Geofrey Njeru Reuben Mukatha v Roselyne Dola Ouko ( Administrator of Estate of Jason Atinda Ouko deceased), Aaron Tayari Ouko Administrator of the estate of Jason Atinda Ouko Deceased, Joseph C Wambugu, A W Mathenge & Registrar of Titles [2020] KEELC 1815 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA

AT NAIROBI

ELC NO.20 OF 2009

GEOFREY NJERU REUBEN MUKATHA............................................PLAINTIFF

VERSUS

ROSELYNE DOLA OUKO ( Administrator of Estate of JASON

ATINDA OUKO  deceased).............................................................1st DEFENDANT

AARON  TAYARI OUKO Administrator of the estate of JASON

ATINDA OUKO Deceased............................................................2ND DEFENDANT

JOSEPH  C WAMBUGU..............................................................3RD DEFENDANT

A W MATHENGE.........................................................................4TH DEFENDANT

REGISTRAR OF TITLES...........................................................5TH DEFENDANT

J U D G M E N T

Background and the Pleadings

1. This suit was commenced by way of plaint dated 14th January 2008 which was subsequently amended on 31st January 2011. By the amended plaint the plaintiff prayed for judgment against  the defendant as follows:-

a. A permanent injunction restraining the 3rdand 4th  defendants by themselves, the agents, servants and employees from trespassing  into the plaintiff’s property herein LR No. 3589/6 Lang’ata.

b. A permanent  injunction  restraining  the 1st 2nd and 3rd  defendants by themselves, through  their servants, agents and employees from selling, disposing alienating  or dealing with L.R  No.3589/6 Lang’ata.

c. An order as against the 1st and 2nd defendants for specific performance of the agreement therein.

d. An order declaring the plaintiff the legal owner of L.R No.3589 Lang’ata.

e. Damages

f. Costs and interests as the Court may deem fit.

g. Any further or better relief as the Court may deem fit.

2. The Plaintiff’s action was founded on the abortive sale agreement dated 28th September 1976 entered into between the plaintiff and his wife on one part and the late Jason Ouko (deceased) on the other part. Inspite of prolonged exchange of correspondences  between  the parties legal representatives the transaction was not completed  precipitating these proceedings.

3. The 1st and 2nd defendant as the administrators of the estate of Jason Atinda Ouko filed a statement of defence to the plaintiff’s amended  plaint. While the 1st and 2nd defendants  admitted the agreement dated 28th September 1976, they averred that the plaintiff failed to honour  the terms  of the agreement  with the result that the  agreement  was rescinded on account  of failure to abide  by the terms of the agreement.

4. The 3rd and 4th defendants filed a statement of defence and counterclaim dated 21st February 2011. The 3rd and 4th defendants denied the averments made against them by the 1st plaintiff in the amended plaint. They  specifically  pleaded that on 29th April 1979, the late  Jason Atinda Ouko entered into  an agreement with the late Raphael  Nderitu  Mathenge ( husband to 4th defendant) for sale of the suit property  and they were  thus in possession of the property  as beneficial  owners. They denied they were trespassers on the suit property.

5. By the counterclaim the 4th defendant as the wife and personal representative of the late  Raphel Nderitu Mathenge averred that they had fulfilled the terms  of the agreement  dated 29th April 1979 and had taken  possession of the land. They stated that the late Jason Atinda Ouko had pursuant to supplementary   agreement made on or about 20th February 1991  acknowledged full payment of the purchase price and undertaken to transfer the property to the later Raphel Nderitu Mathenge. The 4th  defendant  stated that  she  on 5th August  1994 entered into a sale  agreement  with the 3rd defendant to sell  a portion  of one (1) acre out of the suit property and that the 4th defendant took possession of and has developed his one (1) acre portion. The 3rd and 4th defendants by the counterclaim prayed for judgment for: -

(a) A declaration  that the estate of the late Raphael  Nderitu  Mathenge is the legal owner  of subdivision of L.R No. 3589/6 Langat  Nairobi measuring  five  (5) acres  identified on the scheme of subdivision as letter “C”;

(b) An order to the  1st and 2nd Defendants  to execute transfer instrument  in favor of the 4th defendant for the 5 acres of L.R No.3589/6 Langat Nairobi and all other  documents  necessary to effect the transfer;

(c) In the alternative, an Order to the Deputy Registrar High Court to execute transfer  instrument in favour  of the 4th Defendant  for the transfer  of 5 acres of L.R No.3589/6 Langata Nairobi and all other documents necessary to effect  the transfer;

(d) A permanent order  of injunction do issue  to restrain  the Plaintiff, his agents, employees from trespassing, occupying , claiming, dealing  or interfering with the 4th  Defendant’s  quiet possession or in other way howsoever  dealing  with the5 acres of L.R No.3589/6 Langat  Nairobi.

(e) Damages for trespass, costs and interest.

6. The 1st and 2nd defendants  in answer  to the counterclaim by  the 3rd and 4th defendants admitted that  there was an agreement  entered into  on  29th April 1979 between the  late Jason Atinda Ouko and Raphael  Nderitu Mathenge for sale of  apportion  of 5 acres . The 1st and 2nd defendants contended that by the time of his death, the late Raphael Nderitu  Mathenge  had  not honoured  the terms of the agreement  dated 29th April 1979 and the supplementary agreement dated 20th February 1991  and would  therefore not be entitled to the orders sought in the counterclaim. As relates to the purported  sale of a portion  of one (1) acre to the 3rd  defendant  the 1st and 2nd defendants averred that the sale if any, was made in clear breach  of the agreement between the late Jason Atinda Ouko and Raphael Nderitu Mathenge which  expressly  forbade  any sale and /or transfer to any third party.

7. The suit was heard before me at Nairobi on diverse dates during service week(s). The plaintiff had prepared a trial bundle and all documents in the bundle were admitted in evidence by all the parties by consent. The plaintiff testified and called two witnesses. The 4th defendant testified  as DW1, the  3rd defendant as DW2. The 2nd defendant testified as DW3 on behalf of himself   and the 1st defendant. The 5th Defendant Registrar of Titles, did not participate in these proceedings. The parties following  the conclusion of the trial  filed their respective written  submissions.

The Plaintiffs Case:

8. The plaintiff, Geoffrey Njeru Reuben Mukatha, testified as  PW1. He relied on his recorded witness statement dated 20th January 2012 and the documents as listed in the bundle of documents dated 20th January 2012. It was his evidence that he entered into a sale agreement with the late Jason Ouko to purchase a portion of 5 acres out of land parcel L.R  3589/6. The portion was identified as plot ‘C’ in the proposed subdivision  Scheme. The sale agreement dated 28th September 1976 was exhibited as Document (1) in the plaintiffs bundle of documents.  As per the agreement the total purchase price was Kshs130,000/= and the plaintiff  paid a deposit of Kshs26,000/=  upon execution of the agreement representing 20% of the purchase  price. The balance of Kshs104,000/= was to be paid on completion  of the transaction. The plaintiff  stated that after waiting for about one year  for the title documentation to be ready to enable  completion of the transaction  without getting anything from the seller’s advocates his advocates ( the  plaintiff’s)  wrote  to the seller  the letter dated 26th August, 1977 exhibited as document No.3 in the plaintiff’s bundle of documents. In the letter the plaintiff’s advocate was raising  concerns in regard  to the delay of the transaction. Inter alia  part  of the letter  stated:-

“ In pursuance of the Agreement for  sale  and purchase our clients duly paid Shs.26,000/=  to House  & Estates on 28th September 1976 being  the 20% deposit of the original  purchase price of shs.130,000/=. It was an express  condition  of the said agreement  for sale that completion  of the said property  transaction would take place within  four  months  from 28th September  1976, i.e by the end of January, 1977.

