P M & another v F O G & another [2015] KEHC 3931 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

ELC. NO. 62 OF 2013.

P M ……………………………………………………….1ST PLAINTIFF

M N J……………………….……..………………………2ND PLAINTIFF

-VERSUS-

F O G…………………………….……………………..1ST DEFENDANT

M E N……………………………..……………………2ND DEFENDANT.

J U D G M E N T.

INTRODUCTION;

1.  P M and M N J, hereinafter referred to as 1st and 2nd Plaintiffs respectively, sued F  O G  and M  E N, hereinafter referred to as 1st  and 2nd Defendants through the plaint    dated 29th  July, 2013 for the following orders;-

‘’ 1. Declartion that the 1st Plaintiff  constitutional  rights under article 27  (3) , 40 (2)  (b), 44 and 45  (3) of the constitution has been violated and or  threatened with violation.

2. A declaration that land Parcel No. [particulars withheld]  as currently   registered in the names of M N E is subject to spousal   rights as it provided  for under section 28  of the Land Registration Act   No. 3 of 2012.

3. An order to evict the 1st defendant and or his agents, assignees from  land Parcel No. [particulars withheld]  .

4. A permanent injunction to restrain the 1st Defendant from returning into  land Parcel No. [particulars withheld]

5. An order  for Compensation for loss of user, damage caused  to the suit  property.

6.  An order for Compensation for sentimental  attachment value attached to property destroyed.

7.  Costs and interest.’’

2. The Plaintiffs avers that the Defendants entered into a land sale transaction involving land parcel [particulars withheld] which was Matrimonial property for the  1st Plaintiff  and 2nd Defendant without  the Plaintiffs consent.  They further stated  that the 1st Defendant took possession of the suit land dispossessing the     Plaintiffs and hence  this suit.

3.  The 1st Defendant  filed  a defence  and Counterclaim  dated  12th August, 2013 against  Plaintiffs  and 2nd Defendant for Kshs.1500,000/=, being  the refund  of   purchase price paid of Kshs.1300,000/= and Kshs.200,000/= for fencing the suit land. He  also prays for damages and costs.

4.  The 2nd Defendant  filed a statement of defence  dated 31st  July, 2013 accepting that he had entered into  a land sale agreement with the 1st Defendant  over the suit  land but added that the 1st Defendant  had breached  the agreement    rendering it   null and void.  He later filed a statement of admission  dated 23rd  January, 2015 to   the Plaintiffs  claim and 1st Defendant  counterclaim of Kshs.1300,000/=

5. The Plaintiffs filed  a reply to the Defence  filed by both Defendants. They also  filed a defence to the 1st Defendant’s Counterclaim through their reply  dated  26th August, 2013 stating that they were not party to the agreement and cannot be held liable to the 1st Defendants loss.

6.  ISSUES FOR DETERMINTION.

Whether there exist a valid land sale agreement over the suit land and if so who the parties are.

Whether the said sale agreement was subject to spousal consent and if so whether the spousal consent  was obtained.

Whether the  Land Board consent to the sale agreement was obtained and if not,  which party is to blame.

Whether specific performance orders should be issued and if so, in whose favour.

Whether the 1st Defendant is entitled  to the orders  sort in the counterclaim, and if so against which party or parties.

What order should be issued in favour of the Plaintiffs, if any .

7.  ANALYSIS  OF THE  EVIDENCE.

The Plaintiffs testified as PW 1 and PW 2  respectively. Their evidence  is that about  July, 2013, PW 2 was posted to [particulars withheld]  hospital and wanted to operate from their home which is on the suit land.  He however  found the home had been occupied by agents of the 1st Defendant .  PW 1  contacted  the 1st Defendant for an explanation  and it was then she  learnt that  her husband, who is the 2nd Defendant , had  sold  the suit land  to the 1st Defendant. The Plaintiffs then instructed an advocate to file this suit. The Plaintiffs indicated that they had not been consulted about the suit  land’s  sale by 2nd Defendant.  The Plaintiffs  further testified that the Land Control Board  consent  has not  been obtained and the land is yet to be transferred to the 1st Defendant. They further said that the 2nd Defendant  should refund  the money he had received  from the 1st Defendant  in accordance with the admission he filed  dated 23rd January, 2015 and that  the 1st Defendant  should vacate from the suit land.

