Abraham Gina Adams (Suing as the Administrator of the Estate of the late Geofrey Adams Ogwa v James Ouma Natolio [2015] eKLR [2015] KEHC 6575 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

ELC. NO. 70 OF 2013.

ABRAHAM GINA ADAMS (Suing  as the Administrator  of the estate of the late

GEOFREY ADAMS OGWA……………...............................PLAINTIFF/APPLICANT

VERSUS

JAMES OUMA NATOLIO …………......….....................……DEFENDANT/RESPONDENT

J U D G M E N T

ABRAHAM GINA ADAMS (Suing  as the administrator  of the estate of the late GEOFFREY ADAMS OGWA) hereinafter referred to as the Plaintiff, through  the plaint dated 27th August, 2013 sued JAMES OUMA  NATOLIO, hereinafter  referred to as the Defendant, for the  transfer of land parcel Bunyala/Bulemia/2678, costs and interests.

The Plaintiff avers that he obtained grant of letter of administration of his late father’s estate on 3rd June, 2013. That his late father, had through an agreement  of 10th March, 1991  bought a portion of land measuring 2. 4  hectares out of land parcel 2242/LCR 218/Bulemia  from the Defendant. That the portion was later registered  as Bunyala/Bulemia/2678 which  his late father took possession of,  settled on and buried relatives there. That the Defendant has refused to transfer the said land to the Plaintiff and hence this suit.

The Defendant filed a statement of defence dated 24th September, 2013 denying the Plaintiff’s claim. The Defendant averred that the plaint does not disclose a reasonable cause of action and further that the suit  is scandalous , frivolous and an abuse of the process of the court.  The Defendant indicated at paragraph 7 of the defence that he would raise a preliminary objection on a point of law to have the suit struck out and or dismissed.

Mr. Makokha and M/S. Ashioya advocates appeared for the Plaintiff and Defendant respectively, during the hearing.  The Plaintiff testified as PW 3 and called three witnesses, namely James Omondi, John Ouma and Alex  Olaba Wanzala who testified  as PW 1, PW 2 and PW 4 respectively.  The Defendant testified as DW 1 and called Michael Ogada, Patrick  Lumumba and Geoffrey Ogaba, who testified as DW 2, DW 3 and DW 4 respectively.

SUMMARY  OF PLAINTIFF’S EVIDENCE.

1. That the Plaintiff is a son of the late Geofrey Adams Ogwa who died on 17th May, 2006 and for whose estate he is the administrator.

2. That the Plaintiff was 18 years old when his father died. That  when preparing  to file a succession Cause, his  brother in law (PW 1)  handed to him land sale agreement dated 10th March, 1991 for  parcel 2242/LCR 218/Bulemia, mutation forms dated 13th November, 1991 and several other documents that forms part of list  of documents dated 27th August, 2013.  That from the said documents, the Plaintiff  discovered that the late Geoffrey had bought  the suit land from the Defendant.

3. That the late Geoffrey Adams Ogwa had taken possession of the portion he acquired from the Defendant under the agreement dated 10th March, 1991. That the late Geofrey had built a home on the suit  land that neighboured  that of the Defendant  and buried  his relatives there, including his late wife, Regina Anyango in 1994, and late daughter  Veronicah  Akumu in 1995.

4. That in 2004, the late Geofrey  started ailing and left the suit land to stay at his mother’s home which is about 5 km away, where he later died in 2006 and was buried in accordance  with the Muslim faith.

5. That  after the death of the late Geofrey, the houses  he had constructed on the suit land collapsed with time.  The  Defendant then started claiming the suit land  making the  family of PW 1, who had been using, it to stop working on it in 2009.

6. That  in 2013, the  plaintiff received a notice from the Land Registrar, addressed to the late Geofrey  on the Registrar’s  intention to remove the caution  to pave way for a transfer. The  Plaintiff filed an objection to the removal of the caution.  The Plaintiff then filed Busia H.C. Succession Cause No. 24 of 2013 and  was appointed administrator of the late Geofrey’s estate.  He then filed the current suit as he has a duty as an administrator under the Law of Succession Act to collect the assets of the estate and account to the court.

SUMMARY  OF DEFENDANTS EVIDENCE.

