Patrick Wambua Muta v Kanini Musya [2018] KEELC 26 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT  AND LAND COURT AT MAKUENI

ELC CASE NO. 204 OF 2017

PATRICK WAMBUA  MUTA ------------------------------- PLAINTIFF

VERSUS

KANINI MUSYA ------------------------------------------ DEFENDANT

JUDGMENT

1) This suit  commenced by way of plaint  dated 11th July, 2016 and filed in court on 12th July, 2016 wherein the Plaintiff sought the following orders:-

a) An order nullifying the contract dated 13th October, 2013 in respect of 4 acres to be hived  from the parcel of land known as Makueni/Kalawa/251 between the Plaintiff and the Defendant.

b) Costs of the suit and any other order this court deems fit and just to grant.

2) On the  22nd  July, 2016 the Defendant  filed her memorandum  of appearance  and defence  which  were both  dated 22nd  July, 2016.

3) Pursuant to the orders issued by this  court   in the  notice of motion  application dated  4th August, 2017 and filed in court on the  9th August, 2017, the  Plaintiff filed an amended plaint on the  30th  October, 2017 . In the amended plaint, the Plaintiff sought the following orders.-

a) An order  nullifying  the contract of sale dated  13th October, 2013  in respect of 4 acres to be  hived from the parcel of land  known  as Makueni/Kalawa/256 between the Plaintiff and the Defendant .

b) Costs of this suit and any other order this court deems fit to grant.

4) On the 21st February, 2018, the Defendant filed her defence dated 14th February, 2016 to the amended plaint.  She sought  the following  reliefs:-

a) That the plaintiff’s suit be dismissed with costs.

b) That the honourable court do issue an order of specific performance  against the  Plaintiff  herein.

c) In the alternative a refund of the purchase price together with interest from the date of receiving the purchase price to date.

d) Damages for breach of contract.

e) Any other relief the court deems fit to grant.

5) When  the matter came up for hearing on the 21st February, 2018  parties recorded  a consent in the  following  terms :-

1. That the Plaintiff do refund the consideration of Kshs. 145,000 to the Defendant in respect of the purchase of 4 acres of plot  number   Makueni/Kalawa/256.

2. Parties to file submissions in respect of interest in breach of  contract and damages.

3. Status  quo to be maintained and mention within 45 days to  confirm fixing  of  submissions and  fixing of a date for  judgment.

6) The Plaintiff  and the  Defendant   filed their  submissions on the 9th March, 2018 and 11th April, 2018 respectively. Having read those  submissions, I am of the view that the issues for determination are:-

1. Whether the agreement for sale of land between the parties herein  is valid.

2. Whether the Defendant is entitled to damages for breach of  contract .

3. Whether the Defendant is entitled to interest.

7) It has been submitted by the Plaintiff’s counsel that the contract between the parties herein is illegal and invalid because they failed to adhere to provisions of Section 7 of the Land Control Act Chapter 302 and further that the agreement was in breach of section 45(1) of the Law of Succession Act Chapter 160 of the Laws of Kenya. The Plaintiff relies on the case of Root Capital Incorporated Vs Tekangu Farmers’ Co-operative Society Ltd & Another[2016] eKLR.

8) On the other hand, the Defendant’s counsel  is silent  on the  validity of the contract. The counsel in his submissions pointed out that   the mere act  of instituting this suit breached  the entire  contract  dated  13th  October, 2013 and  as such, the Defendant  is entitled to damages.  The counsel relies  on the case of Guaranty Discount   Company  Ltd  Vs Oliver Lawrence Ward [1961]EA 285, Nakana Trading Co. Ltd Vs Coffee Marketing   Board (1990 – 1994) EA 448 and National Bank of Kenya  Ltd Vs Pipe Plastic Samkolit (K) Ltd and Another [2002] EA 503. The Plaintiff’s counsel in his submissions was of the view that parties cannot claim damages for  breach of contract since the agreement  is void  ab initio.

9) On whether or not the Defendant is entitled to interest, the Plaintiff’s counsel cited Section 26(1) of the Civil Procedure Act and the case of Francis  Kamaulchatha  Vs Housing Finance  Company of Kenya Ltd [2015] eKLR and submitted that this court has discretion to award interest  but given the fact that the Defendant refused to take the refund  of the  purchase price  after  the Plaintiff  informed him about his wish to repudiate  the contract  for lack of capacity to sell   the land, he should not bear the burden of paying interest since the Defendant was not deprived of the use of the money by the  Plaintiff.  The counsel went on to submit that that Defendant was in occupation   of the land since 2013 and has greatly gained economically from it.

10)   The Defendant’s counsel was of the view that had the money been deposited in a bank in the year 2013, the some would have accrued interest and as such the Defendant is entitled to interest.

11)   I will address the three issues collectively.  The Plaintiff has averred in paragraph   4 of his amended plaint that he was unable to transfer 4 acres in favour  of the Defendant all that  parcel of land known as Makueni/Kalawa/256 as it was registered in the name of his  deceased mother, one Mary Nthambi Mutua. The Plaintiff had not pursued letters of administration in respect of the estate of the deceased.  The Defendant has in paragraph 3 of  his defence  to the amended plaint  averred that he is  stranger   to the averments.  Apart from the submissions on record, no evidence was led on this issue. Similarly, there was no evidence that was placed before me to enable  me determine whether or not the contract between the parties herein  is valid  and whether  or not the Defendant  is entitled to damages and interest.  The submissions by the counsel on record remain evidence from the bar whose veracity was not tested in cross-examination.

12)   Since  both parties have consented that the Plaintiff do refund the consideration of Kshs. 145,000  to the Defendant  in respect of  purchase of 4 acres of plot  number  Makueni/Kalawa/256, the logical  conclusion is that this being a “win win”  situation for the parties, each one of them  should bear their  own costs.

13)   In the circumstances, my finding is that each party herein should bear their own costs.  It is so ordered.

SIGNED, DATED DELIVERED  THIS AT MAKUENI THIS  13TH DAY OF DECEMBER, 2018.

MBOGO C.G

JUDGE

In the presence of;

Ms Kyalo holding brief   for Mr. Munyasia for the Defendant.

Ms Mbuvi holding brief for Mr.  Mutinda  for the Plaintiff

Mr.  Kwemboi   Court Assistant.

MBOGO C.G, JUDGE

13/12/2018