Joseph Atsiaya Omutamba v Moli Wafula Marere [2015] KEHC 4971 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

ELC. NO. 7 OF 2014.

JOSEPH ATSIAYA OMUTAMBA………………………………….PLAINTIFF

=VERSUS=

MOLI WAFULA MARERE……………………………………..DEFENDANT

J U D G M E N T.

1. INTRODUCTION.

JOSEPH  ATSIAYA OMUTAMBA  filed  this case against  MOLI WAFULA  MARERE, through  the plaint dated 28th January, 2014. He claims  to have bought a portion of land  measuring 50 feet by 200 feet out of South Teso/Angoromo/7728 from the Defendant for Kshs.20,000/= which has since been subdivided  into parcels South Teso/Angoromo/8167 and 8168. The Plaintiff prays  for the two new titles to be cancelled  to enable  the Defendant  transfer  the portion he bought to him.  He also prays for costs.

The Defendant  Moli Wafula Marere filed his statement  of defence  which is undated on the 22nd May, 2014 denying the Plaintiff’s  claim. He further  averred that the Plaintiff’s  claim was time barred, res judicata and an abuse of  the courts process.

2.    ISSUES FOR DETERMINATION.

Whether  the Plaintiff and Defendant had a valid  land sale agreement.

Whether the Plaintiff has complied with the terms  of the sale agreement.

Whether  the Defendant  had placed  the Plaintiff in possession of the land subject matter of this suit.

Whether  the Plaintiff is  entitled to orders of specific performance,

Who pays costs.

3.    ANALYSIS OF EVIDENCE  PRESENTED.

The Plaintiff  testified  as PW 1 and called  Saferio Osigwar and Jacob Efusi, who testified as PW 2 and PW 3 respectively. The  Defendant testified  as DW1. The testimonies  of both parties  clearly  show that on or about  1994,  they entered into an agreement under which Defendant agreed  to sell to the Plaintiff a plot of 100 feet  by 50 feet,  out of Defendant’s  land parcel.  The Plaintiff had annexed to the plaint his list of documents,  dated 28th January, 2014 which included what he described as a agreements dated 5th December, 1994, 7th June, 1995, 10th July, 1996, 2nd November, 1995, 14th August, 1998, 2nd  October, 1996 and 2nd  January, 2009. The Defendant  did not dispute  the existence of the sale agreement  or contents of the said  documents but said he sold the land to another  person after the Plaintiff took too long to clear the balance of the purchase price.  The parties  evidence  therefore  shows there was a valid sale agreement  between  the Plaintiff  and Defendant  consisting partly of the various written acknowledgements of payments.

The court has carefully  perused the documents  described  as agreements  and even though they do not specify  the land parcel from which Defendant was  to sell to  the Plaintiff  a plot measuring  50 feet by 100 feet,  it is clear they contain acknowledgement of the monies paid by the Plaintiff to the Defendant pursuant to their agreement for sale of land. The totality of the said documents is that they contain the terms of the agreement.  The land from which the Plaintiff  was to get his portion as described  by the Plaintiff has not been disputed by the Defendant and the court will take it to be  parcel Sought Teso/Angoromo/7728 which was registered  in the names of the Defendant until 5th May, 2011 when the  title was closed  on subdivision to parcels 8167 and 8168. This information  is available on the copies of certificates of official searches for parcels South Teso/Angoromo/7728, 8167 and 8168 in the Plaintiffs list of documents. That the certificate of official search for parcel South Teso/Angoromo/8167 shows it is still registered in the Defendants names while  that of  parcel  South Teso/Angoromo/8168 shows it was registered in the names of Jane Obali on 26th  June, 2012 and title deed issued on 27th June, 2013.

The available  evidence  also shows that the Plaintiff  had taken possession of the plot he had bought from the Defendant with the permission of the Defendant as he continued making the payments  in instalments.   However  when Plaintiff went to pay  the last payment in 2013,  the Defendant  declined  to accept and ordered Plaintiff to vacate from the portion he had taken in possession. The Defendant has offered to refund  the money he had received.

This suit  was filed in 2014 which is about one year after Defendant asked Plaintiff  to vacate from the land.  It is also about five years from 22nd January, 2009 when the Defendant received the payment of Kshs.2,100/= and an acknowledgement  of the same date  made. This suit is therefore not time barred as the six years  had not passed from the date of the last portion of the agreement dated 22nd January, 2009 to 16th April,  2014 when this suit was filed (Refer  to section 4 (1)  (a)  of the Limitation of Actions Act)

Though  the Defendant had in his statement of defence  averred that the suit was res judicata and an abuse of the court’s  process, no  evidence  was adduced to prove those allegations.

The evidence  availed shows that the Defendant  and Plaintiff  had agreed that the purchase price was to be paid in instalments. The Plaintiff has shown  that he had been ready and willing to pay  the last instalment in the year 2013 but the Defendant declined to accept it. The efforts of the Plaintiff to seek  an out of court settlement also failed.  The Defendant has indicated that he is not ready to accept the balance of the purchase.  The Defendant offers to make a refund of the monies paid.  The court notes that the Defendant  never took steps to obtain the Land Control Board consents to facilitate the completion  of his agreement with Plaintiff whom he  had placed in possession  of the land.

4.   FINDING.

The court  has taken note  that the sale agreement  was made in 1994 which  is about ten (10) years before this suit was filed. The agreed purchase price was Kshs.20,000/= and if the court was to allow Defendant’s request  to refund the purchase price, the  Plaintiff would stand prejudiced as prices of land have changed upwards. Such  an order would instead benefit  the Defendant who must have received  much more for the portion he subdivided from South Teso/Angoromo/7728 and sold to Jane Obali.

This  being a court of equity, the court is of the considered  view  that the Plaintiff has established his case against the Defendant  to entitle  him to a plot measuring  50 feet and 100 feet  out of the parcel South  Teso/Angoromo/8167, still remaining  in the Defendant’s names. The following orders are therefore issued;

That the  Defendant  do transfer  to the Plaintiff  a plot measuring  50 feet by 100 feet  out of Land parcel South Teso/Angoromo/8167, upon  the Plaintiff  paying the outstanding  balance of Kshs.4,100/= within  the next 30 days.

That should the Defendant  decline to receive the said balance, the  same be deposited with the court for transmission to the Defendant.

That should  the Defendant  decline to sign the documents  necessary   to give  effect  to (i) above, the Deputy Registrar  to sign all such documents.

The Defendant  to meet the Plaintiff’s  costs of this suit.

It is so ordered.

S.M. KIBUNJA,

JUDGE.

DATED AND DELIVERED ON 13TH DAY OF MAY, 2015.

IN THE PRESENCE OF ;

PLAINTIFF …………………………………………PRESENT.

DEFENDANT………………………………………..PRESENT.

JUDGE.