We are instructed by our clients that despite repeated requests  by telephone calls from Mr. Mukatha to Mr  Mario  Pala of the House  estates there has been no response  from  either  Mr.  Jason  Ouko or from the said  Estate Agent.”

9. The plaintiff’s advocates continued to follow  up in regard to the completion   documents for the transaction and on 18th January  1979 wrote to M/s Daly & Figgis  Advocates for the Seller as follows:-

RE: Mr & Mrs G.H.R MUKATHA – PLOT ‘C’ LR 3589/6

We refer to the Agreement of Sale dated 28th September,1976 and to your letter of 9th September,1977.

It is now over two years since the above agreement was made and the necessary deposit  paid by our clients; we fail  to understand  why it is taking such a long  time to complete this transaction.

In view of the above, unless we receive the necessary  Deed plans for the sub-division to be sold to our client on  or before  18th February,1979, our instructions are to file the necessary  court proceedings against your clients jointly and severally  for specific  performance  of the said  agreement and also to claim interest at the rate of 15% per annum from 1st  February, 1977 without  further notice whatsoever  and at our clients’ risk  as to the costs and consequences.

Yours faithfully

B.R. PATEL & CO.

C.C. Clients

10. After  some prodding  M/s  Daly & Figgis  Advocates wrote  to the plaintiff’s Advocates  the letter dated 19th July, 1979 which was in the following  terms:-

Dear sirs:-

L.R NO.3589/6- LANGATA

We refer to your letter dated 23rd April, 1979.

We have at last been able to obtain some instructions from our client who has offered to refund your client his deposit of shs.26,000/= in full.

Please let us know urgently whether this is acceptable.

Yours faithfully

For: DALY & FIGGIS

P.J.S HEWETT

Cc: Mr. J.A Ouko

11. The plaintiff in his evidence explained  that he rejected the offer for refund of the deposit  paid  to the seller and by  his  advocates letter dated 3rd September 1979 to the seller’s Advocates exhibited as documents 7 in the bundle sought confirmation that the seller  would effect transfer  of plot ‘C’  to the plaintiff . The said letter intimated that the plaintiff would seek specific performance  of the agreement  if no confirmation  in regard to the transfer  was forth coming.

12. The plaintiff further explained that following a change of his advocates his new advocates M/s Vohra & Gitao Advocates continued correspondence with the firm of Kagwe & Co. Advocates who were representing the seller which saw the exchange of various letters dated 2nd September 1994, 10th October 1994, 4th March 1995 and 4th November 1995 exhibited from pages 28-31 in the plaintiffs bundle  of documents. The  said letters all touched  on the issue of completion of  sale  transaction to the plaintiff by the sellers.

13. The plaintiff further testified that the seller’s  advocates  M/s  Kagwe & Co Advocates  in an effort to resolve  the matter regarding  the completion of the sale transactions conveyed  meetings with the buyers. The letter  dated 4th November 1995 exhibited at page  31 of the bundle  of documents explained why the completion of the transaction  was hampered  and suggested a meeting to discuss  the  matter. The letter addressed to the plaintiff was in the following terms :-

Dear sir,

RE: RELEASE OF TITLES- SUB-PLOT NO.12

OF L.R NO.3589/6- MR  JASON ATINDA OUKO

We act for Mr. J.A Ouko, the registered owner of the above-mentioned piece of land which he subdivided in 1976. We  have been informed  that  you are  a purchaser  of the above mentioned  sub-plot. You are aware that you cannot obtain  title for your sub-plot because some purchasers have placed  caveats and Court   Orders  against the whole piece of land. Our efforts to streamline the subdivision scheme and procure deed plans for all, have been hampered by several drawbacks, but now hinges on your utmost – co-operation .

It  has therefore been proposed that all the purchasers avail themselves for a meeting in our offices on Saturday, 25th November 1995 at 10. 30 a.m. Our Offices are situated in WESTLANDS, MAIN SHOPPING CENTRE, WAUMINI HUSE, WESTERN WING, 2ND FLOOR. We intend to discuss one option which may assist in concluding this matter which has been outstanding for years.

Your presence in the meeting will be highly appreciated.

Yours faithfully

KAGWE & Co.

M THANDE  (MRS)

14. The  plaintiff affirmed that the meeting  called for vide the letter was duly held on 25th November 1995 as scheduled and  that he  attended  the meeting with his wife together with other purchasers as indicated  in the minutes of the meeting  exhibited at pages 35 to 37 in the trial bundle. He stated the 3rd and 4th defendants did not attend the meeting. He stated at the meeting issues concerning the delay in completion were discussed and specifically minute 6 explained the problem in regard to obtaining approval and the Deed plans. He explained that the seller’s advocate vide the letter dated 27th June 1996 exhibited at page38 of the bundle informed   them  about  the death  of the seller.

15. The plaintiff further in his evidence stated that he was not aware of the agreement entered into between the seller and Raphael Nderitu Mathenge dated 29th April 1979 exhibited at page 96 of the trial bundle. He stated he was never served with any notice rescinding his agreement with the seller. He stated that it was on 24th August1998 that the firm of Ndungu Njoroge & Kwach Advocates  wrote  to him notifying  him that R N Mathenge was in the process  of purchasing  plot No. ‘C’ of L.R  No. 3589/6 which was the same plot that had been sold to him ( letter  at page 39 trial bundle). The letter was in the following terms: -

Dear  sir,

PLOT ‘C’ OF L.R NO.3589/6

R N MATHENGE- DECEASED

We act for the widow of the late R N Mathenge who at the time of his death was in the process of purchasing the above-mentioned property and had installed water-piping thereon.

Our instructions are that towards the end of last year you wrongfully took over possession of the property, cut our client’s trees growing thereon and put up an iron-sheet structure thereon and that you have since cultivated on the property  and continue  doing  so.

Our client  wishes that you stop forthwith this  invasion of her property and we accordingly  hereby give you notice to vacate the property  and remove the said structure within ten days from the date of this letter, failing which  our client will take such  steps  as may be necessary to regain possession  of the property.

Yours faithfully

NDUNGU NJOROGE & KWACH

Raphael  K Ng’ethe

CC: D O  Langata Area

Chief – Langata Location

OCS Langat

16. The plaintiff testified that he was in possession of plot C as from 1982 when he constructed a mabati structure on the property. The plaintiff’s  advocates responded to letter of 24th August  1998 exhibited  at  page 40 of the trial bundle where it was explained the plaintiff had purchased  the property  and that the delay in completion of the transaction was occasioned  by the vendor’s inability  to avail the completion documents. The plaintiff explained that the advocates of the 3rd and 4th defendants engaged his advocates in correspondence and there was a suggestion that I agree to an apportionment of the plot between ourselves. The plaintiff stated he was opposed to any apportionment of the plot he had purchased with anybody else.

