Patrick Wafula v Tabitha B Gitangwa [2018] KEHC 3606 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

CIVIL APPEAL NO.71 OF 2010

PATRICK WAFULA..................................................................APPELLANT

VERSUS

TABITHA B. GITANGWA....................................................RESPONDENT

(Being an appeal arising from the Judgement of Mr. Oigara Senior Resident Magistrate on 29th June, 2010 in Kimilili S.R.M. C.C.C. No.16 of 2008)

JUDGEMENT

By a plaint originally filed at the KIMILILI SENIOR RESIDENT MAGISTRATE’S COURT on 1st April 2008 before being further amended on 13th October, 2009, the Respondent (as Plaintiff) sought judgement against the Appellant (as defendant) in the following terms:-

1. An Order for specific performance requiring the Appellant to sign and execute all the relevant documents and instruments of transfer in favour of the Respondent with regard to a plot and in default the executive Officer of the Court to do so.

2. That in the alternative, a refund of the consideration of Ksh.120,000 being the purchase price together with the penalty of three(3) times of the consideration as pleaded in paragraph 4© of the Plaint.

3. Costs

4. Interest

5. Any further relief that the Honourable Court deems fit to grant.

The basis of the claim in the subordinate Court was that by an agreement dated 21st July 1998, the Respondent and her late husband had jointly purchased from the appellant a plot at a consideration of Ksh.120,000 which was paid in full and the Respondent took possession and had lived thereon upto the time of filing the suit.  However, the Appellant had refused to issue the Respondent with the necessary instruments thus necessitating the filing of the suit.

By a further amended defence, however, the Appellant denied the claim pleading that the Respondent had neither lived on the land nor obtained the necessary Land Control Board consent and therefore the claim was null and void.  Further, that the Respondent had no locus standi to file the suit and therefore the prayers sought in the further amended plaint could not lawfully be granted and a Preliminary Objection would be taken for the suit to be struck out.

The Preliminary Objection was however not raised and the suit proceeded for hearing before Hon. R.O. OIGARA – Senior Resident Magistrate – who entered judgement for the Respondent in the following terms:

1. Refund of Ksh.120,000

2. Costs

3. Interest

Aggrieved by that judgement, the Appellant filed this appeal seeking the main order that it be set aside and the Respondent’s suit in the subordinate Court be dismissed with costs.  The following seven(7) grounds were raised in the memorandum of appeal:

1. The learned trial Magistrate erred in Law by awarding the plaintiff Ksh.120,000 on a cause of action that was statute barred.

2. The learned trial Magistrate erred in Law and awarded the Plaintiff interest for 21/7/1998 arising out of a land transaction which was void for lack of Land Control Board consent.

3. The learned trial Magistrate erred in Law by awarding Ksh.120,000 to the Plaintiff when it was not the plaintiff that paid the same to the Defendant.

4. The learned trial Magistrate erred in Law and in fact, misconstrued the Plaintiff’s exhibit 1 by holding that the plaintiff was the wife to the late LABAN GITANGWA when there was no evidence adduced to that effect.

5. The learned trial Magistrate erred in Law and fact by awarding Ksh.120,000 to the plaintiff who did not hold letters of representation of the Estate of the late LABAN GITANGWA.

6. The learned trial Magistrate erred in Law and fact and misconstrued the contents of the land sale agreement dated 21. 7.1998 produced as plaintiff’s exhibit 1 and ordered the defendant to pay the Plaintiff Ksh.120,000 plus interest from 21. 7.1998 till payment in full when the plaintiff was not a party to the said sale of land agreement.

7. The learned trial Magistrate erred in Law and fact in ordering the defendant to pay costs of the suit to the plaintiff on a suit which ought not to have been filed at all.

The appeal was canvassed by way of written submissions which have been filed both by Mr. J.S. KHAKULA ADVOCATE for the Appellant and Mr. S. WAFULA ADVOCATE for the Respondent.

I have considered the appeal and the submissions by Counsel.

This being a first appeal, my duty is to re-consider the evidence and draw my own conclusions though always bearing in mind that I neither saw nor heard the witnesses and, therefore, I must make due allowance for that.  In addition, an appellate Court will not normally interfere with a finding of fact by the trial Court unless the same is founded on wrong principles or is based on a mis-apprehension of the evidence – SELLE & ANOTHER V ASSOCIATED MOTOR BOAT CO. LTD & ANOTHER 1969 E.A. 123.  See also JIVANJI V SANYO ELECTRICAL CO. LTD 2003 KLR 425.

I shall consider grounds 1 and 3 together which raise the issues that the Respondents suit was time barred and the agreement dated 21. 7.1998 is null and void for lack of the Land Control Board consent and therefore the Respondent was not entitled to a refund of the Ksh.120,000 which, in any event, was not paid by her to the Appellant.