1. That  Defendant did not enter into a written agreement with the late  Geofrey Adams Ogwa over sale of land.  He however  said that he  had a gentlemen’s  agreement that he would sell him one acre for Kshs.30,000/= out of the portion he would  inherit from his father’s estate .

2. That the late Geofrey paid him a deposit of Kshs.5,000/=.  The Defendant  allowed the late Geofrey  to take possession of the one acre.  The late Godfrey was to pay the balance during the distribution of the estate so that an acre of the  land could be subdivided and transferred to him directly, but he failed to pay.  The Defendant therefore got registered with the whole of his portion being Bunyala/Bulemia/2678.

3. That after  the late Geofrey  used the land for two years without paying the balance, the Defendant asked  him to vacate from the land but he declined demanding refund of Kshs.5,000/= he had paid.  The Defendant  declined to refund the Kshs.5,000/= and the late Geofrey  took the matter to the Provincial  Administration using forged documents to compel the Defendant  to transfer  the land to him.  The  Defendant  stated  that he resisted the pressure.

4. That in May, 2004, the late Geofrey  approached DW 3  to talk  with DW 4  to purchase  the portion of land  he (the late  Geofrey) had  purchased  from Defendant claiming that the Defendant had signed a document denouncing any claim over that portion. That  DW 4  paid the late Geofrey  Kshs.500,000/=  as purchase  price but when  he went to the Defendant  for the transfer, the Defendant  denied having signed the disclaimer  document.

5. That the late Geofrey agreed with DW 4 that he would vacate from the land on the understanding that he would not be pursued for the money received. Thereafter DW 4  and the Defendant entered into a fresh sale agreement over the said portion.

SUMMARY OF THE PLAINTIFF’S COUNSEL’S SUBMISSIONS.

1. That the Plaintiff, as administrator  of the late Geofrey’s estate,  had a duty to collect and  preserve  the assets of the estate in accordance with the Law of Succession Act, chapter  160  of Laws  of Kenya.  The late Geofrey had bought  an interest over  Bunyala/Bulemia/2678 during  his lifetime which is  now in the names of the Defendant,  but died before he could have  the interest transferred  to his names and hence this suit.

2. That though  Order 37 of the civil Procedure  Rules contemplates  claims  of this nature to be commenced through originating summons, the Plaintiff foresaw  a contest  in this matter  and initiated  it through a plaint and in view of  Article 159 (d)  of the Constitution , the pleadings as filed are proper.

3. That the  evidence of PW 2  and PW 4  confirms the contents of document number 6 in the Plaintiff’s list of documents  in accordance  with Section 66 (e)  of the Evidence Act as they were participants  in the deliberations of 24th April, 1992.  The document shows that a committee appointed by the Chief Bunyala to listen to the dispute between the Defendant and the late Geofrey over land parcel ‘’2678 Bulemia Bunyala West’’ had  awarded the land to the late Godfrey. The committee also found that the late Geofrey was yet  to pay the Defendant  the outstanding balance of Kshs.794/=.

4. That the documents  listed as number 12  and 14  on the Plaintiff’s  list of documents and dated 5th February, 2002  and 5th April, 2013  respectively, confirms  that the late Geofrey had lodged a caution over the suit land  before he died.

5. That the evidence of the defence confirms that indeed there was a land sale agreement between the late Geofrey and Defendant  pursuant to which,  the late Geofrey  took possession of the suit land.

6. That the Defendant conceded having received some payment from the late Geofrey over the sale agreement and is yet to refund the same and  that orders of specific  performance should issue.

SUMMARY OF THE DEFENDANT’S  COUNSEL’S SUBMISSIONS.

1. That no evidence  was adduced to show that the Defendant was at any time the registered owner of land parcel  Bunyala/Bulemia/2242. The Defendant  could  therefore not have made a valid sale agreement over that parcel with the late Geofrey.

2. That the agreement of 23rd  March, 1991 if at all it existed, was void and amounted to intermeddling with the estate of a deceased person, contrary to Section 45  of the Law of Succession Act Chapter  160 of Laws of Kenya.