17. The plaintiff further testified that the 3rd and 4th defendants around 2001 unlawfully entered into occupation of the suit property which prompted the plaintiff’s advocates M/s Kamau Kuria & Kiraitu Advocates to write to the seller’s advocates on 21st March 2001 complaining about the illegal entry onto his plot. He was emphatic that before 2001 there were no structures erected by the 3rd and 4th defendants on the plot. The plaintiff stated that though he presently resides in Meru, his son Richard Njeru and his workers have been in possession and occupation of the land. He however stated that on 18th February 2018 some people forcibly invaded the land with the object of evicting his son and the workers. The group of people numbering about 40 demolished his houses as captured in the photos exhibited in the supplementary bundle and forcibly evicted them.

18. The plaintiff further testified that the 3rd defendant first came to the land in 2001 and he started constructing thereon but stopped when the plaintiff reported the matter to the police. The plaintiff stated that in order to protect his interest in the property he lodged a caveat and later instituted the present suit in 2009. He explained that he took sometime from 2001 to file the suit because there were negotiations and he was hoping the matter could be settled. However as the matter  was pending  hearing, the plaintiff stated that he was forcibly evicted in February  2018 notwithstanding that  the Court  had in 2009 when the suit was filed ordered the observance and maintenance  of the status quo. The plaintiff stated he believed that  the 3rd and 4th defendant had something  to do with the invasion  of the property  in February 2018.

19. The plaintiff in conclusion of his evidence stated that he had always been ready able and willing to pay the balance  of the purchase  price. He reiterated that position and urged the court to grant him the reliefs sought in the plaint.

20. Under cross examination by Mr. Muchoki advocate  for the  1st and 2nd  defendants, the  plaintiff insisted  the balance of the purchase price  was payable  against the completion  documents being available . The completion documents never got ready and hence the balance did not fall due to be paid. The plaintiff affirmed that following the death of the seller (Ouko) he never approached the administrators to pay   the balance or to discuss the matter.

21. Cross examined by Mr. Thuku advocate for the 3rd and 4th defendants, the plaintiff stated he was a retired Civil servant and presently resided in Meru. He stated he personally never resided on the suit property. He stated his wife passed away in 2001 and that Richard Njeru was his foster son having been a son of his wife’s sister whom he brought up. He stated he visited the suit land in 1976 when he was buying and took possession after he paid the deposit pursuant to the sale agreement. The plaintiff stated he placed a caveat over the land in 1980 and took possession under the advice of his advocates in 1984 even though he had not paid the full purchase price.

22. The plaintiff stated that he sued the 3rd and 4th defendants because they had entered onto his land. He stated he put structures on the land in 1990 comprising three roomed mabati house. He stated his worker, Mutembei had been on the land since about 1994. The plaintiff reiterated that his agreement was never revoked and that he had given the seller intimation that he would sue for specific performance of the agreement of sale.

23. PW2 Richard  Njeru Mukatha in his evidence stated he was one of the persons who were evicted  from the land in Karen in February 2018. He affirmed his father, the plaintiff had purchased the Karen land and had constructed some temporary houses on the land where the farm hands were residing . He stated his father had put up 2 mabati houses and he (PW2) in 1987/88 put up another  mabati  house where he lived from 2001 to 2018. He stated lived on the land with one Mutembei.

24. The witness affirmed  that he knew the 3rd defendant and stated that  the 3rd defendant came to the suit land in 2003 and started building on a portion of the land but they stopped him after he had done the foundation slab. The witness however  said the 3rd defendant later built  a mabati structure on the land. He said he first saw the 4th defendant in February 2018.

25. He stated the 4th defendant was claiming ownership of the land. He stated on 5th February 2018 a group of persons descended on the land and demolished and damaged their houses. He said they made a report to the police at Hardy police Station but that notwithstanding the 3rd and 4th defendants later sent a bulldozer to the land which flattened everything on the land.

26. In cross examination the witness stated he was only 4 years in 1976 when the sale agreement was entered into. He admitted he was an adopted son of the plaintiff. He reiterated that he started living on the land on a permanent basis in 2001. He was emphatic that the 3rd defendant only came to the land in 2003 when he started building a house. He stated the 3rd and 4th defendants were not personally present when unknown  persons  invaded  the land and forcibly evicted them.

27. PW3 Mutembei Mboria in his evidence stated he was employed by the plaintiff in 2003 at his land in Langata near  Bomas of Kenya . He stated that at the time he was employed there were two (2) other workers on the land, a Mr  Kimathi and a Mr. Kariuki. He sated he was residing  in the mabati  house which had 3 rooms. He stated he left employment of the plaintiff in 2011. He stated in cross examination that Mr. Wambugu, the 3rd defendant found him on  the land.

The 3rd & 4th Defendants case

28. The 4th  Defendant, Agnes  Wachuka   Mathenge  testified as DW1. She testified that she was the widow of Raphael Nderitu  Mathenge who  died in April 1991. She was resident in the United  Kingdom  having migrated there in December 1995. She relied on her witness statement dated 14th June 2012. In her evidence she stated that she took out letters of administration for her late husband’s estate in 2014 as per the Grant of letters exhibited in the supplementary bundle of documents dated 7th May, 2014. The 4th defendant stated that her late husband was a lawyer  and before  his death was running the firm of RN Mathege & Company  Advocates . She  stated that her husband  in 1979 entered into a sale agreement for the purchase  of portion of 5 acres  out of  land parcel LR  3589/6 ( subdivision ‘C’  as per the scheme ) for the  consideration of Kshs.260,000/=  whereby  he paid a deposit of Kshs.114,000/=  leaving a balance  of Kshs.146,000/= which  was payable on completion. The witness stated the sale agreement dated 29th April 1979 under clause 4 permitted the taking of possession and that  in pursuant thereof  she took possession of the land.

29. The witness stated the agreement dated 29th April 1979 entered into by her husband and the seller rescinded the plaintiff’s earlier agreement entered into with the seller in 1976. The 4th defendant stated that her late husband paid the balance of the purchase price   as per the terms of the further agreement dated 20th February 1991. She stated the further agreement  was supplemental to the agreement of 29th April 1979 and that  under preamble (a) of the further agreement the balance of the purchase  price was acknowledged  by the seller thus:-

(a)  The balance  of purchase  price under the said agreement  namely Kenya shillings one hundred and forty  six thousand ( Kshs.146,000/=) has on or before the execution hereof been fully paid and satisfied  to the vendor  as the vendor doth  hereby acknowledge.

30. The witness explained that her husband died barely after 2 months after he entered into the supplementary agreement on 20th February 1991. She  further  explained  that as her husband had a loan  with consolidated  bank which  she had difficulties  in paying she decided to sell a portion  of one (1) acre of the land purchased by her husband  to 3rd defendant who was her elder  brother. She entered into a sale agreement with her brother dated 5th August 1994 where her brother was to pay her Kshs.950,000/= for the one acre portion. The 3rd defendant paid a deposit of Kshs.800,000/= on execution  of the agreement and    the balance  of Kshs150,000/= was to be paid on completion. The 4th defendant testified that the 3rd defendant was to take possession  immediately and he  in that  regard  applied for water and electricity to be  connected  to the property  with her consent. The witness further stated she in 2001 authorized her lawyers to write to the 3rd defendant authorizing him to construct on the property. The 3rd defendant went ahead and built a house on the land in which he resides.

