISTA MAKOKHA WAKALA………..………….….2ND DEFENDANT
RULING
The plaintiff herein Thomas Bukhebi Wanjala had problems with his children school fees in August 2009. He had no reliable income. He resolved to sell a portion of 1. 5 acres of his land North Wanga/Kholera/599. The land was still in his father’s home the late Wanjala Mangoli.
He met the defendants who were husband and a wife. An agreement was reached in writing on 15/8/2009 to sell the 1 ½ acres for Kshs.270,000.
A down payment was made of Ksh.190,000/- leaving a balance of Kshs.80,000/-.
[1]. The plaintiff used part of the money to file Kakamega High Court Succession case No.707 A 2009. He obtained the grant on 14th April 2011. He never mentioned during the confirmation of the grant that the beneficiaries of LR No. N.Wanga/Kholera/599 included the defendants herein as purchasers.
He has filed this suit for orders that the agreement between the parties dated 15/8/2009 be declared null and void and that the defendants be compelled to pay the damages for breach of contract and costs of the suit.
[2]. The defendants filed a defence and counterclaim. They stated that the plaintiff filed Succession cause in Kakamega High Court without involving the defendants. They set out the particulars of Breach of contract on the part of the plaintiff. They deny that there is no remedy known in law as general damages for breach of contract and that the plaint does not raise any reasonable cause of action.
The defendants argue that the sale agreement became void after the expiry of 6 months for lack of the necessary land control consent and the purchase price is payable as a Civil debt. They counterclaimed for Ksh.190,000/- as refund of purchase price plus interest and costs.
[3]. The plaintiff filed a notice of motion dated 8th May 2014 praying for orders that the plaint be amended to remove the claim for general damages for breach of contract. Further that the counterclaim be struck out with costs and judgement be entered against the defendant for Ksh.190,000/-.
[4]. There is no doubt that the plaintiff entered into an agreement for sale of his land, when he was in trouble with school fees of his children. He infact used part of the purchase price to file Kakamega High Court Succession Case No.707 of 2009. He did not involve the defendants in that case. This transaction was subject to land control consent. He did not apply for the same to enable the defendants to obtain consent to transfer the 1 ½ acres to the defendants. He now wants to have the defendants Counterclaim to be dismissed and he be awarded Ksh.190,000/- that the plaintiffs paid to him.
In other words, he wants to ride on the defendants back all through. Indeed, it was his idea to sell the land to raise the school fees of his children. He also used the money to file Succession Cause to succeed his father’s property. All at the defendants expense! This is abuse of the process of the Court process of the highest order. This Court cannot condone or countenance such behavior.
This application is without merit and shall be dismissed with costs to the defendants.
This suit shall be fixed for hearing on merit forthwith, and at the earliest opportunity.
DATED at BUNGOMA this9thday ofJuly,2015
S. MUKUNYA
JUDGE