3. That Section 82 (b) (ii) of the Law of Succession Act does not allow disposition of immovable property by the administrator until after the grant is confirmed and therefore any sale agreement that may have been there between the late Geofrey and Defendant over Defendant’s late father’s land was in contravention of the law. The counsel referred to the Court of Appeal decision in Simiyu  -vs-  Watambamala (1985)eKLR where  Nyarangi Ag J.A stated.

‘’  …………the mere anticipation the land would devolve on   the respondents didn’t confer on them any rights on the  land…….’’

to support  their contention that the Defendant  had no locus standi to  enter into  a land sale agreement with the late Geofrey over  land that was not  in his names.  The counsel added that under section 108  of  the Evidence Act, the  burden to proof that the late Geofrey  had lawfully bought  the suit land lay on the Plaintiff and that he  had failed to  discharge that duty.

4. That the copies of the mutation forms showing that parcel 2678 was hived from parcel 2242 were not certified by the Registrar and hence are inadmissible under Section 65 of the Evidence Act.

5. That as  there was no written  agreement  over sale of Bunyala/Bulemia/2678, no suit can be based on such a contract as it would  be in contravention of Section 3 (3) of the  Law of Contracts Act.

6. That  the agreement  of 10th March, 1991  had an alteration adding figure ‘’2678’’ which was not countersigned and hence unreliable.

7. That the sale agreement  being over an agricultural land was void as no consent was obtained from the Land Control Board  as required  under  the Land Control Act, Chapter  302  of the Laws of Kenya.

8. That  possession of the suit land by the late Godfrey was with the Defendant’s  lisence and therefore did not confer any proprietary interest  on him. Furthermore, the entire period  of possession was not enough to confer the late Geofrey with  prescription rights over the suit land.

9. That  the act of the late Godfrey of moving out of the suit land in 2004  shows that  he had no further interest over the suit land and that was why he was not buried there.

10.  That an order of specific performance  is not available in favour  of the Plaintiff as the agreement was invalid.  The counsel referred to  Chitty on  Contract, 30th  Edition volume  1 where it states; The  jurisdiction to order specific performance is based on the existence  of a valid and enforceable contract …..it will not  be ordered if the contract suffers from some defect, such as failure to comply with formal requirements or  mistake or illegality, which  makes the contract invalid or unenforceable .’’

The counsel  also referred to the following three cases;

Gitanga Mwaniki & Another  -vs- Annunciata wiathira Kibue [2013]eKLR.

Fiat Kenya Ltd –vs- Ali Juma Robie [1973]E.A. 11.

Dulu Lawo  -vs- Lydia Wangui Kamau& Anor. [2013]eKLR.

11.  That the Defendant  had taken possession of the suit land  as  confirmed by DW 2 who said he cultivated on it from 2005  to 2010 on  request  of DW 4.  That the court  should make a finding  that the Plaintiff had acknowledged  that the suit land did not belong  to his  deceased father.

12.  That the fact that the late Geofrey  was buried  next  to his father about 5 KM away and not on the suit land  is an indication that he  had relinquished  all interest over the suit land.

13.  That specific performance, as an equitable  remedy, is not available to the plaintiff as the balance  of the purchase  price stated to be  Kshs.794/= in the document dated 24th  April, 1992  was not paid.  That  the  sale agreement  was not valid as the Defendant  did not have a confirmed  grant to distribute  his father’s estate .  That the  agreement had been frustrated, and counsel referred the court to  the Court of Appeal case of Charles Mwirigi Miriti –vs- Thananga Tea Growers  Sacco Ltd., &  Anor  [2014]eKLR where  the court held as follows;

‘’…………….based on the foregoing we find that the agreement was not capable  of being enforced through  specific performance ….. This is because  specific performance is based on the existence  of a valid  and  enforceable  contract’’

14.  That this suit was statute barred and contrary to section 7 of Limitation of Actions Act Chapter 22 of Laws of Kenya  that requires actions for recovery of land may not be commenced  after  the expiry  of 12 years from the date the right  accrued.  That taking  it that the  time  started running  from the date of the agreement,  being 10th March, 1991, the  twelve years  lapsed  in March, 2003. The counsel referred to the Court of Appeal decision in William  Gathui Murathe –vs-  Gakuru Gathimbi 1998 (eKLR) where the court held  that;

‘’…………………Section 7 of the Limitation of Actions Act,  provides that ……..( an  action to recover land) may not  be brought after  the end of twelve years from  the date on which the right accrued. This means that the Appellant having bought  and having been registered  as the  proprietor of the suit land  and thereby claiming ownership in the suit land, could  seek to recover it from the  Respondent, but  only if he did so within twelve years after he accrued the suit land.’’[emphasize mine]

That  the late Geofrey was barred from instituting any legal  action against the suit property after  2003 to the time of his death and that  the Plaintiff, as  administrator  of his  estate,  is equally barred as  he can only enforce what the late Godfrey  could lawfully have enforced.