31. The witness stated the 3rd defendant has 2 houses on the land and that as at the time he constructed the houses there were no other structures on the land. She denied she had anything to do with the eviction of PW2 from the land and stated she was not aware where the photographs exhibited by the plaintiff were taken.

32. Cross  examined by Mrs  Ligunya  advocate  for the plaintiff, the 4th defendant  (DW1)  conceded  that  she obtained  the letters of  administration to her husband’s  estate in 2014 and that in 1994  she did not have any letters of administration to her late husband’s estate. She stated as at 179 her husband was acting as Mr.  Ouko’s (deceased) lawyer. She stated she did not know  why it took so long  to complete  the sale agreement entered into by her husband in 1979. She maintained as the wife of RN Mathenge who had entered the agreement with the vendor she  had ostensible authority  to act on behalf  of her husband even though she had not taken out letters of administration for his estate.

33. The witness further cross-examined by Mr. Muchoki  for the 1st and 2nd defendants stated that she had never resided  on the suit property as she was living in Runda before she migrated to the UK in 1995. She admitted she was not present when her husband and Ouko entered into the agreement of 29th April 1979 and 20th February 1991 though she came to learn of their contents. She maintained the agreement of 20th February 1991 acknowledged payment of the balance of the purchase price. She admitted she never consulted Ouko’s family before selling the one acre to the 3rd defendant.

34. Joseph  Charles Wambugu the 3rd defendant testified  as DW2 and it was his evidence that he purchased  a portion of one (1) acre from the 4th defendant out of the suit  land for Ksh950,000/=  in 1994. He stated he paid the full purchase price   of Kshs.950,000 and took immediate possession as provided in the agreement  and has remained  in possession  since 1994. He has constructed a 2 bedroomed house on the property where he said he lives with his sons and grandson.

35. He stated  he intended  to construct a permanent  house and  as evidence he referred the court to the drawing plans, application for approval  and payment  receipt attached to the 3rd and 4th defendants supplementary  bundle of documents. He stated the plot he bought was connected to water and electricity in 1994 after he paid all the appropriate charges and that he continued to pay bills for the utilities.

36. The witness stated he had fenced his plot with barbed  wires  on posts while the entire 5 acres portion has a keapple fence round with a lockable gate. He said he looked after the entire  portion of 5 acres within which his one (1) acre is incorporated. He said he had authority from the 4th defendant to look after the land. He stated he did not know the plaintiff and the 2 witnesses who testified on his behalf . He maintained that for  the period  he had resided  on the land there had been  no other  person who had resided on the land. He denied the plaintiff and the 2 witnesses who testified as PW2 and PW3 had ever been on the land and/or farmed  thereon. He stated the plaintiff  had no houses and/or any structures on the land that he could have  damaged  or destroyed .He denied   he was a trespasser on the suit land and insisted he was in occupation  as of right.

37. In cross examination the 3rd defendant maintained there had been no demolitions on the suit land in February 2018. He stated the one (1) acre he bought was part of the 5 acres portion. He stated  he bought  the one (1) acre from the 4th defendant in 1994 as the owner. He stated he was not aware whether the agreement  between Mr. Ouko and R N Mathenge had been  completed and/or whether  the 4th defendant  had obtained  letter of administration to her husband’s estate. The witness maintained he took possession of the land in1994. He however stated he was not able to confirm when he built his house on the land in the face of correspondences urging him to take occupation and build on the plot running from 1998 to 2001 from the 4th defendants advocates.

The 1st and 2nd defendant’s case

38. Aaron Tafari Ouko the 2nd defendant testified as DW3 on behalf of himself and the 1st defendant. He adopted his witness statement as part of his evidence.  He affirmed that the plaintiff  and his wife entered into the sale agreement dated 29th September  1976 with their deceased father .The witness however  stated  the plaintiff  failed to  pay  the balance of the purchase price which prompted their later father to rescind  the agreement. He maintained the plaintiff did not pay the balance of the purchase price of the purchase price and in terms of the agreement he was not entitled to possession until completion.

39. The witness stated that the agreement with Raphael Nderitu  Mathenge ( 4th defendant’s husband ) entered into  on 29th April 1979 was after the  agreement  with the plaintiff had been rescinded. As relates to the agreement with R N Mathenge the witness stated the consideration was Kshs.260,000/= and only a deposit of Kshs.114,000/= was paid leaving balance of Kshs.146,000/=. The witness further stated the supplemental agreement  entered into between their  father and R N Mathenge in February  1991  was intended  to cater for the balance of the purchase price whereby R N Mathenge was to provide legal services to their father in lieu of payment of the  balance. He however stated Mr.  Mathenge died shortly thereafter without rendering the anticipated legal services.

40. The witness stated after the death of Mr. R N Mathenge their father engaged another firm of advocates M/s Kagwe & Company advocates to represent him. He stated the family of R N Mathenge never paid the balance of the purchase price after  his death. The witness stated the Ouko  family  was not involved  in the agreement between the 3rd and 4th defendants. In conclusion he asserted that neither the plaintiff nor Mr. Mathenge  and/or his family honoured their agreements to entitle any of them to the orders they seek against  the estate of Jason Ouko in the plaint and the counterclaim  respectively.

41. The witness under cross examination by Mrs  Ligunya  advocate for the plaintiff  affirmed  that  he was  appointed as administrator of  the estate in 2006. Previously he stated one Scott  Ongosi ( now deceased) was the administrator. He stated that it was his understanding that the sale agreement with the plaintiff had been rescinded before their father and Raphael Nderitu Mathenge entered into the agreement dated 29th April 1979 .

42. He admitted there was no letter exhibited that expressly rescinded the agreement with the plaintiff. He further stated that he had no knowledge whether the deposit paid by the plaintiff was ever refunded. The witness further affirmed that having regard to the correspondences exchanged, the plaintiff was actively involved with the Ouko family in the pursuit of the completion documents.

43. The witness further cross examined by Mr.  Thuku advocate for the 3rd and 4th defendants reiterated that Raphael  Nderitu Mathenge had not paid the balance of the purchase.  He stated that although the agreement of February 1991 under clause (a) acknowledged payment of the balance, clause (b) of the same agreement was in conflict as it was obliging Mr. Mathenge to continue rendering legal services which he did not. It was his  view that Mr. Mathenge  was to deliver  future  services which he did not. The witness stated that they never  at  any  time made any demand either  to the plaintiff or the 3rd & 4th defendants to honour their obligations under their respective  agreements.

44. Following the close of the trial the court directed the parties to file their written submissions. All the parties complied and filed their submissions. Upon a review of the pleadings, the evidence adduced by the parties and consideration of the submissions filed by the parties the following issued arise for determination.

(i) Whether the sale agreement dated 28th September 1976 entered into between the plaintiff and Jason Ouko was valid, and if so, whether the sale was rescinded by the vendor?

(ii) Whether the agreement dated 29th April 1979 entered into between one Raphael Nderitu  Mathenge and Jason Ouko Atinda was valid and enforceable?

(iii) Who between the plaintiff and the 3rd and 4th defendants was in possession of the suit property?

(iv) Whether the plaintiffs suit as against the defendant is statute barred under the provisions of the Limitation of Actions Act?

(v) Whether the remedy of specific performance of the agreement of sale dated 28th September 1976 is available to the plaintiff?

