Samson F Nyongesa, Geofrey S S Etyang & Lazarus N Maruti v Barnabas Emoit Papa [2015] KEHC 5917 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

ELC. NO. 93 OF 2013.

SAMSON F. NYONGESA……………………………………………………1ST PLAINTIFF

GEOFREY S.S. ETYANG……………………………………………………2ND PLAINTIFF

LAZARUS N. MARUTI……………………………………………………….3RD PLAINTIFF

VERSUS

BARNABAS EMOIT PAPA…………………………………............…………DEFENDANT.

J U D G M E N T.

SAMSON F. NYONGESA, GEOFFREY S.S. ETYANGandLAZARUS  M. MARUTI, hereinafter  referred to as 1st, 2nd, and 3rd Plaintiffs respectively,  filed this suit against BARNABAS EMOIT PAPA, hereinafter  referred to as Defendant, for  specific performance in respect of their respective  land sale agreement for portions of ¾  acre, 1 acre and ½ acre of North Teso/Kocholia/696.  In the alternative the Plaintiffs prays for refund of Kshs.282,000/=  and interest at  23%  per annum from 5th December, 2010 till payment in full.   They also pray for costs.

The Defendant was served but did not enter appearance or file defence.  The  Plaintiffs   applied for judgment  vide their counsel’s  letter dated 20th February, 2014.  The matter then proceeded to formal proof.  The three Plaintiffs testified  as PW1, PW 2 and PW 3 respectively.

PLAINTIFFS’ CASE.

That the Defendant  and the 1st Plaintiff entered into a land sale agreement in which Defendant  was to sell to the 1st Plaintiff ¾  acre  from North Teso/Kocholia/696 at Kshs.75,000/= on 21/2/2010. That the 1st Plaintiff finished paying the purchase price on 5th December, 2010 and was given possession of the land.   The  1st Plaintiff said the Defendant was to include his names in the list of beneficiaries  in the Succession Cause  of his father namely, Philip  Papa, who was the registered proprietor of the land  but failed to do so.

That the 2nd Plaintiff told of the sale agreement  that he entered into  with Defendant over one acre of land from North Teso/Kocholia/696 at Kshs.137,000/= on 13/10/2012.  He said Defendant gave him possession of the portion but has not transferred it to him even  after getting the grant confirmed.

The 3rd  Plaintiff said that on 10th May, 2011, the Defendant agreed to sell to him ½ acre of land  North Teso/Kocholia/696 for Kshs.70,000/=.  The Defendant  placed the 3rd Plaintiff into possession but  declined to transfer it to him and hence this case.

The Plaintiffs prays for either specific  performance or the refund of the monies paid plus costs.

ANALYSIS OF THE EVIDENCE.

That though  the Plaintiffs case is that the Defendant  was selling to each one of them, the specified portion from North Teso/Kocholia/696, the copy of the land’s register which was  certified as a true copy  on 16th August, 2013 shows that   the land was registered in the names of Philip  Papa and not the Defendant.

That the said Philip Papa is reported to have been the father of the Defendant   and  is deceased.  The Plaintiffs did not disclose the date of death of the said Philip Papa but  from the copy of the certificate of confirmation of grant in Busia Succession Cause number 66  of 2009, which  they availed  to the court,  the said Philip Papa had died before they entered  into the sale agreement with Defendant.  It would  therefore have been impossible  for the Defendant  to include the Plaintiffs in the list of beneficiaries  as the certificate  of confirmation of grant which carries the schedule of beneficiaries. and their entitlement had been issued on 3rd  November, 2010.  It is noted that the  1st Plaintiff  only finished paying the purchase price on 5th December, 2010 while  the agreements in respect of 2nd and 3rd  Plaintiff were of 26th May, 2012 and 10th May, 2011 respectively.

That the Defendant was  not the registered owner of North Teso/Kocholia/696 at the time the land sale agreements with the Plaintiffs  were made and in law  he had no capacity to sell what  he  did not own.  What the Defendant  owned was a beneficial interest over the suit land. That  after the grant was confirmed under  the certificate  dated 3rd November, 2010  in Busia succession cause No. 66 of 2009, his  interest was settled as nine (9)  acres.  It is  however not clear why the Defendant ,  as the  administrator of his father’s estate has not taken steps to register the said certificate with the Lands Office awaiting  partitioning  among the beneficiaries.

That the  Plaintiffs  sale agreement with the Defendant do not seem to have received the requisite consent from the Land Control Board as required under section  6 (1) and 8 (1)  of the Land  Control Board Act,  Chapter 302 of the Laws of Kenya.  It follows that the sale agreements became void after six months of their making and under section 7 of the said Act, the Plaintiffs can only  recover  the monies paid to the Defendant  under the agreements.  The Defendant did not file any papers in this case. The court find that  there is proof that the Defendant received   a total of Kshs.282,000/= from the Plaintiffs.  The  Plaintiffs are  entitled  to the refund as  the  suit was filed before the six years  period from the date of the agreements.

That the demand notice dated 19th August, 2013 addressed to the Defendant by M/S.  Gabriel Fwaya  advocates for the Plaintiffs had  taken the erroneous position  that Defendant was yet to file Succession Cause in respect of his father’s  estate.  The truth  of the matter is that the Succession Cause  had been filed in the year  2009, which is long before any of the sale agreements was made.  The court is unable to know who then , between the Plaintiffs and Defendant,  was to blame for the  failure to complete the performance of the agreements.  It was  the duty of the Plaintiffs to  show the court that the blame did not  lie on them, but the Defendant,  so as to be entitled to costs of the suit but they failed to do so.

That  for reasons  set out above, the court enters judgment  for the Plaintiffs  against Defendant for refund of Kshs.282,000/=  (Two Hundred and eighty two thousands  shillings) being  monies  received under the three sale agreements.  Each party to bear their own costs.

It is so ordered.

S.M. KIBUNJA.

JUDGE.

DATED AND DELIVERED ON 19th DAY OF MARCH, 2015.

IN THE PRESENCE OF  PRESENT IN PERSON ……………………………..1ST PLAINTIFF

PRESENT IN PERSON……………………………2ND PLAINTIFF

PRESENT IN PERSON ..………………………….3RD PLAINTIFF

ABSENT …………………………………………….DEFENDANT.

M/S. Maloba  for Fwaya  for plaintiffs ………………………COUNSEL.

JUDGE.