15.  That  the Plaintiff’s suit lacks merit and the prayers sought cannot  be awarded and therefore  the suit should be dismissed with costs.

Having perused  the pleadings  filed herein, the following are the four main issues for the determination of the court.

Whether  or not there was a land sale agreement between the late Godfrey  and the Defendant and if so, its terms.

Whether  the late Godfrey  acquired  any defined rights over the suit land under the agreement.

Whether the late Godfrey  had performed all his obligations under the agreement and if so, whether specific performance as a remedy was available  to him.

Whether  the Plaintiff, as administrator  of the late Godfrey’s estate is entitled to the orders sought.

CONCLUSION.

1. That from  evidence  presented  by both the Plaintiff and the Defendant, it is obvious  that there was an agreement of sale of land between the late Geofrey and the Defendant. This is discernable  from the evidence  of PW 1, PW 3, and DW 1 and the  documents dated 10th March, 1991, 10th May, 1996, 24th April, 1992, 30th June, 1996, 1st June, 2002 and 29th October, 200,  among others in the list of documents dated  27th August, 2013 filed  by M/S. Ario  & company advocates,  for the Plaintiff but  erroneously indicated  as Advocates for the Defendant. That  what is  however not clear is the date of the initial  agreement and whether it was in writing as claimed  by the Plaintiff or a gentlemen agreement as claimed by the Defendant.

2. That under  section 3 (3)  of the Law of Contract Act,  the suit for disposition of land cannot be commenced unless the contract under which  the suit is based is in writing , signed by the parties and their signatures attested by a witness who was present when the contract was signed. Though  the Defendant has consistently  denied having  signed any of the documents presented by the Plaintiff in these proceedings, including  the one dated 10th March, 1991 and  the disclaimer dated  10th October, 2004, there is nothing before this court to show what action the Defendant took, like reporting to the police when he got to know of their existence for investigations to be carried out with a view of prosecuting the late Geofrey or any other person found culpable in relation to the making  of those documents. The Defendant only concedes receiving Kshs.5,000/= out of  what he stated was the agreed purchase price of Kshs.30,000/= for one acre.  The Defendant, unlike the Plaintiff did not avail any document to confirm that the purchase price was Kshs.30,000/= and  that he had only received Kshs.5,000/=.

3. That the document  dated 10. 3.1991 that was  availed by the Plaintiff  indicates that  the purchase price was Kshs.14,000/= but Kshs.15,400/= had been  paid in three instalments of Kshs.5,700/= , 1200/=, 1100/=, and 7,400/=.  The dates for the payments are  not indicated.  This shows that, if there was a written sale agreement, then it must have been of a date before 10th March, 1991.  The  court cannot work on  conjecture or  assumptions but on evidence  that has been availed. The  only conclusion that the court can come up to from the evidence availed by both parties is that the initial agreement between the late Geofrey and the Defendant was verbal.  That  by the time the late Geofrey and the Defendant decided to reduce the transaction between them into writing, vide  the document of 10th March, 1991, the  amount of the purchase  price  paid was Kshs.15,400/=. The  agreed purchase  price  for the 2. 4  hectares out of parcel 224/LCR/218 Bulemia was indicated in the document as Kshs.14,000/= .  The changes in the purchase price captured in the documents dated 24th April, 1992  indicates that the Defendant demanded an extra Kshs.10,000/= from the late Geofrey out of which the elders found  that he had been paid Kshs.9,206/=, through  provision of building materials leaving  a balance  of Kshs.794/=.  This document dated 24th April, 1992 contains the finding of the Chief’s Committee and cannot be said to reflect the agreement  between the late Geofrey and Defendant.