(vi) Whether  the estate of Raphael Nderitu  mathenge are entitled to be declared as beneficial owners of the portions of  5 acres subdivision ‘C’  of l.R  No.3589/6 Langata.

(vii) Who should bear the costs of the suit?

45. On  the evidence  adduced there is no contestation  that there was  a sale agreement entered  into on 28th September 1976 between Mr. G.N.R. Mukatha and  Mrs. E.I Mukatha on the one part and Mr. Jason Ouko  ( deceased) on the other part . The agreement was for a portion of 5 acres marked ‘C’  on  subdivision scheme of LR  No.3589/6. A sketch of the subdivision scheme was attached to the agreement and hence the property the subject of the sale was appropriately identified. The purchase price was Kshs130,000/= out of which a deposit of Kshs.26,000/= representing 20% of the total  purchase  price was paid by the purchaser leaving a balance of kshsh.104,000/=  which was to be paid  on completion. The 1st and 2nd defendants who are the administrators of the estate of Jason  Ouko did not deny there was the agreement between their late father and the plaintiff and his wife. The 1st and 2nd defendants’ position was that though there was an agreement, the plaintiff failed to honour  the terms thereof in that the balance of the purchase  price was not paid . The 1st and 2nd defendant contended that the plaintiff‘s sale agreement was rescinded by their late father after the plaintiff failed to perform his part.

46. Upon examination and review of the sale agreement dated 28th September  1976 I am satisfied that it met the threshold  of what amounts to a valid  agreement as envisaged  under section 3(3)  of the Law of  Contract Act, Cap 21 Laws of Kenya  which before the 2003 amendment was in the following  terms:-

3(3) No suit shall be brought upon a contract for disposition  of an interest in land unless the agreement upon which the suit is founded, or some memorandum or note thereof, is in writing  and is signed by the party to be charged or by some person authorized by him to sign it.

47. In the instant matter the land   the subject of the sale was aptly described, the consideration was set out amongst other terms. The agreement was signed by the purchasers and was  signed  by the vendor  and/or  by his duly authorized agents. The agreement was thus a valid and enforceable  agreement.

48. Having determined that the plaintiff and the 1st and 2nd defendants deceased father had entered into a valid and enforceable sale agreement, I now turn to consider  whether  the agreement was rescinded  and/or  cancelled as alleged by the 1st and 2nd defendants. The plaintiff contended that the agreement for sale was never at any time rescinded and that he was never given any notice of any intention to rescind the agreement. The plaintiff in his evidence asserted there was delay in the completion of the agreement but the delay was attributable to the vendor’s inability to avail the documents necessary to complete the transaction. The plaintiff maintained there were active efforts being made by the vendor with the active participation of the purchasers to find a solution but the vendor died before such a solution was found.

49. The 1st and 2nd defendants together with the 3rd and 4th defendants pointed to the sale agreement dated 29th April  1979 between one Raphael Nderitu Mathenge ( deceased  husband to 4th defendant) and Jason Atinda  Ouko ( deceased)father of the 1st and 2nd defendants  to buttress their contention that the agreement  with the plaintiff  was rescinded. The plaintiff however countered  that he was not aware  that the vendor  had entered into any agreement  with the 4th defendant’s deceased  husband and was not made party  to the agreement. To the contrary, the plaintiff stated that the vendor Jason Ouko, conducted himself  in a manner  that suggested he recognized  the agreement with the plaintiff was alive as exemplified in the various correspondences exchanged with the lawyers  representing the vendor and in the attempts made through  meetings conveyed  at the instant of the vendor to seek a solution to the delays that had prevented the sale transactions(s) with the various purchasers from being completed.

50. Rescission  is the act where a contract  is cancelled, annulled, or abrogated by the parties, or  one of them. Rescission  may be consensual or by way of notice   usually  to the defaulting  party by the other party  to the contract. Halsbury’s Laws of England  4th  Edition volume  42 at paragraph  242 provides as follows as relates to rescission:

“ If the contract  contains a condition entailing the vendor  to rescind  on the happening  of certain events and those vents happen,  the vendor  may rescind. In the absence of such a condition the vendor may rescind only if the purchaser’s  conduct is such as to amount to a repudiation of the contract and the parties can be restored  to their former positions..”

51. The plaintiff has submitted that he did not consent to any rescission  of the agreement and that there was  no formal notice  of any alleged rescission given to him by the vendor . The plaintiff  contended the purported rescission exercised by the vendor  by entering a separate  agreement  between  himself (the vendor) and a third  party was ineffectual  as the plaintiff was not privy or party to that contract. The plaintiff further submitted that in order for rescission to take effect, notice of rescission ought to have been formally given to him  and placed reliance on sections 39  and 41 of the Land Act, 2012. Section 39 of the Act is in the following  terms:-

39. If,  under the contract for a sale  of land, the purchaser has entered into possession  of the land, the vendor may exercise, his  or her contractual right to rescind the contract by reason of a breach  of the contract by the purchaser by:-

(a)  resuming possession of the land peaceably;  or

(b)  obtaining  an order for possession of the land form the court in accordance with the provisions of section 41.

52. In the Court of Appeal  case of Njamunyu –vs-Nyaga (1983) KLR 282 cited with  approval in the case of Elijah Kipkorir Barmalel & another –vs- John  Kiplagat  Chemweno & 3  others ( 2010) eKLR the court  considered when rescission may be applicable  and inter alia stated :-

“7. Where  completion  does not take place as  intended by the parties  ( in this case after the consent was obtained), the option open to the concerned party  is to give  notice to the party in default therefore  making time of the essence . Where  there is no express agreement  or notice  making  time of the essence the court  will require  precise compliance with  stipulations as to time whenever  the circumstances of the case  allow .

8. Before an agreement  such as this can be rescinded  the  party in default  should be notified  of the default  and given reasonable  time  within which to  rectify it. Once   notice of default has been given failure to rectify will result in rescission of the contract”.

53. In the case of Elijah Kipkorir Barmalel & Another – Vs-  john Kiplagat  Chemireno & 3 others ( supra)  the court of Appeal on the issue of rescission stated :-

“25. We have carefully considered the evidence on record, the findings of the superior court and the submissions of counsel  and we think  the superior  court cannot be faulted   in its conclusions  on the issue of rescission.

As stated by this court  on the Njamunyu case,  although  the parties  to a sale agreement  upon which  consent has been obtained may choose  to terminate  it, in the absence  of an express agreement on time being of the essence, notice must be served  on the defaulting party before any assertion can be made that  time was of the essence .In this  case  there was an express  provision  ( clause  8(2)  as to when time would become  of the essence  but  the clause  was never invoked  by the vendor . It was not the vendor’s case in  the superior  court  either  in his pleadings  or evidence , that the refusal  to accept  the balance  of the purchase  price made time of essence. There was no counterclaim for rescission either. His case was rather that he had served notice in 1980 which was not complied with and therefore he was not  obliged to accept  the balance  of the purchase  price. As correctly held by the superior court the notice was a nullity and therefore of no consequence to the agreement between the parties. We would for those reasons agree with Mr. Machiro that there was no valid rescission of the sale agreement.

