[2024] KEELC 4696 (KLR)

Waichari (Suing as an administrator of the Estate of Francis Albert Waichari) v Kairu practicing as Kimani Kairu & Co Advocates (Land Case E007 of 2024) [2024] KEELC 4696 (KLR) (6 June 2024) (Judgment)

Neutral citation: [2024] KEELC 4696 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Land Case E007 of 2024

JA Mogeni, J

June 6, 2024

Between

Alex Ndungu Karanja Waichari (Suing as an administrator of the Estate of Francis Albert Waichari)

Plaintiff

and

Peter Kimani Kairu practicing as Kimani Kairu & Co Advocates

Defendant

Judgment

1. The Applicant commenced this suit through Originating Summons dated 7/02/2024 against the Defendant, claiming to be the vendor of property known as Title No. 2259/316 Karen, Nairobi County. The Plaintiff seeks for the following orders:1. Spent.

2. Spent.

3. That this Honourable Court be pleased to issue an order that the Defendant do pay the Applicant Kenya Shillings Fifty-Two Million, Six Hundred and Sixty-Three Thousand, Eight Hundred and Eighty (Kshs. 52,663,880/=) being the balance of the purchase price of Kenya Shillings Ninety Million (Kshs. 90,000,000/=) paid in trust to its account as the Vendor's/Applicant’s Advocate for the sale of Property LR. No. 2259/316 upon hearing and determination of this application.

4. That the costs of this application be provided for.

2. The Originating Summons is brought under Order 37 Rules 3 and Order 52 Rule 4 of the Civil Procedure Rules 2010 and all the other enabling powers and provisions of the law.

3. The Application is premised on the grounds cited in paragraphs (a) – (q) on the face of the application and particularly the annexed Supporting Affidavit sworn by Alex Ndungu Karanja Waichari, the Plaintiff herein. I do not need to reproduce them here.

4. In response to the Originating Summons, the Defendant filed a Replying Affidavit sworn by Peter Kimani Kairu on 11/03/2024 opposing the same.

5. Upon pleadings thereby being closed, the Court gave directions on filing of written submissions on 22/04/2024. By the time of writing this ruling, it was only the Plaintiff who had duly submitted and I have considered them. The Plaintiff filed his submissions dated 29/04/2024 on the even date.

Plaintiff’s case 6. The Plaintiff engaged the Defendant as their Advocate in a conveyancing transaction to sell Land Reference No. 2259/316 to Orange Valley Limited for Kshs. 90,000,000. Despite the successful transfer of the property and completion of the transaction, the Defendant failed to remit the full amount to the Plaintiff. They only transferred Kshs. 35,000,000 plus transaction costs, leaving a balance of Kshs. 54,749,880. Upon pressure, the Defendant ceased acting for the Plaintiff. The Plaintiff’s new Advocate demanded the complete conveyancing file and a comprehensive statement of account from the Defendant. The Defendant forwarded a photocopied file but withheld the outstanding balance of Kshs. 52,663,880 without justification. Despite multiple requests, the Defendant has refused to pay the balance, causing prejudice to the Plaintiff and hindering the transfer of vacant possession to the detriment of the purchasers. The Plaintiff alleges bad faith and intent to defraud, as they had already paid the Defendant’s legal fees. The Application is brought in good faith to seek redress.

Defendant’s case 7. The Defendant asserted that following the mention of this matter before the Court on 28/02/2024, his counsel received a letter from the Plaintiff’s advocates requesting a meeting to discuss the issues raised in the application with a view to amicably settling the matter out of court. In the spirit of the aforesaid letter, the Defendant met the plaintiff’s counsel together with his counsel on 5/03/2024 at his Advocate’s chambers and after the discussions, the charted way forward was that: the matter be amicably resolved out of court, the Defendant be allowed not to file any pleadings in the matter and that the matter be mentioned in Court to update the Court how the matter shall have been settled.

Issues for determination. 8. I have considered the pleadings and the evidence on record. I have considered the written submissions filed on behalf of the plaintiff and the authorities cited. The issue for determination is whether the Court should grant the orders sought.

Analysis Whether the Court should grant the orders sought. 9. This is a straightforward matter. The Defendant has not disputed the allegations made in the Plaintiff’s Application. Instead, he filed a Replying Affidavit deponing that the parties met on 5/03/2024 and agreed that the matter be amicably resolved out of court. They apparently also agreed that the matter be mentioned in Court to update the Court how the matter shall have been settled.

10. The parties appeared before me on 22/04/2024 wherein the Court was informed that there was no progress and no proposed settlement. None of the parties have approached the Court with regard to filing a consent either. To this end, it is clear that the prayers sought in the originating summons are therefore not opposed.

11. Order 37 rule 3 of the Civil Procedure Rules provides:“A vendor or purchaser of immovable property or their representatives respectively may, at any time or times, take out an originating summons returnable before the judge sitting in chambers, for the determination of any question which may arise in respect of any requisitions or objections, or any claim for compensation; or any other question arising out of or connected with the contract of sale (not being a question affecting the existence or validity of the contract).”

12. A look at the summons indicate that the Plaintiff alleges to have sold the suit property to Orange Valley for an agreed purchase price of Kshs. 90 million. The Plaintiff averred that the all the money was deposited to the Defendant’s Advocates bank account on stakeholder basis for onward transmission to the Plaintiff. It has been contended that despite the successful transfer of the property to the purchaser and completion of the transaction, the Defendant has failed to remit and/or transmit the whole sum of Kshs. 90 million to the Plaintiff. This is a claim for compensation from the Defendant who acted for the Plaintiff in the conveyancing transaction and I therefore find that find that this originating summons is proper before the Court.

13. I have perused the file and I have noted that the Defendant has not denied acting for the Plaintiff in a conveyancing transaction to sell Land Reference No. 2259/316 to Orange Valley Limited for Kshs. 90,000,000. The Defendant has not denied not depositing the sums owed to the Plaintiff in the amount Kshs. 52,663,880. 00 or such other sums owed into the Plaintiff’s advocates’ accounts as he had been requested to do in the letters dated 20/11/2023, 5/12/2023, 8/12/2023 and 16/01/2024. It has also been demonstrated that the Plaintiff allowed the Defendant to deduct his legal fees from the monies paid into his account from the transaction.

14. I see no reason why the Defendant has refused and neglected to release the sums owed to his former client despite a successful transfer of property to the purchaser and completion of the transaction. Further the Defendant stated that they wanted to resolve the matter out of court but has not approached the court with any settlement made nor sought the court’s support to refer the parties to a court annexed mediation. It is my considered view that the Plaintiff has proved his case against the Defendant on a balance of probabilities. I find merit in the originating summons dated 7/02/2024.

15. In conclusion, I find that the Plaintiff has made out a good case as against the Defendant and grant the orders sought namely: -a.The Defendant is hereby ordered to pay the Plaintiff, Kenya Shillings Fifty-Two Million, Six Hundred and Sixty-Three Thousand, Eight Hundred and Eighty (Kshs. 52,663,880/=) only being the balance of the purchase price of Kenya Shillings Ninety Million (Kshs. 90,000,000/=) paid in trust to its account as the Vendor’s/Plaintiff’s Advocate for the sale of Property LR. No. 2259/316. b.I award costs to the Plaintiff.

16. It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 6TH DAY JUNE 2024. …………………………..MOGENI JJUDGEIn the Virtual presence of: -Mr. Marete for Respondent/ApplicantMs. Amunde for Plaintiff/RespondentMs. Caroline Sagina - Court Assistant…………………………..MOGENI JJUDGE