4. That having  found as in (2)  above, the  court  finds that the late Geofrey took possession of the land he was buying with the consent of the seller,  who is the Defendant herein.  The land  was a portion parcel 2242/LCR 218/Bulemia, as described  in the document dated 10th  March, 1991.  Had the late Geofrey  taken possession without the Defendant’s consent, the Defendant or any of the other persons with beneficial interests over the parcel of land would have taken steps to  stop him.  The Court  therefore finds that though the document  dated 10th March, 1991 was ideally meant to be an acknowledgement of  the payments  of the purchase price received by the Defendant, it contain details like the purchase price, the  parcel number, amount paid and purpose of the payment in addition to stating that the purchaser was at liberty to take possession  and carry out developments on the portion.  These are details  one expects to  find in a sale agreement. The  document therefore  amounts to  a written sale agreement between the late Geofrey and the Defendant over sale of a portion of land  measuring ‘’2. 4 hectares (6 Acres)’’ out of parcel  No.224/LCR 218/Bulemia at Kshs.14,000/= and acknowledgement  of full  payment  of the purchase  price by the Defendant.

5. That at the time the agreement  dated 10th March, 1991 was made, the suit  land as known today,  Bunyala/Bulemia/2678, did not  exist.  The suit land’s register was subsequently opened  on 13th November, 1991 as shown in the copy of the certificate of official search in the Plaintiff’s  list of documents and copy of the title deed annexed  to the affidavit of the Defendant (James Ouma Natolio) sworn  on 26th September, 2013. There is however  no doubt that the suit land  came from the subdivision  of Bunyala/Bulemai/2242, which  had been described in the mutation forms of  13th November, 1991 as 2242/Bulemia/Bunyala West.  The court finds that parcel is the same one described  in the sale agreement  dated 10th March, 1991with  the difference  being the acreage.  It is however not clear who inserted the figure  ‘’2678’’ on the agreement dated 10th March, 1991 without  countersigning for it.  In addition,  the subsequently developments, including  the hearing of the dispute by the Chief’s Committee resulting  to the document dated 24th April, 1992 and the other  letters in the list of documents filed by the Plaintiff, confirms that  Bunyala/Bulemia/2678 is the land the late  Geofrey  had bought from the Defendant.  The  late Geofrey  even filed a caution over the title claiming purchasers interest on 5th November, 2001 as confirmed  in the certificate of official search.  The size or acreage of the Defendant’s land,  had on distribution of his fathers’  estate come to  1. 04 hectares,  which is less than the 2. 4  hectares under the sale agreement which  he was selling to the late Geofrey.

6. That even though in law the Defendant could  not have had capacity to sell his share of his fathers’ estate before the grant was confirmed or the estate had been distributed  and a specific portion registered in his names,  he at least agreed in his defence to  having received Kshs.5,000/= out of Kshs.30,000/= he expected for the one acre he was selling to the late Geofrey. The court has found that he had received the amount totaling Kshs.15,400/= as set out in the document dated 10th March, 1991 and he has never refunded or offered to refund that amount or  the Kshs.5,000/= he  agreed  to have received.  He has also not transferred the land he was selling  to the late Geofrey in spite of the various interventions by the Provincial Administration. It would be unfair for the Defendant to claim that the agreement  between him and the late Godfrey was an illegality ab initio and tantamount to intermeddling  with the estate  of a deceased  when the suit property has  been registered in his names since 13th November, 1991 unlike  in the situation in the  case  of Simiyu  -vs-  Watambamala (Supra)

7. That the sale agreement dated 10th March, 1991 was indicated to have been signed by the seller, purchaser and  two witnesses, namely, John Maube Natolio and Cleophas Okhabedo Ogwa.  The late Godfrey  paid the agreed purchase price  and took possession of the portion  of land he had bought  which was subsequently registered as the suit land. There is therefore no doubt that the late Geofrey  expected the Defendant  to perform his part of the agreement and transfer the land to him.  The late Godfrey died before the suit land was transferred to him and by then he had moved from the suit land his parents land in 2004. This act of the late Geofrey  moving  from the suit land to his parent’s  land did not in any way reduce  his claim or interest over the suit land that  had legally accrued, and on his death it was now for the administrator  of his estate to pursue such interest in accordance with the law.