The agreement that gave rise to this dispute was dated 21. 7.1998 and was produced as an Exhibit.  The parties were Mr. and Mrs. LABAN GITANGWA as the buyers and Mr. PATRICK WAFULA KABURU as the seller.  The buyers were purchasing one acre out of land parcel No. KIMILILI/KIMILILI/85 from the seller and the purchase price of Ksh.120,000 was paid in cash at the time of signing the agreement.  The agreement therefore concerned a transfer of an interest in land.  The suit, as is clear from the plaint, sought the main order of specific performance of that agreement or in the alternative, the refund of the purchase price.  The Respondent’s claim was therefore governed by the provisions of Section 7 of the Limitation of Actions Act which reads:

“An action may not be brought by any person to recover land after the end of twelve years from the date on which the cause of action accrued to him or, if it first accrued to some person through whom he claims, to that person”

Mr. KHAKULA cannot therefore be correct when he submits that the Respondents suit in the subordinate Court was caught up by the provisions of Section 4(1) (a) of the Limitation of Action Act because it was filed after ten years when the limitation period for contracts is six years.  The agreement between the parties related to land and was therefore governed by Section 7 of the Limitation of Actions Act and the period between 21. 7.1998 (when it was signed), and 1. 4.2008 (when the suit was filed) is ten years well within the twelve year period.  The suit was therefore not statute barred.

As to whether or not the Respondent was a party to the agreement, the agreement itself reads as follows:

“AGREEMENT TO SELL AND BUY LAND (IN PLOT NO.85  KIMILILI) MR. & MRS. LABAN GITANGWA ID NO. 0810022, I/D. NO. 142599/64 (BUYER) MR. PATRICK WAFULA KABURU I/D. NO. 2090759 (SELLER) To-day the 21st July 1998 MR. PATRICK WAFULA I/D. NO. 2090759 has sold 1(one) acre to Mr. LABAN GITANGWA I/D. NO. 0810022 I/D. NO. 142599/64 at a price of Ksh.120,000 (one hundred and twenty thousand) in cash of one acre.”

Further in paragraph 4 of the said agreement, it is provided as follows:

“Mr. and Mrs. LABAN GITANGWA have been allowed to use the land immediately as Mr. PATRICK WAFULA has agreed to sign the necessary documents in the Land Control Board whenever he will be required to do so.”

The agreement was then signed both by Mr. LABAN GITANGWA and the Respondent.  There can therefore be no justification in the claim by the Appellant that the Respondent did not pay the Ksh.120,000 to the Appellant and was not entitled to a refund of the said sum.  The Ksh.120,000 may have been paid to the Appellant by LABAN GITANGWA but he and the Respondent were the joint purchasers of the land and following the demise of her husband, the Respondent was entitled to file the suit in her own names as she did.  The trial Magistrate did not therefore err either in fact or in law when he decreed that the Ksh.120,000 be refunded to the Respondent.  She was a party to the sale agreement and was therefore entitled to the refund.  Grounds 1 and 3 of the appeal therefore fail.

Grounds 4 and 5 will be considered together.  It is the Appellant’s case that the trial Magistrate misconstrued the sale agreement (Plts Exhibit 1) by holding that the Respondent was the wife of LABAN GITANGWA when there was no evidence adduced to that effect and further, that the trial Magistrate erred in Law and in fact by awarding the Respondent Ksh.120,000 when she did not hold letters of representation to the Estate of the late LABAN GITANGWA.  When the Respondent testified on 2. 2.2010, she stated in cross-examination that LABAN GITANGWA was her husband.  This is what she said in cross-examination:

“…My husband and myself purchased the parcel of land.  My I.D. is on the agreement.”

In his defence, the Appellant refuted that.  This is what he said in his evidence in chief:

“I never saw the plaintiff.  LABAN had no wife.  The plaintiff was not the wife”

In the sale agreement however, the purchasers were described as

“MR. & MRS. LABAB GITANGWA”

When a couple is described as MR. & MRS, it can only mean that they are a man and wife.  That is the ordinary meaning of those abbreviations.   THE CONCISE OXFORD ENGLISH DICTIONARY 12TH EDITION define the title MRS. as:

“A title used before a surname or full name to address or refer to a married woman…”

The trial Magistrate was therefore correct in describing the Respondent as the wife of the late LABAN GITANGWA.  In any case, whether or not the Respondent was the wife of LABAN GITANGWA was really of no consequences.  As I have already stated above, she was a party to the sale agreement dated 21. 7.1998 and she was within her right to file the suit in her names and not necessarily as the wife to the late LABAN GITANGWA.

Similarly, the Respondent did not need to hold any letters of Administration before filing the suit in the subordinate Court.  She did not move the Court as the representative of the Estate of the late LABAN GITANGWA.  She moved the Court in her own capacity having been a party to the sale agreement which the Appellant breached by not obtaining the necessary consent from the Land Control Board.  Grounds 4 and 5 therefore fail.

