Caroline Njeri Kariuki v Samuel Maina Nganga & Saent Group Limited [2018] KEHC 2674 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

MILIMANI LAW COURTS

ELC CASE NO. 1556 OF 2016

CAROLINE NJERI KARIUKI...........................PLAINTIFF

=VERSUS=

SAMUEL MAINA NGANGA...................1ST DEFENDANT

SAENT GROUP LIMITED.....................2ND DEFENDANT

JUDGEMENT

1. The Plaintiff filed this suit against the defendants claiming a refund of Kshs.3,000,000/= with interest from 2nd February 2014 until payment in full. The first defendant is a principal shareholder of the second defendant company. The defendants who were duly served neither entered appearance nor filed defence. The plaintiff applied for entry of judgement but it appears the court officials did not endorse the entry of judgement for this liquidated claim. The plaintiff therefore proceeded to formal proof.

2. The plaintiff had entered into a sale agreement in which she was to purchase six plots measuring 50x100 at Athi River. The purchase price was Kshs.3,000,000/= which she fully paid. The first defendant did not complete the transaction within the time stipulated. The plaintiff issued a notice making completion time of essence. The first defendant did not comply. The plaintiff proceeded to rescind the agreement and demanded a refund.

3. The first defendant agreed to refund the plaintiff the purchase price paid. The first defendant issued six cheques drawn by the second defendant for Kshs.500,000/- each. All the six cheques were returned unpaid. The first defendant became evasive after this prompting the plaintiff to file this suit.

4. I have gone through the documents produced by the plaintiff. There is a sale agreement dated 3rd November 2013 between the first defendant and the plaintiff. The plaintiff was purchasing six plots out of un-surveyed plot No.255 Athi River. The plots were identified in the agreement as plot Nos.11,12,13,14,15 and 16. The entire purchase price was paid on execution of the agreement.

5.  The agreement provided for issuance of a 21 days’ notice in case the vendor defaulted. This notice was given by the plaintiff’s lawyer on 15th September 2015. The agreement was thereafter rescinded vide a rescission notice issued on 6th November 2015. A demand for the refund was made on 17th August 2016 after which suit was filed. The plaintiff produced copies of six cheques given by the second defendant in her favour all of which were returned unpaid.

6.  The plaintiff’s evidence has not been controverted. I find that the plaintiff has proved her case against the defendants on a balance of probabilities. I allow her claim in terms of prayer (a), and (b) of the Plaint.

Dated, Signed and delivered atNairobi on this 4th  day of October 2018.

E.O.OBAGA

JUDGE

In the presence of:

M/s Chichi for Mr Kariuki for Plaintiff

Court Assistant: Hilda

E.O.OBAGA

JUDGE