Shaban Matete v Lawrence Wandera Ongamo [2014] KEHC 2522 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

CIVIL APPEAL  NO. 39B OF 2011.

SHABAN MATETE ……………………………………..APPELLANT

VERSUS

LAWRENCE WANDERA  ONGAMO……………..RESPONDENT.

JUDGMENT.

SHABAN MATETE, the Appellant, being aggrieved  with the judgment of Hon. M. W. Njagi, Resident  Magistrate, delivered  on 1st September, 2010 in Busia  SPMCC. No. 399 of 2008  filed this appeal setting out four grounds in the Memorandum of Appeal dated 27th July, 2011 as follows;

‘’   1.  That the  Learned Trial Resident Magistrate erred  in law and fact by failing  to appreciate that the Respondent  frustrated the                           sale of land agreement  between him and the Appellant.

2.  That the Learned Trial Resident  Magistrate   erred in law and  fact by finding that the appellant only paid Kshs.9,400/= as                         purchase price.

3. That the Learned Trial Resident Magistrate erred in law and fact by finding  that the parties  did not apply for consent of the                            Land Control Board.

4.  That the Learned Trial Resident Magistrate erred in law and  fact by arriving at  a wrong decision that was against the weight                 of evidence on record.’’

The Appellant prays for the Lower courts judgment to be quashed and an order of specific performance  in respect of South Teso/Angoromo/4294  against  Respondent be issued. He  also prays for costs.

The Appellant  was represented by M/S. Maloba  & company advocates  and Respondent   by M/S. Bagonko, Otanga  & company advocates .  The Respondent  counsel later  filed the application  dated 19th November,  2012  to cease acting for the Respondent and it   was allowed on 29th May, 2013 but Mr. Bogonko  and Otanga advocates  from the firm of Bogonko Otanga  & company advocates,  continued  appearing for the  Respondent.  On the 11th November, 2013, the court ordered that the appeal to be disposed off through  written  submissions. Thereafter  M/S. Maloba & company advocates  filed the Appellant’s submissions dated 9th June, 2014  and M/S. Bogonko Otanga & company advocates filed the Respondents submissions dated 23rd June, 2014.

This being  a first  appeal, the court is obligated to re evaluate the evidence, assess it  afresh and make its own conclusions while remembering that the court neither saw  nor heard the witnesses and should therefore give allowance for that. This court is not  bound to follow the trial court’s  finding of the fact if it appears either to have clearly failed on some  point to take   account  of particular circumstances or probabilities materially to estimate the  evidence or if the impression based on the demeanor of a witness is inconsistent  with the evidence in the case generally.

I have looked at the evidence adduced  by both Appellant and the Respondent  and is as summarized  hereinbelow:

That  the Appellant  and Respondent  entered in a land sale agreement on 4th July, 1987. The agreement was in writing.

That under  the sale agreement, Respondent  was to sell  to Appellant a piece of land measuring 108 feet by 200 feet.

That while  Appellant  claims he paid the whole purchase  price albeit in instalment while the Respondent  insisted that he received only Kshs.9,400/=.

That the Respondent  applied for and received  Land Control  Board consent  to subdivide the land parcel South Teso/Angoromo/4294.

That Respondent gave Appellant possession of the land upon making the sale agreement.

That though Appellant position is that Respondent  has  frustrated  the sale agreement  by declining to transfer  the  land to him, the Respondent contended that it is the Appellant  who failed  to pay the Kshs.600/= being the outstanding  purchase price. The Respondent further stated  that he filed  SRM CC. No. 50 of 2004 to nullify the sale agreement dated 4th July, 1987  among others and that he had deposited  the purchase price received from Appellant  with his advocate for transmission  to the Appellant.  The Respondent  did not however  produce any documentary evidence  to confirm  the deposit.

This  court has perused the judgment delivered on 1st September, 2010 and it is apparent the Learned Trial  Magistrate considered the testimonies  of both and Appellant and Respondent when she made the following  finding:

‘’  The agreement  produced by the Plaintiff as exhibit 1  shows  he paid the Defendant a total of Kshs.9,400/= of his allegation that he paid Kshs.600/= before the Chief is not  supported by evidence on record.’’

It was the duty of the Appellant  to offer evidence  of how he paid  the Kshs.600/=  which Respondent had disputed.  He  could have done so by availing documentary  evidence as he did  in respect of the Kshs.9,400/-, or calling witnesses who were present during the  payment. The Learned Trial  Magistrate was therefore  entitled  to come to the finding that she  did which is that the Appellant  had not paid the whole purchase price to the Respondent.

The Appellant’s suit before the Lower court was for  specific  performance orders against the Respondent . However,  the Learned  Trial  Magistrate   after considering the evidence  adduced found the orders  could not issue  as the Land Control Board consent  for transfer had not been obtained. The relevant  portion of the judgment  reads as follows:

‘’There is no evidence on record that the parties sought the consent of the Land Control Board consent  within the stipulated time  orders of  specific performance  cannot therefore issue and the Plaintiff is only entitled to a refund of the purchase price      paid.’’

It is important to remember that the land subject matter of this suit was agricultural land and that is possibly why the parties have raised the issue of Land Control Board Consent.  The provision of Section 6 of the Land Control Act Cap 302 of the L.O.K states:

‘’  6     (1) Each of the following transactions –

the sale, transfer…………………

…………………………………….

……………………………………

is void for all purposes unless the Land Control   Board for the Land Control area  or division in which   the  land is situated has given consent in respect of  that transaction  in accordance with this Act.’’

The application  for consent is required under section 8(1)  of the said Act to  be made within six  months  of the agreement. The Appellant did not exhibit  any consent to  transfer  in respect of the sale agreement  he had  with the Respondent.  The  only consent exhibited  was consent for Respondent  to subdivide  his land and not consent for Respondent to transfer any land, leave alone  South Teso/Angoromo/4294, to the Appellant. The finding of the Learned Trial Resident Magistrate  that orders of specific performance were not available for the Appellant  cannot be faulted as  the sale agreement  was void for lack of Land Control Board consent to transfer.

The Learned Trial Resident Magistrate was therefore in order when she found that the Appellant could only have refund of the purchase price he had paid to the Respondent. This  decision is in conformity with the provisions of section 7 of the Land Control Act which states:

‘’    7. If any money or other valuable consideration has been paid  in the course  of a controlled transaction that becomes void under this Act, that 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. ’’

The  Respondent’s  counsel submitted  that the Appellants right to recover  the money had to be done within 6 years as provided for under section 4 of the Limitation of Actions Act Cap 22 of the L.O.K and asked the court to follow the finding  in  SIMIYU –VS-  WATAMBALA (1988) KLR 852 where  Hancox JA at page  857 held;-

‘’ The  Appellants  remedy, subject to the Law of Limitation  was an action for damages  coupled  with the recovery  of                              the purchase  money under section 7  of  the Act.’’

As the Respondent  has not cross – appealed  on the decision  of the Learned Trial Magistrate that  he refunds  Kshs.9,400/=  plus costs, this court  finds no fault in the Lower courts judgment  of 1st September, 2010.

For reasons shown above, the court finds the appeal filed herein is without merit and is dismissed with costs.

It is so ordered.

S.M. KIBUNJA,

JUDGE.

DATED AND DELIVERED ON 30TH DAY OF JULY, 2014.

IN THE PRESENCE OF;APPELLANT,HIS ADVOCATE M/S. MALOBA AND MR.JUMBA FOR OTANGE FOR RESPONDENT.

JUDGE.