54. In the instant suit there was no evidence adduced that the plaintiff was infact served with a notice to rescind the agreement for any reason. In the letter dated  19th July 1979 exhibited at page 25 of the trial bundle the vendor   through his advocates made an offer  to refund the deposit  of Kshs26,000/=  which  the plaintiff did not accept. The letter  from the vendor’s advocates dated 10th October  1994, 2nd September 1994, 4th March 1995 and 4th November  1995 exhibited at page 28, 29, 30 and 31 of trial bundle  respectively illustrate that the vendor was treating the agreement with the plaintiff as being alive. The correspondence clearly   shows the vendor was intent on having the sale transaction completed. The letter of 4th   November 1995 indeed was inviting the plaintiff to a meeting at which issues that were occasioning the delay in completion were to be discussed. On the  evaluation  of the evidence  it is my finding   that the agreement  the plaintiff  had  entered into with Jason Ouko  (deceased)  was not  lawfully  rescinded  by the vendor.

Validity of the sale agreement dated 29th April 1979.

55. The plaintiff has contended that the agreement entered into by the vendor,  Jason Atinda Okuko ( deceased) on one part and Raphael Nderitu  Mathenge (also deceased) husband  to the 4th defendant on 29th April 1979 was invalid as his( plaintiff’s)  agreement  over the same parcel  of land in respect of which the agreement related to was still  valid  and  in force. The 4th defendant took the position that the plaintiff’s agreement had been rescinded which paved the way for her husband to enter into the agreement. The 4th defendant placed reliance on the agreement of 29th April 1979 where under recital ( c )  and (d)  the agreement  provided  thus :-

( c)  The vendor  had earlier  contracted to sell  the plot to Mr. & Mrs  Mukatha but has now revoked  and rescinded  the said agreement.

(d)  The vendor may be liable to any amount of special  and general damages as a consequence of revoking  and rescinding the contract aforesaid.

56. As discussed above there was no notification of rescission of the sale agreement to the plaintiff and therefore the agreement had not been revoked and/or rescinded as  stated in the agreement of 29th April 1979. As pointed out the conduct of the parties (Jason Ouko and the plaintiff) as illustrated by the correspondences referred to at pages 28-31 of the trial bundle indicated the parties acknowledged the existence of the agreement and were seeking ways and means of having the same completed. It is not lost to the court that Raphael  Nderitu Mathenge  (Deceased)  was himself  a lawyer  and while in his agreement with the vendor he acknowledged the earlier  agreement the plaintiff had entered into with the vendor,  no evidence was adduced to support the revocation  and/or rescission of the plaintiff’s agreement. Having held that the plaintiff’s agreement with the vendor had not been lawfully rescinded, it follows that the vendor could not validly have entered  into an agreement of  sale  relating  to the same parcel of Land  that was the subject of the earlier  agreement. The said Raphael Nderitu Mathenge (deceased) had notice of the agreement the plaintiff had with the vendor and he either failed to do appropriate due diligence to ascertain the status of the agreement or did not care. Had he done due diligence he would have discovered the agreement was still in force. He did not and the result was that he entered into an agreement that was invalid as there was in existence a valid agreement over the same subject property. The agreement dated 29th April 1979 was null and voidabinitio. If the agreement of 29th April 1979 was null and void as I have found, it follows that the supplementary agreement entered into in February 1991 between Jason Atinda Ouko and Raphael Nderitu Mathenge equally could not be valid.

57. The 3rd defendant in turn claimed he purchased a portion of one (1) acre from the 4th defendant, the widow of Raphael  Nderitu  Mathenge. The 4th defendant claimed she was acting as administrator of her late husband’s estate. The plaintiff has submitted the 4th defendant lacked any capacity to represent her deceased husband as she had not taken out letters of administration in 1994 when the agreement with the 3rd defendant was entered into. I agree  with the  plaintiff’s  submission  that indeed the 4th defendant  had no capacity  to enter  into the sale agreement with the 3rd defendant. She lacked  any locus to represent the estate of Raphael Nderitu  Mathenge. Thus, even  if the late Raphael  Nderitu  Mathenge had entered  into  valid sale agreement with the vendor,  after his death, the 4th defendant could not enforce that  agreement and/or deal with the property the subject  of agreement without  obtaining  a grant  of letters of administration to the deceased estate.

58. Section 82 of the Law of Succession Act, Cap 160 Laws of Kenya makes it clear that it is only a duly appointed personal legal representative of a deceased estate has power and /or authority to represent the estate of a deceased person and/or deal with the assets of such estate. Section 82(a) and (b) of the Law of Succession Act provides thus:-

82. Personal representative shall subject only to any limitation imposed by their grant,  have the following

powers:-

(a) to enforce, by suit or otherwise, all causes of action which, by virtue of any law, survive the deceased or arising out of his death for his personal representative;

(b) to sell or otherwise turn to account, so far as seems necessary or desirable in the execution of their duties, all or any part of the assets vested in them, as they think best:

Provided that—

(i) any purchase by them of any such assets shall be voidable at the instance of any other person interested in the asset so purchased; and

(ii) no immovable property shall be sold before confirmation of the grant;

59. Section 80 (2) of the Act is clear that a grant of letters of administration takes effect only from the date of such grant. In the instant matter the 4th defendant obtained a grant of letters  of administration to her late husband’s estate in 2014 and therefore could not have had any authority  to deal with the assets of the deceased estate in 1994 when she purported  to enter into  an agreement for sale of a portion of one(1) acre out of the suit  premises. The agreement was illegal and could not pass any proprietary interest.

Possession of the Suit Property

60. The plaintiff on one part and the 3rd and 4th defendants on the other part have each claimed to have been in occupation of the suit property to the exclusion of the other. The plaintiff has claimed to have been in occupation of the suit premises from 1976 to 2018, when he claimed he was forcibly evicted by persons he believed were agents of the 3rd and 4th defendants. The 3rd and 4th defendants for their part claimed to have exclusively occupied the suit land from 1979 as per the 4th defendant. It was their  evidence  that the plaintiff never occupied the suit property at any time at all.

61. On the evidence adduced  by the parties  it is apparent  that the plaintiff had occupied  and taken possession of the suit  land as is evidenced by the various correspondences exchanged between the plaintiff’s advocates, the vendor’s advocates and the 4th defendant’s  advocates between 1994 and 2001 exhibited in the trial  bundle. The evidence points to the plaintiff having been in possession except that in 2001 there was intrusion by the 3rd defendant who occupied   a portion of the land (perhaps limited to the portion of one  acre) that  he stated he bought  from the 4th defendant. The 3rd defendant constructed some structures on this portion which stand todate. The plaintiff as per the evidence protested the invasion by the 3rd defendant but it appears the situation remained with the 3rd defendant occupying a small portion of the land and the plaintiff the rest of the land until February  2018 when the plaintiff’s  agents were forcibly evicted and their structures on the land demolished . There was no clear evidence as to who carried out the demolitions though the plaintiff pointed fingers at the 3rd and 4th defendants. My view is there was no proof that the 3rd and 4th defendants were responsible for the eviction and demolitions. However on the issue of occupation and possession it is my determination that the plaintiff was in occupation and possession of the land from 1976 to 2018 save that the 3rd defendant from 2001 occupied a small portion of the land where he ( 3rd defendant) built his structures. The 4th defendant did not personally occupy and/or possess the suit land and/or any portion of the same.