The 1st Defendant  testified  as DW 1 and said that his land neighbours that  of the 2nd Defendant. His  testimony  was that the 2nd Defendant  approached him with an offer to sell  to him the suit land.  He said  he declined at first but  finally  agreed to buy  the land after 2nd Defendant  pestered him for about one year.  They agreed at a purchase price of Kshs.2000,000/=. The  title to the land was charged with N H C for a loan, and by then the arrears was about Kshs.700,000/=. The 1st Defendant sent the 2nd Defendant to his advocate and a sale agreement which they executed  on 13th October, 2011 was made . The 1st Defendant  said he paid 2nd Defendant  Kshs.1300,000/= and the balance  was to be paid on transfer . The 1st Defendant   took possession of the land and used about Kshs.400,000/= to fence  it.  The 1st Defendant said the 2nd Defendant  failed to obtain the Land Control  Board consent  and the suit land is yet to be transferred to him.

8.  FINDINGS.

That there is no doubt the 1st Plaintiff and 2nd Defendant  are wife and husband respectively and the 2nd Plaintiff is their son.

That Land parcel [particulars withheld]  is  registered in the names of M E N, who is the 2nd Defendant, since 28th October, 2005 as shown on the copy of the title and certificate of  official search.

That there is also no doubt the 1st Plaintiff  and 2nd Defendant  matrimonial  home is situated on the said land.

That the 2nd Defendant  had charged the title to the suit land for Kshs.500,000/= with N H C and the appropriate entry made on 29th May, 2007 at part C of the register  of the suit land  as confirmed by the copy of certificate of official search.

That the Defendants  entered into a land sale agreement  on 13th October, 2011 under  which 2nd Defendant  agreed to sell the land parcel [particulars withheld]  to the 1st Defendant  for Kshs.2000,000/=. It has been  admitted by the 2nd Defendant  in his statement  of admission dated 23rd January, 2015 and filed on 26th January, 2015 that he had received a total of Kshs.1300,000/= from the  1st Defendant  as part payment.  It was a term of the said sale agreement at clause 3 (b)  that on the completion date, the 2nd Defendant  was to submit to the 1st Defendant  transfer documents. The court was told by the Plaintiffs that the Land Control Board consent to transfer  the suit land has not been obtained. The 1st Defendant testified on the same  issue and said the 2nd Defendant  declined to sign the application for Land Control Board consent. The Land sale agreement dated 13th October, 2011  between the Defendant  was subject  to the Land Control Board consent being  obtained within six months. By  the time the parties  offered their testimonies before  the court, there was no evidence  tendered to confirm whether the consent had been applied for and or obtained and in terms of provisions of the Land Control Board Act, Chapter 302 of the Laws of Kenya.  The Defendants transactions therefore become void after the lapse of six months from the date of the agreement for  failure to obtain  the Land Control  Board consent.

That though  clause 5 of the sale agreement  indicated that  the 2nd  Defendant , as the vendor, was to give the 1st Defendant,  as the purchaser, vacant possession of the suit land on completion, it is apparent the 1st Defendant is already in possession  while  the transaction  has not been completed.  This is the basis on which the Plaintiffs claim damages. The 1st Defendant has testified that he was placed in possession by the 2nd Defendant who did not offer oral evidence to rebut this position.  If there was any breach of the terms of the agreement, either of the parties to the agreement would be entitled to seek recourse or enforcement orders against  the defaulting party in accordance with the law. The Plaintiffs herein, not being parties to the agreement, cannot sue on it breach.  If follows therefore that as the 1st Defendant  was placed in possession of the land by the 2nd Defendant, who has not lodged any claim or complaint on that fact, the Plaintiffs  claim for loss of user, damages and compensation  under prayers 5 and 6 of the plaint cannot be sustained against the  1st Defendant. The same prayers cannot stand against the 2nd Defendant also, as he is still the registered owner of the suit land.

That the land sale agreement between the Defendants dated 13th October, 2011 was subject to the Land Control Board consent being obtained. Had the Defendants lodged the application for consent, the Plaintiffs, and any other person with objection to the transactions, would have had the opportunity to make their representation before the board made its decision. The Land Registration Act 2012 has a commencement date of 2nd May, 2012 which is slightly over six months after the date  of the sale agreement between the Defendants.  The agreement  was therefore not subject to spousal rights  which is now one of the statutory  overriding  interests  under section 28 (a)  of the said Act.

