Ramaker Gerold Lambertus v Paul Mabwa Okwomi; Everlyne Nasimiyu Wanyonyi (Defendant) [2019] KEHC 3099 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITALE

CIVIL APPEAL NO. 14 OF 2018

(Being an appeal arising from  Judgment and Decree in Kitale Chief Magistrate's Court in Civil Suit No. 257 of 2017 delivered by  D. Wangeci (SRM) on 30/5/2018)

RAMAKER GEROLD LAMBERTUS................................APPELLANT

VERSUS

PAUL MABWA OKWOMI...............................................RESPONDENT

AND

EVERLYNE NASIMIYU WANYONYI.............................DEFENDANT

J U D G M E N T

1. The issues raised in this appeal are clear and straight forward.  On 4/2/2015 the Respondent entered into a sale agreement with the Applicant as well as one Everlyne Nasimiyi Wanyonyi where the Applicant purchased one acre  out of Land parcel No. Kwanza/Namanjalala Block 5/1087 for a total amount  of Kshs  500,000/= which amount he received .  The parties were thereafter to pursue the conveyancing process so as to have the said parcel excised and transfered to the purchasers.

2. The same was not effected leading to the filing of the suit at  the lower court for the refund of the purchase consideration together with attendant costs totalling  Kshs 665,000/=.

3. The Respondent filed a defence denying the same and stating that the appellants frustrated the whole agreement because of their internal family feuds.  He further contended that the Appellants gave him some professional  work to do i.e drawing of house plans which todate they have failed to pay.  He graved for the leave of the court to file a counterclaim.

4. The Appellants thereafter filed an application for summary judgment which the trial court disallowed on 30th May 2018 and which has necessitated this appeal.

5. When the matter came up for hearing the  Respondent who was acting in person  indicated that he needed  time to pay the amount but mid way, he changed his mind  hence the court's order that the appeal be heard.

6. The centrality of the appellant appeal is whether the sale agreement presented to the trial court had been rendered null and void by want of the consent of the Land Control Board taking into consideration that  this was an agricultural land.  If so did the Respondent breach the agreement?

7. From the pleadings filed on record, there is no contention that there was a sale contract between the parties as stated  above. Its also clear that the Respondent was paid the total purchase consideration.

8. The trial court seemed to have been convinced  that the defence filed by the Respondent raised triable issues which necessitated that the matter should go to full trial.

9. I have read the Respondents defence very well. Save that he has raised the issues of Professional Services he offered to the Respondents, there is no  doubt that he received the money.  More significantly, he  did not file any counterclaim so as to claim his fees against the Respondents.  The same simply remains mere  allegations.

10. The substantive issue is the fact that the Sale agreement was frustrated by the lack of the requisite consent from  the Land Control Board as envisaged by the Land Control Act Cap 302 Laws of Kenya.  The alternative  therefore was for the parties to extent the time by  mutual consent or the refund of the purchase  consideration.

11. Clearly, the Respondent cannot have both the Land and the money.  He has to choose one.  He could not peg his professional services on the sale agreement.  He was and infact still is free to demand the  same outside the contract  noting as found  above that he did not   counterclaim.

12. Without, therefore, wasting much judicial time, I find the appeal meritorious.  I note that despite being granted opportunity the Respondent   did  not  submit orally or in writing.

13. The Appeal is hereby allowed. The lower court ruling dated 30th May 2018 is set aside. The Respondents  Paul Mabwa  Okwomi is hereby ordered to pay the decretal amount together with costs and interest  within the next 30 days from the date herein as prayed for in the plaint.

14. The Appellants shall have the costs of this appeal and the  cost at the lower court.

Orders accordingly.

Delivered, signed and dated at Kitale this  3rd day of April, 2019.

__________________

H.K. CHEMITEI

JUDGE

3/04/19

In the presence of;

Ms Munialo for the Appellant

Respondent – Absent

Court Assistant – Kirong

Judgment read in open court.