Whether the suit  is statute barred by limitation

62. The 1st and 2nd defendants by their defence pleaded that the plaintiffs suit against them was statute barred by reason of limitation. In their submissions they have contended both the plaintiff’s suit and the 3rd and 4th defendants counterclaim were statute barred under the provisions of section 4 (1) (a) and section  7 of the Limitation of Actions Act, Cap 22 of the Laws of Kenya. The Court acknowledges that the issue of limitation goes to the jurisdiction of the court to entertain the action and that it can be raised at any point including at the submissions stage. The rationale is that the issue being one touching on the jurisdiction of the court the court should, at whatever stage of the proceedings when the issues is taken consider and determine  it. If the court lacks jurisdiction whatever decision it makes is futile and is liable to be voided. A decision made by a court without jurisdiction is null and void and of no legal effect.

63. It is the 1st and 2nd defendants submission that the sale agreements relied  upon by the plaintiff  and the 3rd and 4th defendants were entered into well over six years before the institution of the suit and therefore could not be enforced  under the provisions  of section 4 (1) (a) of the Limitation of Actions Act. The 1st and 2nd  defendants contend the causes of action giving rise to the suit arose well over six years before the suit was instituted and consequently the suit was brought outside the period of limitation and no leave to bring the action out of time was obtained.

Section 4 (1) (a) of the Limitation of Actions Act 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 accrued.

(a) Action founded on contract .

64. In the case of Gathoni -Vs - Kenya Co-operative Creameries Ltd (1982) KLR 104Potter JA stated the rationale of the law of limitation thus :-

“ The law of limitation of  actions is intended to protect defendants against unreasonable  delay in bringing  of suits against them. The statute expects the intending plaintiff to exercise reasonable diligence and to take reasonable steps in his owninterest”

65. In the case of Joas components’ Co Ltd -vs- The County Government  of Homa Bay (2017) eKLRcited  by the 1st and 2nd defendants in support of their submission Omondi, J in considering  the application of Section 4(1)  (a) of the Limitation of Actions Act, cited with approval the case of Richard Toroitich  -vs- mike K Lelmet & 3 others(2014) eKLR where the court made reference to the case of Director Ltd  -vs- Samani (1995-1998) 1EAwhere the court stated as follows: -

No one shall have the right or power to bring an action after the end of six years from the date on which a cause of action accrued on the action founded on contract. The corollary to this is that no court may or shall have the right or power to entertain  what cannot  be done  namely an action that is based on contract six years after  the cause of action  arose or any application to extend such time for bringing of the action based on contract”

66. In the case of Rawal –vs- Rawal (1990) KLR 275 the court stated thus:-

“ the object of any limitation enactment is to prevent  a plaintiff from prosecuting stale claims on the one land, and on the other hand protect  a defendant after he has lost his evidence  for his defence from being  disturbed  after a long  lapse of time. It is not to extinguish claims”

67. The net effect of the statute of limitation is that it bars the bringing of various causes of action after the expiry of particular periods of time. The fact that a cause of action may be barred from being brought by reason of expiry of the period within which it could have been brought does not mean the cause of action is extinguished. It is only that such cause of action cannot be enforced by way of litigation.

68. In the  present matter the plaintiff  entered into a sale agreement on 28th  September  1976 where he paid a deposit  of Kshs26,000/= while the balance  of Kshs.104,000/= was to be deposited with vendor’s  advocates before the completion  date. The completion date for the transaction  was to be within  four months of the date of execution of the agreement  ( on or before  the end of January 1977) as per the plaintiff’s advocates letter to the vendor dated 26th August  1977 exhibited at page  19 of  the trial bundle. The exhibited sale agreement paragraph 7 providing for completion is not legible but it was not disputed completion was to be within four months of execution of the agreement.

69. It is common ground that the agreement was not completed and neither did the plaintiff pay the balance of the purchase price as provided. In the letter of 26th August 1977 the plaintiff was concerned about the delay in the completion of the  agreement  which prompted him to give the vendor notice of 14 days to make available  the completion documents failing which he threatened to sue for specific  performance among other remedies.

70. The plaintiff’s advocate further letter of 18th January 1979 to the vendor’s advocates acknowledged default had occurred on the part of the vendor for failing to avail the completion documents. The plaintiff again intimated he would institute an action in court for specific performance and other remedies against the vendor. The vendor vide the letter dated 19th July 1979 offered to refund  the deposit of Kshs.26,000/= paid by the plaintiff in full. This was an intimation by the vendor that he did not intend to  honour  the terms of the agreement. The plaintiff’s advocates responded  to the vendor’s advocates letter on 3rd September 1979 and sought confirmation that the vendor  would transfer the plot within  7 days failing which a suit for specific performance of the agreement and for damages would be instituted.

71. After the plaintiff’s advocates letter of 3rd September 1979 there was a lull  as the next  activity was from  1994 when the firm of Kagwe  & Company advocates came on record for the Vendor. It does appear the firm of Kagwe and Company advocates was dealing  with all purchases generally and not specifically with the contract  of sale  between the  plaintiff and the vendor as is evident from the firms letter dated 2nd September 1994 addressed to the plaintiff.

72. In my view having regard to the evidence, the plaintiff’s cause of action on the sale agreement firstly arose when the contract ought to have been completed by 28th January 1977 and it was not.  Further when the Vendor  offered  to make  a refund of the deposit  paid  on 26th July 1979, that was an indication  he did  not intend  to proceed with the transaction. This would constitute a fresh cause of action within the agreement for sale. In both instances the plaintiff’s advocates acknowledged a cause of action had arisen and properly gave notice of intention to sue.

73. The plaintiff did not initiate any action within six years within either of the causes of actions. The present suit was filed on 16th January 2009 well over 28 years after the cause of action accrued.

74. The plaintiff on the other hand in 1998 discovered the plot he bought had been sold to someone else and according to him the 3rd defendant forcibly invaded the land in 2001. Even assuming these acts constituted fresh causes of action predicated on the sale agreements, still the institution of the suit would clearly be outside the limitation period of six years. In the premises  it is my determination  that the plaintiff’s suit against  the defendants  is statute barred on account of the Limitation of Actions Act pursuant to section 4 (1) (a).

The 3rd and 4th defendants counterclaim.

75. The 3rd and 4th defendants counter claim was predicated on the sale agreements made on 29th April 1979, 20th February 1991 and 5th August 1994. By the agreement  dated 29th April 1979 entered into between the deceased  4th  defendant’s husband and Mr. Jason Atinda Ouko, the buyer was to pay the sum of Kshs.260,000/= as the consideration and paid a deposit of Kshs114,000/= leaving a balance of Kshs.146,000/=  which was to be paid on the date of completion. For unexplained reasons the transaction was not  completed and neither was the balance of the purchase price paid until the parties entered into a supplemental agreement dated 20th February 1991. The latter agreement made provisions respecting the payment of the balance. While the preambular part  (a) of the  agreement of  20th February, 1991 indicated  the balance of Kshs146,000/=  had been paid in full, the principle part of the agreement and  a letter issued on the same date by the 4th defendant’s husband who drafted the agreement gave the impression that the balance of Kshs146,000/= was to be defrayed from legal services the late Mr. R N Mathenge was to render  to the vendor, Jason Atinda Ouko.

the preambular part (a) of the agreement provided as follows: -

(a)  The  balance of purchase price under the said agreement namely Kenya shillings one hundred forty – six thousand( Kshs.146,000/=  has on or before the execution  hereof been fully paid and satisfied to the vendor  as the vendor doth  hereby acknowledge.