That the suit land, [particulars withheld] , registered  in the names  of the 2nd Defendant, being  the place the matrimonial  home of the 1st Plaintiff and 2nd Defendant  is situated, is so registered subject to the 1st Plaintiff’s  spousal  rights under  section  28 (a)  of the  Land Registration Act 2012. The Plaintiffs therefore  succeeds on prayer 2 of the plaint.

That  Article  27 (3)  of the Constitution provides for equal  treatment  between both gender including the right to equal opportunities  in political, economic, Cultural and Social  spheres. Article 40 (2) (b) of the Constitution  prevents  Parliament from enacting any law that  permits  the state or any person to limit or restrict  the enjoyment of rights on any of the ground  set out under article  27 (4)  of the Constitution.  The provisions of article 44 of the Constitution deals with language and  culture, while article 45 (3) of the Constitution provides for equal rights to parties to a marriage. Though  the Plaintiffs alleges the 1st Plaintiff’s constitutional rights  under the foregoing articles had been  or  are threatened to be violated, there was no evidence tendered to prove  the violation or threat  thereof  and prayer  (1)  of the plaint has no merit.

That though  the 1st Defendant  was placed in occupation of the suit land, he  is not entitled to specific performance orders against  the 2nd Defendant  as he has not paid fully the purchase price under  the agreement  of 13th December, 2011. The 1st Defendant  is however entitled to a refund of Kshs.1300,000/=, which is the amount he had paid the 2nd Defendant , now that the transaction between them  has become void in accordance with section 7  of the Land Control Act, Chapter 302  of Laws of Kenya.  The Plaintiffs were not parties to the sale agreement and cannot be compelled to refund to the 1st Defendant the money paid  to 2nd Defendant.  The claim of Kshs.200,000/= for fencing  the suit land has no merit as it is outside the terms of the sale agreement and cannot be taken to be part of the payment received  by 2nd Defendant.  The 1st Defendant has no reason  to continue  occupying  the suit land as he took possession  prematurely.  The court finds  prayer 4  of the plaint would remain superfluous once  prayer 3  is granted.

That from  the foregoing, the Plaintiffs and the 1st Defendant  have partly  succeeded  in their respective  claims  and  it is only fair  that each party bears  their own costs as  between themselves. The  Plaintiffs  are wife  and son respectively  to the 2nd Defendant and so as to promote  unity among them, each of them will bear their own costs.  However  the 1st Defendant  has shown his preparedness  to perform his part of the bargain, and noting  that the 2nd Defendant  was the one who  frustrated the agreement by failing to obtain the concurrence of his family members to the transaction so as to obtain the Land Control Board consent,  he should bear the 1st Defendants  costs to the Counterclaim.

9.   That having  found as above, the court enters judgment  for the Plaintiffs  and the 1st  Defendant in their respective claims as follows;

That land  parcel  [particulars withheld] , registered in the names of M E N,  is subject to the spousal rights under section 28 (a)  of the Land Registration Act 2012.

That the Land sale agreement  dated 13th October, 2011 pursuant to which  the 1st Defendant  took possession of Land parcel [particulars withheld]  is   void and  the  1st Defendant  should vacate and give  vacant  possession of the suit land to the  registered  owner within the next 30 days  and in default eviction orders to issue.

That the 2nd Defendant to refund  Kshs.1300,000/=  to the 1st Defendant being  the amount paid  and  received  under the voided sale agreement   dated 13th  October, 2011.

That the  2nd Defendant  to pay the 1st Defendant’s costs of the counterclaim.

That  save as to the costs allowed in (iv)  above,  each party to bear his/her  own costs in both the Plaintiffs’ and 1st Defendant’s claim.

It  is so ordered.

S. M. KIBUNJA.

JUDGE.

DATED AND DELIVERED ON   7TH .DAY OF MAY,  2015

IN THE PRESENCE OF;

1ST PLAINTIFF………PRESENT…………………………………………………

2ND PLAINTIFF……   PRESENT………………………………………………

1ST DEFENDANT …ABSENT…………………………………………………….

2ND DEFENDANT…ABSENT……………………………………………………

COUNSEL…MR. JUMBA  FOR 1ST DEFENDANT.