8. That the Plaintiff claim as administrator  of the late Geofrey’s estate  is for specific performance orders to have the suit land transferred  to him. The Defendant’s  counsel  has submitted that the Plaintiff’s  claim is time barred in view of section 7 of the Limitation of Actions Act Chapter 22 of the Laws of Kenya.  The court however notes that the claim herein is not based on adverse possession but  is for specific performance in terms of the sale agreement dated 10th March, 1991.  The  court has  already found that the Defendant had breached the agreement  by  failing to transfer the suit land to the late Geofrey  and the purchaser could have moved the court  for specific  performance  orders in accordance with the law but did not do so in his lifetime. The Court of Appeal  in the case of Gurdev Singh Birdi & Anor –vs- Abubakar Madhbuti C.A.No.165 of 1996 held as follows;

‘’It cannot be gainsaid that the underlying principle in granting the equitable  relief of specific performance  has always been under all the obtaining circumstances  in the particular case, it is  just and  equitable to do  with a view to doing more perfect  and complete justice.  Indeed, as is set out in  paragraph 487 of volume 44 of Halsbury’s Laws of England., Fourth  Edition, a Plaintiff seeking the equitable remedy of specific  performance  of a contract:

‘’ must  show that he has performed  all the terms of the contract which he has  undertaken to perform, whether expressly  or by implication,  and which he ought to have performed  at the date of the writ in the action.  However, this rule  only applies to terms which are essential and  considerable. The court does not bar a claim on the ground that the Plaintiff has failed in literal  performance, or is in default in some non-  essential or unimportant term, although  in such  cases it may grant compensation. Where a condition  or essential term ought to have been  performed by the Plaintiff at the date of the writ, the court does  not accept his undertaking to  perform in lieu of performance but dismisses the claim.’’

However, I hasten  to add that an order of specific performance is a remedy or relief for breach  of a valid and enforceable contract. The  suit seeking the relief or remedy must  in addition  be filed within the period prescribed.  The provision of Section 4 (1)  of the Limitations of Actions Act Chapter 22 of Laws of Kenya provides as follows;

‘’  4 (1)  The following actions may not be brought after  the  end of six years from the date  on which the cause of  action arose –

Actions  founded on contract.

……………………………………

……………………………………..

…………………………………….

actions, including actions claiming  equitable  relief, for which no other period  of limitation is provided  by this Act or by any other written law.’’

There is no doubt that the period  of  about twenty  two years  had lapsed from the date of  the sale agreement to the date this suit was filed. No leave for extension of time to file the suit outside the six year period has been exhibited before this court.  The late Geofrey or anybody else claiming under him or for his estate on the agreement dated 10th March, 1991  needed to commence such a claim within  the time prescribed under Section 4 (1)  of the Limitation of Actions Act. It follows therefore that by the time the Plaintiff filed this suit, the claim was statute barred.

9. That the land subject matter of the sale agreement of 10th March, 1991 was agricultural land and subject  the consent of Land Control Board being obtained  as required under Section 6 (1)  of the Land Control Act Chapter 302  of Laws of Kenya.  There is no evidence of the consent having been obtained and the agreement between the late Geofrey and Defendant was void. The monies paid under such a void agreement is recoverable as provided under section 7 of the said Act.

10.  That for reasons set out in (8) and (9) above, the court finds as  follows;

That the Plaintiff has failed to establish his case against the Defendant for reasons  set out above and the suit is dismissed.

That  though costs should follow the events, the  tribulations the late Geofrey went through in pursuit of the suit land from the Defendant without success, and the apparent reluctance by the Defendant to perform his part of the bargain  makes  this case  an ideal one  where an exemption should be made.  I therefore direct that each party bears his own costs.

It is so ordered.

S.M. KIBUNJA,

JUDGE.

DATED AND DELIVERED ON 23RD DAY OF  FEBRUARY, 2015.

IN THE PRESENCE OF;…PRESENT …………..PLAINTIFF

PRESENT …………..RESPONDENT.

MR. BOGONKO FOR MAKOKHA  FOR PLAINTIFF.

M/S. ASHIOYA  FOR THE DEFENDANT.

JUDGE