76. The body of the agreement stated as follows :-

NOW THIS AGREEMENT WITNESSETH  that  in consideration of the premises the vendor acknowledges as herein  before stated and undertakes to proceed with the transfer  of the said plot to the purchaser  in accordance  either the terms of the said agreement  AND the purchaser  for himself  and  his legal firm hereby agrees to do and continue   to render  professional services to the vendor generally and attend to the several matters relating  to the subdivision   of the vendors land LR No.3589/6 Langata  until completion and the purchaser  will henceforth  charge to the vendor only one  half the fees chargeable under the appropriate parts of the advocates Remunerations order .

77. In the letter  by R N Mathenge  & co. Advocates on the same day of the supplemental agreement  paragraphs 1 and 2 stated as follows:-

Following  our meeting today  and with reference to our agreement of the same date, I confirm  that I will not raise any fees against you for  the transfer  of all the plots on LR No.3589/6 Langat.

You my  now treat our agreement  as amended in so far  as it state that  half the scale fees chargeable are for your account .

78. Clearly having regard to the preambular provision and the body of the agreement there is evident ambiguity and/or contradiction. On one land the agreement acknowledges full payment of the balance in kind by way of provision of legal services while on the other part the advocate states he would forego half of the legal fees.  The vendor must have raised issues and the advocates vide a letter of the same date clarified he would infact not charge the vendor any fees for the subdivision and transfers  that would arise  in regard to LR No.3589/6. Those  fees and charges were for future legal services and it is against the delivery  of those services the balance ofKshs146,000/= was to be deemed paid. I consider this an appropriate case where  the “contra proferentem”  rule would be held to be applicable such  that the ambiguity in the  contract is interpreted  against the party who drafted the contract. See the case of Ian Edwards –vs- bytes Techonology  Group Kenya Ltd (2018) eKLRandUnited MillersLtd-vs- Nairobi Java house Ltd (2019) eKLR

79. Mr  R.N Mathenge died barely 2 months after entering  into the sale agreement  dated 20th February 1991 on 12th April 1991 and after his death another law firm was engaged by Jason Atinda Ouko to deal with matters relating  to LR No.3589/6. In the premises the consideration Mr. R N Mathenge was to offer for the payment of the balance of Kshs.146,000/= failed to crystalize and it is my determination that there was no proof that the balance of the purchase price was paid by Mr. R N Mathenge before his death or by his estate. The evidence adduced does not show that  the estate of R N Mathenge engaged with Jason Ouko at all before  he himself  died on 1996 or later with his estate before  the institution of this suit.

80. Be it as it may be, after the death of Mr. R N Mathenge  on 12th April 1991, his estate did not follow up the performance of the contract and no action was taken to enforce  the contract by his personal administrators for six years following his death.  It is my view no action would be maintainable against the estate of Jason Ouko by the 3rd and 4th defendant’s on the basis  of the agreements dated 29th April  1979 and 20th February 1991. The 3rd and 4th defendants counterclaim dated 21st February  2011 and subsequently  amended on 2015 was barred by limitation and was  not sustainable.

81. Having  determined  that both the plaintiff’s  suit and the 3rd and 4th defendants counter claim were statute barred on account of the Limitation of Actions Act, Cap 22 Laws of Kenya that should be sufficient  to dispose of the entire suit. The court is without the jurisdiction to entertain the suit as jurisdiction is taken away by the statute .However, as  the issue of limitation  was not taken as a preliminary issue  I will consider the merits of the plea for specific performance urged both by the plaintiff and the 3rd and 4th defendants in their counter claim.

Specific performance

82. Both the plaintiff and the 3rd and 4th defendants have sought specific performance of the respective contracts in the plaint and the counterclaim respectively. For a party to be entitled to an order of specific performance of a contract, such party must demonstrate and /or prove that they had performed  all the terms of  the contract either expressly and /or impliedly as at the time of the institution of an action and that the opposite party had no reason not to perform their part of the bargain. Indeed specific performance is an equitable remedy and thus a party approaching the court for such remedy  must come to court  with clean hands. Gicheru, J.A ( as he then was) in the case of Gurden Singh Birdi & Narinder Singh Ghatora as Trustees of Ramgharia  Institute of Mombasa –vs- Abubaka Madhubuti (1997) eKLR in considering in what instances specific performance, may be ordered  expressed himself as follows:-

“ It cannot be gainsaid that the underlying principles in granting the equitable  relief  of specific performance has always been that under all the obtaining  circumstances in the particular case, it is just and equitable so 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 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 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 important 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”

83. In the same case Gicheru, JA went on to state as follows”-

“ when the appellant came to court seeking  the relief of specific performance of their agreement they had not performed their one essential part of

the agreement . Namely; payment of the balance of the purchase price of the suit property. Indeed, right up to the conclusion of the proceedings in the superior court, they had not done so. In those circumstances no court of equity properly directing its mind to the same would have considered it just and equitable to grant them the equitable relief of specific performance of the agreement with a view  to doing more  perfect and complete justice”

84. In the present suit, the agreement dated 28th September 1976 which the plaintiff seeks specific performance of provided for a completion date within four months. The plaintiff at the execution of the agreement paid a deposit of Kshs26,000/= and was required  to deposit  the balance of kshs.104,000/=  with the vendor’s Advocates M/s Daly & Figgis advocates  before the completion date. It is evident that the plaintiff admitted during the trial that he had not paid the balance to date.

85. Payment of the balance of the purchase price in my view was an essential condition of the agreement which the plaintiff ought to have fulfilled before he could approach the court for the equitable remedy of specific performance. Although the plaintiff contended the vendor had not availed the completion documents, and that was the reason he had not paid the balance that was no reason for him not to tender the balance of the purchase price as the agreement provided. The plaintiff could not insist that the vendor performs his obligations yet he had not on his part performed his obligations under the agreement. In those circumstances the remedy of specific performance would not be available to the plaintiff.

86. As regard the 3rd and 4th defendants, in as much as I held the sale agreement of 29th April 1979 to have been void in the face of the Vendor’s agreement with the plaintiff, even if the agreement had been valid, the remedy of specific performance would be unavailable to the 3rd and 4th defendants. I have earlier in this judgment held that the 4th defendant’s husband had not paid the balance of the purchase price by the time he died on 12th April 1991. That was an essential condition of the agreement and without the same having been fulfilled the 4th defendant cannot be entitled to an order of specific performance.

87. From the discussion and analysis  of the various  issues the Court had identified, it is evident that neither the plaintiff nor the 3rd and 4th defendants is  entitled to be declared as the owner of the suit property. The plaintiff has not on a balance of probabilities proved his case and neither have the 3rd and 4th defendants proved their cases to the required standard. I accordingly order the plaintiffs suit dismissed. The 3rd and 4th defendants counter claims is equally dismissed.

88. On the question of costs I have taken account of the attendant circumstances in this matter. It is evident the parties have been dilatory in pursuing their rights and all have been guilty of laches. The laxity of the parties must have contributed to the prolonged and convoluted litigation. In the premises and in the exercise of my discretion order that each party bears their own costs of the suit and the counterclaim.

89. Orders accordingly.

Judgment dated signed and delivered electronically (virtually) at Nakuru this 7th day of July 2020.

J M MUTUNGI

JUDGE