FRANCIS WACHIRA NDERITU v JOHN WAWERU KINYANJUI [2010] KEHC 3365 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (NAIROBI LAW COURTS)

Environmental & Land Case 252 of 2009

FRANCIS WACHIRA NDERITU ……………………………….PLAINTIFF

VERSUS

JOHN WAWERU KINYANJUI …………………………………DEFENDANT

R U L I N G

The plaintiff and the defendant entered into an agreement for sale in respect of propertydescribed as LR. No. Nairobi/Block 105/6003 and LR. No. Nairobi/block 105/6004. Thisproperty belonged to the plaintiff and the defendant offered to buy the same. The agreement

is dated 17th February 2009.

Upon execution of the said agreement, the defendant paid the sum of Kshs.200,000/= and alsosurrendered to the plaintiff his motor vehicle registration No.KAU003F Honda CRV valued atKshs.600,000/=. The purchase price of the parcels of land was Kshs.2 million.

As a result of the payment of Kshs.200,000/= and the surrender of the motor vehicle valued atKshs.600,000/=there was a balanceof Kshs.1,200,000/=This was to be paid within thirty(30) days of executing the said agreement. Immediately the said agreement was executed,and specifically the following day, the plaintiff moved to rescind the same on the ground thatthe defendant took advantage of his drunken state and that he never intended whatsoever tosale his property.

He offered to return the amount of money paid i.e. Kshs.200,000/= and also surrender themotor vehicle aforesaid. There is evidence on the pleadings that the defendant accepted therefund of Kshs.200,000/= but to date has refused to accept the return of the motor vehicle.

This prompted the filing of the present suit.The prayers sought out in the plaint are that there should be an injunction to restrain thedefendant, his servants or agents from interfering, alienating and/or remaining or carrying onany activity on the suit premises pending the hearing and determination of the suit, and anorder declaring the purported contract a nullity. There is also a prayer that an order be issueddirecting restitution of the plaintiff’s title documents to the suit premises and return of thedefendant’s motor vehicle registration No.KAU003F unconditionally.

Alongside the plaint, the plaintiff filed an application by way of Chamber Summons underOrder XXXIX rules 1 and 2 of the Civil Procedure Rules and Sections 3A and 63(e) of theCivil Procedure Act asking for restraining orders aforesaid until the application and the suit

are determined.

The grounds upon which the said application is based are that the purported sale agreementhas fallen through and is incapable of being enforced and that the defendant’s remedy lies indamages. It is also the plaintiff’s case that the defendant has threatened to enter the suit

premises by force and has refused to release the title documents to the plaintiff despite theagreement having fallen through. The defendant has also refused to accept back his saidmotor vehicle for no apparent or justifiable reason.

On 29th May, 2009, Nambuye J gave restraining orders pending the hearing of the applicationinter-partes. Both learned counsel have filed written submissions in addressing the applicationwhich I have read.

The allegation of whether or not the plaintiff was duped to sign the agreement while he wasdrunk and incapable of making a sound decision is a triable issue. I note that the defendanthas accepted a refund of Kshs.200,000/= which had been paid by the plaintiff in part

compliance of the said agreement. In my view, this would point to the fact that the defendantaccepts that the agreement is incapable of compliance. The only issue that has remained is

that of the return of the motor vehicle and payment of any damages if any, which the plaintiffhas denied.

In cases of this nature, the applicant must confirm or prove that, he has a prima facie casewith a probability of success and that damages would not be adequate compensation in thecircumstances of the case. If the court is in doubt, it would decide the matter on a balance of

convenience. It is not clear why the defendant has accepted the refund of the deposit paid tohim by the plaintiff and at the same time refused to accept the return of the motor vehiclewhich was part and parcel of the agreement aforesaid.

That notwithstanding, it is apparent that this agreement is incapable of enforcement. I agreewith the submission by the learned counsel for the plaintiff that specific performance may notbe ordered where damages would be adequate compensation in the event a party succeeds andso, with that in mind, I find that the plaintiff has established a prima facie case with aprobability of success and that restraining orders as sought in the Chamber Summons dated28th May, 2009 should be confirmed. I hasten to add that it may be difficult for the defendantto mitigate his loss if he continues to refuse to take possession of the motor vehicle allegedlyin possession of the plaintiff.

I order in the circumstances that, the said motor vehicle shall be returned to the defendantthrough an appropriate party if the defendant is unwilling to take possession of the same. Thecosts of this application shall be in the cause.Orders accordingly.

Dated, signed and delivered at Nairobi this 9th day of December, 2009.

A. MBOGHOLI MSAGHA

JUDGE