Teresia Wangari Kimotho v Regina Muthoni Gitau [2019] KEELC 2597 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NAIROBI

E.L.C CASE NO.1114 OF 2014

TERESIA WANGARI KIMOTHO...........................................PLAINTIFF

VERSUS

REGINA MUTHONI GITAU..................................................DEFENDANT

JUDGEMENT

1. Through the plaint dated 18/08/2014, the Plaintiff contended that by the agreement dated 24/07/2003, made between her and the Defendant, the Defendant sold to her the parcel of land known as Ngenda/Gatukuyu/T.280 (“the Suit Property”). The Plaintiff averred that she paid the Defendant the sum of Kshs. 172,000/=, but the Defendant breached the agreement and refused to transfer the suit land to her. She sought to have the Deputy Registrar sign the relevant documents for transfer in respect of the Suit Property for her benefit and to have the old title deed dispensed with. She also sought the costs of the suit.

2. The Defendant filed her defence dated 02/10/2014 in which she admitted that she entered into the agreement dated 24/07/2003 with the Plaintiff but contended that the sale was incapable of completion on account of factors beyond her control, to wit, that the sale was subject to the outcome of a succession matter in respect of the Estate of the late Regis Wamunyu Githuka, which was ongoing in Thika CMCC Succession Cause No. 190/05. She added that pursuant to the certificate of confirmation of grant issued on 27/6/2005, the Suit Property was given to her to hold in trust for herself and her children who were all minors at the time. She contended that she now holds the Suit Property for herself and on behalf of her children pursuant to the confirmed grant.

3. During cross-examination, the Plaintiff admitted that she did not conduct a search prior to entering into the sale agreement with the Defendant. She testified further that the Defendant told her the title to the suit land was registered in the name of her father-in-law and that she was the administrator of the deceased’s estate. The Defendant told her that she needed money to pay school fees for her children, and the Plaintiff believed her.

4. After the succession matter was completed, the Defendant neither informed the Plaintiff of the outcome, nor did she present herself to the land control board in order to obtain the requisite consent to transfer the Suit Property to the Plaintiff. The Plaintiff later learnt that the Defendant intended to sell the Suit Property in 2014. She made a complaint to the Chief who wrote the letter dated 25/6/2014 demanding that the Defendant transfers the suit land to the Plaintiff.

5. On her part, the Defendant told the court that she was ready to refund the sum of Kshs.100, 000/= paid to her by the Plaintiff, because the confirmed grant stated that she was to hold the suit land for herself and in trust for her children, yet initially she had anticipated that the title deed to the Suit Property would come out in her name. She stated that her children did not consent to the transfer of the Suit Property as they wished to develop it.

6. The court has considered the pleadings, exhibits as well as the parties written submissions. It is clear that the Defendant had no capacity to enter the agreement dated 24/07/2003. Under Section 82 of the Law of Succession Act, no immovable property can be sold by a personal representative before confirmation of the grant.   In this case, there was no evidence to show that the Defendant was the personal representative of the late Regis Wamunyu Githuka by the time the sale agreement was signed. The court’s assessment of the evidence is that the agreement was not capable of execution. From the evidence on record, the Defendant received Kshs. 100,000/= as the purchase price from the Plaintiff in respect of land which the Defendant could not legally deal with.

7. The court directs the Defendant to refund the Plaintiff the sum of Kshs. 100,000/= within 30 days together with interest at court rates to be calculated from the date the payment was made to the Defendant until payment in full. The Defendant will pay the Plaintiff the costs of this suit.

Dated and delivered at Nairobi this 28th day of June 2019

K.BOR

JUDGE

In the presence of: -

Mr. D. N. Kamau for the Plaintiff

Ms. V. Wambua for the Defendant

Mr. V. Owuor- Court Assistant