Susan Muthoni Gachibi v Benedict Waititu Kibuku & Josphat Mwaniki Mwangi [2017] KEHC 1924 (KLR)

REPUBLIC OF KENYA

THE HIGH COURT OF KENYA

AT NAKURU

HCC. NO 285 OF 2010

SUSAN MUTHONI GACHIBI...............................................PLAINTIFF

- VERSUS -

BENEDICT WAITITU KIBUKU...................................1ST DEFENDANT

JOSPHAT MWANIKI MWANGI.................................2ND DEFENDANT

RULING

1. The 1st defendant Benedict Waititu Kibuku (hereinafter applicant) filed a notice of motion dated 19th June 2017 seeking an order for the release of Kshs.225,000/= to the firm of Kanyi Ngure & Co. Advocate for onward transmission to the 1st defendant.

2. The background to the application is clearly set out in the grounds and the supporting affidavit sworn by Benedict Waititu Kibuku and runs as follows: The 1st defendant (applicant) sold land parcel Nyandarua/Sabugo/1969 to the 2nd defendant Josephat Mwaniki Mwangi.   The plaintiff Susan Muthoni Gachibi sued for the balance of the purchase price being Kshs.225,000/= on grounds that she was the wife of the 1st defendant and a legitimate owner of the parcel of land.   The court ordered that the said balance be paid into court pending the determination of the suit.   Following the order the 2nd defendant Josphat Mwaniki Mwangi deposited the money in court and was issued a receipt dated 9th November 2010.   By a judgment dated 5th April 2017, Omondi J dismissed the plaintiff’s claim holding that the plaintiff neither proved that she was the vendor of the suit land nor proved any beneficial interest therein.

3. The application was argued before me on 18th October 2017.   The plaintiff did not attend court despite service.   The court had required her personal attendance as there was a pending application filed by her counsel Mr. Njuguna to cease acting.  An affidavit of service sworn by one George Rasugu, process server and filed by Ndungu, Njuguna & Co. Advocates showed that the plaintiff had been served.  The plaintiff had also been served the present application by the applicant.

4. The applicant argues that the judgment clearly shows that he was the lawful owner and vendor of the suit land and was therefore entitled to the balance of the purchase price.  Mr. Njuguna for the plaintiff submitted he acted for the plaintiff in the case and was aware that the money was deposited by the buyer and was to go to the lawful seller upon determination of the suit.  In his view the application was merited.

5. I have considered the application.   In doing so, I have perused the file and the judgment of Omondi J.   The proceedings shows that the balance of the purchase price was deposited into court by the 2nd defendant Josephat Mwaniki Mwangi on the orders of the court during the pendency of the suit.   The judgment was delivered on 8th May 2017.   It stated in the concluding paragraph that “consequently I find this claim is not proved and must fail.   It is dismissed.   Each party shall bear its own costs.”   It does follow from the judgment that the money deposited in court rightly belonged to the 1st defendant who was found to be the lawful vendor.

6. Following the above, I order that the Kshs.225,000/= deposited in court by the 2nd defendant be released to the firm of Kanyi Ngure advocates for onward transmission to the 1st defendant – Benedict Waititu Kibuku.The applicant shall bear costs of the application.

Ruling delivered, dated and signed in open court this 7th day of November 2017

R.  LAGAT KORIR

JUDGE

In the presence of:

C/A Emojong

N/A for plaintiff

Mr. Kanyi for 1st defendant

N/A for 2nd defendant