Benard Waliaula v Denis Magas Kubkway [2018] KEELC 37 (KLR)

Full Case Text

0REPUBLIC OF KENYA

ENVIRONMENT AND LAND COURT

AT KITALE

LAND CASE NO. 96 OF 2017

BENARD WALIAULA.......................................................PLAINTIFF

VERSUS

DENIS MAGAS KUBKWAY..........................................DEFENDANT

J U D G M E N T

1. The plaintiff commenced this suit vide a plaint dated 18th May, 2017 in order to seek the following orders:

(a)Kshs.480,000/=

(b)Costs of this suit

(d) Any other relief this honourable court may deem just and fit to grant.

2. The affidavit of George Kapchanga a court process server dated 5/10/2017 was filed into the record. It shows that service of the summons to enter appearance, plaint and other documents in the suit was effected upon the defendant on 30/6/2017. Despite that the defendant never filed any memorandum of appearance or defence. He never appeared at the hearing when this case was listed for formal proof. The plaintiff alone testified in the suit.

3. The plaintiff donated a power of attorney to one Paul Abedi Waliaula who testified on 4/7/2018 at the formal proof of this case. He averred that he is an advocate and that he is testifying on behalf of the plaintiff. He produced the general power of attorney as P. Exhibit 1, certified copy of the agreement dated 8/5/2014 as P. Exhibit 2, payment voucher dated 30/6/2014 for Kshs.100,000/=, a receipt for legal fees paid to Karanigrey & Company Advocate for Kshs.60,000/=. He also produced notice of withdrawal of suit in Kitale ELC No. 179/2016 as well other documents filed in that case as P. Exhibit 5. During the hearing the statement of the plaintiff was admitted as evidence without calling him.

4. According to the plaint and the plaintiff’s evidence his claim is that he is the bona fide purchaser for value of a commercial plot known as Plot No. 31 Endebess Trading Centre within Trans-Nzoia County measuring 50 by 100 feet; that he purchased the land from the defendant in the year 2014 vide an agreement dated 8/5/2014 for Kshs.400,000/= of which he paid Kshs.300,000/= upon execution of the agreement and that the balance of Kshs.100,000/= was paid on 30/6/2014 as per the agreement; that he took possession and began development thereon fenced the plot, drilled a borehole and constructed a toilet slab; that on or about 25/11/2016 one James Cheminingwa trespassed on the suit land claiming to be the owner and commenced the construction of a temporary structure thereon; that upon being summoned by the police James insisted he was the owner; that the plaintiff then filed Kitale ELC No. 179 of 2016 and in that suit James filed a replying affidavit annexing an allotment letter in his name claiming he is the owner of Plot No. ‘C’ Endebess Trading Center; that it is then that the plaintiff suspected that the defendant must have defrauded him by showing him a plot belonging to another person; that the plaintiff unsuccessfully sought the help of the defendant to clear the air regarding James’s claim; that the defendant refusal to co-operative was a sign that he did not own the plot; that the plaintiff incurred Kshs.80,000/= in terms of legal costs in instituting Kitale ELC No. 179/2016 and paying annual rates and rent to the county government of Trans-Nzoia; that the defendant actions amount to breach of contract under clause 5 of the agreement and that the plaintiff seeks a refund of the purchase price and the sums incurred as described herein before all totalling to Kshs.480,000 and cost of the suit.

5. I have considered the evidence of the plaintiff in this case. The defendant does not oppose the claim. The evidence of the plaintiff was not controverted.The plaintiff paid he defendant Kshs.400,000/= in respect of a plot which he knew was not his.This is supported by evidence produced at the hearing. When the plaintiff went to take possession of the plot he was confronted by another person who claimed to have ownership documents from the County Government.

6. It was incumbent upon the seller, that is the defendant, to help the plaintiff unravel the mystery behind the claim by James Cheminingwa. However when the plaintiff filed suit against James the defendant kept a low profile and refused or neglected to offer his help in claiming the plot. When plaintiff filed suit the defendant never responded with any defence or counter claim against either the plaintiff or James Cheminingwa who has now taken possession of the plot. The conduct of the defendant therefore renders it reasonable to believe that from the beginning of the sale the defendant knew that there was something suspect about his claim to ownership of the plot he sold the plaintiff. Were it otherwise he would have joined the plaintiff in Kitale ELC No. 179 of 2016 as a co-plaintiff or as a witness or even defended himself by filing a defence in this suit.

7. I therefore find that the plaintiff has proved his claim against the defendant on a balance of probabilities and I issue the following final orders:

(a) The defendant shall refund the plaintiff the sum of Kshs.400,000/= being the purchase price paid to him for the purchase of the suit land.

(b) The defendant shall refund to the plaintiff the sum of Kshs.60,000/= paid as legal fees in Kitale ELC No. 179/2016.

(c) The defendant shall refund to the plaintiff Kshs.20,000/= being rents and rates being paid to the County government of trans-Nzoia.

(d) The defendant shall pay interest on (a), (b) and (c) above at court rates with effect from 8/5/2014.

It is so ordered.

Dated, signed and delivered at Kitale on this30thday of July, 2018.

MWANGI NJOROGE

JUDGE

30/7/2018

Coram:

Before - Mwangi Njoroge, Judge

Court Assistant - Collins

Ms. Mufutu holding brief for Nasike for plaintiff

Defendant absent

COURT

Ruling read in open court.

MWANGI NJOROGE

JUDGE

30/7/2018