Aziza Kipsang Mohammed v Ali Juma Abdulahi [2014] KEHC 2374 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

LAND AND ENVIRONMENT  CASE NO. 81 OF 2013

AZIZA KIPSANG MOHAMMED ................ PLAINTIFF

VERSUS

ALI JUMA ABDULAHI.......................... DEFENDANT

MODE OF PROCEEDING …..................... First Track

JUDGMENT

1.         The   Plaintiff filed this suit seeking a claim for;

i.          Specific performance of the sale agreement dated 2. 10. 12 and an order that    L.R. E. Bukusu/S. Kanduyi/8772 be transferred to the plaintiff forthwith.

ii.         Damages for breach of contract.

iii.        Costs of this suit.

iv.        Any other remedy this honourable court deems fit to grant.

2.         The defendant was duly served but failed to enter appearance  within set time lines. The plaintiff thus  set her suit down for hearing exparte.  In her oral evidence, she told court that on September 2012, the defendant was looking for someone to buy his land.  She was introduced to the defendant by Fatuma Wafula and she  expressed  her interest to buy the said land.  They negotiated the price and agreed the price at Kshs. 400,000/=.  Consequently  she did an official search and found the  land free from any encumbrances.  She produced  the search as Pex. 1.

3.         The defendant availed to her his  pin certificate and copy of ID which the plaintiff produced as Pex. 2 & 3 and passport size photograph as Pex. 4.  On 2. 10. 12 they drew the sale agreement at Fatuma's house and proceeded to produce the sale agreement as Pex. 5.  She paid  the   first deposit of Kshs. 200,000/= and cleared the balance  in one  installment. The balance of Kshs. 200,000/= was taken to the defendant in cash by Fatuma and Ibrahim to Nairobi.  The defendant  sent to  execute transfer forms which the plaintiff produced as Pex. 6.  The plaintiff was told there was  caution on the land  hence transfer could not be effected.

4.         The plaintiff sent the said Fatuma and Ibrahim to Nairobi to   ask the defendant to remove the caution but the defendant denied  placing the caution. Instead the  defendant sent a note that he had changed  his   mind not to sell the land.  The note was produced  as pex. 7.  The plaintiff reported the matter to the police who  advised  her to  place a caution on the title.  She produced  copy of her caution form   presented as pex. 8. Later her advocate did a  demand letter to the defendant which she produced as pex. 9.   The plaintiff learnt it was the defendant's son who  had placed the caution.  To dated she has not received her money or title deed.   However she is using  the land.  She  urged the court to grant her an order to get title to this  land and also be awarded costs.

5.  FATUMA WAFULA RAJAB testified as PW2. She lives in Bungoma town  and is a businesswoman. The defendant approached her to help him get a buyer for his land. She  got the plaintiff who was interested in purchasing the land.  When  the parties were ready in October, they called their witnesses and entered   into a  written  sale agreement.  Kshs. 200,000/= was paid on execution and the balance Kshs. 200,000/= was taken to the defendant in Nairobi by PW2 and the defendant's brother.  PW2 said she  saw the defendant  execute  the transfer form and the agreement acknowledging receipt of the   money. The plaintiff informed the  witness of existence of a caution on the title.  Later PW2 went back to  the defendant in Nairobi asking  him to sort out the matter.  She again saw the defendant  write Pex.7.   The Plaintiff closed her case at this juncture.

6.         Mr. Wanyama advocate for the plaintiff filed written submissions which I have  had the opportunity to  peruse and need not  reproduce its contents here.  The submissions contain a summary of the evidence on record which I have already  summarized in the preceding paragraph.  The question this court seeks to  determine is  whether  the plaintiff has proved her case within the standards provided in civil case so as to be entitled  to the orders sought  as the suit was not defended.

7.         From the  documentary evidence availed by the plaintiff, it is  clear there was an agreement of sale of land measuring 0. 05 ha comprised in parcel no. E. Bukusu/S. Kanduyi/8772 between the defendant  and the plaintiff (pex.5) on 2nd October 2012.  The agreement was witnessed by  six people.  The plaintiff also produced  as pex. 6 which were executed transfer form and letter of consent  from the  chairman  Kanduyi Division Land Control Board dated 11th December 2012  giving consent to transfer land to the plaintiff.  The plaintiff  produced as pex. 1, a copy of official search for title E. Bukusu/S. Kanduyi/8772 showing it was  duly registered in the defendant's name and  free from all/any encumbrances. The defendant had made available copies of his pin certificate, ID and passport size  photograph produced as pex. 2,3 and 4 respectively.

8.         The plaintiff has not said or demonstrated to this court whether she presented these documents in  possession to  the land registrar for purposes of registration and the reason the  registrar  declined to  act on them.  Instead her evidence is that she was told there was a caution registered   on this title  hence transfer in favour could not be effected.   She does not disclose who gave  her this information.   She did  not endeavor to avail  to this court  current official search done on the title to show  there is existing  caution placed by the defendant or his representative. PW2 attempted at alluding the caution was placed by the defendant's son  known as Roy Mohammed Juma  but there is nothing to support this averment.  I find therefore  the    allegation of caution placed on title  E. Bukusu/S. Kanduyi/8772 is not  substantiated by the evidence  on record.

9.         The plaintiff went ahead to  register  a caution on this land pex. 8 (a) caution form  (b) receipt  paid on  23rd January 2013 on basis of a note she received written by the defendant (pex. 7).

The note  in my  is  questionable as it is not even signed by the defendant who purportedly  authored it.  The note was not copied to the  land registrar therefore it is my finding  that it did not also  bar  the plaintiff from presenting the documents to the registrar to  enable  her  acquire title in her name.  Furthermore the plaintiff admits she is in  occupation and use of the land. The defendant or his  representative has not made any attempts to bar her from using the land  otherwise she would have said so.

10.      I do not find from the evidence presented by the plaintiff any fault by the defendant in performing his obligations under the agreement between them.  It is a  requirement  of law that he who alleges must prove and that standard in civil law must be on a balance of probabilities.  Sections 107, 108 and 109 of the  Evidence Act deals with proof of facts.  Section  107 (i)

“Who ever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he   asserts must prove that those facts  exists.

107 (2) when a person is bound to prove the existence of any fact, it is said the burden of proof  lies upon that person.

108;    The burden of proof in a suit or proceedings lies on the person who would  fail if no  evidence at all was given on either           side.”

Similarly inMiller Vs. Minister of Pensions [1947] 2 ALL E.R 372,Lord Denning said,

“It must carry a reasonable degree of probability not so   high as required in criminal  cases. If the evidence is such        that the tribunal can say; 'We think  it is more probable than not; the burden is  discharged. But if the probabilities are  equal then it  is not.”

11.       The plaintiff  has not  specified any  breach occasion to her by the    defendant. In conclusion, I  find the plaintiff has failed to prove her case on a balance of probability. The claim in my view was premature  and or brought against the wrong party therefore fails and  its hereby dismissed. Since the suit was not defended, there is no order for costs made.

DATED, SIGNED and delivered this 30th day of September, 2014     .

A. OMOLLO

JUDGE.