Grounds 2 and 6 can also be considered together.  Those grounds take issue with the trial Magistrate for awarding interest to the Respondent from 21. 7.1998 out of a land transaction which was void for lack of consent from the Land Control Board and when she was not a party.  I have already found that the trial Magistrate rightly held that the Respondent was a party to the sale agreement dated 21. 7.1998 and was therefore entitled to the refund of the purchase price of Ksh.120,000.  Although the agreement was null and void for lack of consent from the Land Control Board, the Respondent was nonetheless re-entitled to a refund of the purchase price.  Section 7 of the Land Control Act (CHAPTER 302 LAWS OF KENYA) says as follows about the recovery of the purchase price in respect of a transaction that becomes void due to lack of the necessary consent from the Land Control Board:

“If any money or other valuable consideration has been paid in the cause of a controlled transaction that becomes void under this Act.  The money or consideration shall be recoverable as a debt by the person who paid it from the person to whom it was paid, but without prejudice to section 22. ” Emphasis added.

There is nothing in that provision to suggest that interest is not payable on the purchase price and no authority was cited for that proposition by the Appellant.  Mr. KHAKULA Counsel for the Appellant has submitted that the trial Magistrate went overboard by awarding the Respondent the purchase price when it was not pleaded.  Paragraph 8(c) of the Respondent’s further amended plaint dated 13th October 2009 is very clear and seeks as part of the remedies the following

8   (c) “That in the alternative a refund of the consideration as pleaded in paragraph 4  (c) of the plaint.”

The consideration as is now clear from the agreement was Ksh.120,000.

The only error that I can discern from the trial Magistrate’s judgement is when he awarded interest on “the purchase consideration of Ksh.120,000 with interest on the same from 21. 07. 1998 at Court rates till payment in full”.  While I have no doubt in my mind that the Respondent was entitled to interest on the purchase price.  It was an error in Law on the part of the trial Magistrate to order that such interest be paid from 21. 7.1998 which is the date when the sale agreement was signed.  Such interest should have been paid from the date when the suit was filed.

The suit in the subordinate Court was originally filed on 31st March 2008 before it was amended on 2nd September 2008 and further amended on 13th October 2009.  The interest on the purchase price should have been paid from 31st March 2008 when the suit was first filed.  This is because, Section 26 of the Civil Procedure Actstates as follows:

“where and in so far as a decree is for payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged from the date of the suit to the date of the decree in addition to any interest adjudged on such principal sum for any period before the institution of the suit, with further interest at such rate as the Court deems reasonable on the aggregate sum so adjudged from the decree to the date of payment or to such earlier date as the Court thinks fit.”Emphasis added.

Whereas in an appropriate case the Court may order interest to be paid antecedent to the filing of the suit, as the trial Magistrate directed in this case, such an order can only be made where there is such an agreement by the parties or where such interest is allowable by mercantile usage or where there is a statutory right to such interest or the agreement to pay it can be implied from the course of dealing between the parties.  It must also be pleaded – HIGHWAY FURNITURE MART LTD V THE PERMANENT SECRETARY & ANOTHER EALR (2006) 2 E.A. 94 as approved in BARCLAYS BANK (K) LTD V WILLIAM MWANGI NGURUKI C.A. CIVIL APPEAL NO.20 of 2014 NYERI (2014 eKLR).  From the Respondent’s plaint, there was no claim for interest to be paid on the purchase price from the date of the agreement nor was there any evidence that such an order was warranted in the circumstances of this case.  That was the only error on the part of the trial Magistrate and this Court must interfere to that limited extent.

Finally, the Appellant complains in ground 7 that the trial Magistrate erred in Law and fact by ordering him to pay costs of the suit.

It is clear from Section 27 of the Civil Procedure Act that costs follow the event “unless the Court or Judge shall for good reason otherwise order.”

Nothing has been placed before this Court as to why I should interfere with the trial Magistrate’s discretion to award costs to the Respondent.  Given the fact that the Appellant was required by the sale agreement to sign the necessary documents to facilitate the granting of the consent of the Land Control Board which he declined, it was perfectly in order that he should meet the costs of the suit since he was the party in breach.  The order for costs was well merited.  That ground similarly fails.

The up-shot of the above is that save for the date from which the interest on the Ksh.120,000 shall be paid, this appeal lacks merit and is hereby dismissed and I make the following orders:

1. The appeal is dismissed.

2. The Respondent is entitled to a refund of Ksh.120,000 with interest thereon from 1st April 2008.

3. The Respondent is also entitled to costs and interest thereon both here and in the Court below.

BOAZ N. OLAO

JUDGE

4TH OCTOBER 2018

Judgement dated, delivered and signed in open Court this 4th day of October 2018 at Bungoma.

Mr. Milimo for Mr. Simiyu for Respondent present

Mr. Kwatenge holding brief for Mr. Khakula for Appellant present

Right of Appeal.

BOAZ N. OLAO

JUDGE

4TH OCTOBER 2018