Case ID:168463

Margaret Mbulwa Ngau v Leonard Kimaita & another [2020] eKLR

Case Metadata

Case Number:

Environment and Land Case Appeal 26 of 2018

Parties:

Margaret Mbulwa Ngau v Leonard Kimaita & Muka Mukuu (FSC)

Date Delivered:

17 Dec 2020

Case Class:

Civil

Court:

Environment and Land Court at Thika

Case Action:

Judgment

Judge(s):

Lucy Nyambura Gacheru

Citation:

Margaret Mbulwa Ngau v Leonard Kimaita & another [2020] eKLR

Case History:

(Appeal from the Judgment of M/S Hon. A. M. Maina Senior Principal Magistrate delivered on the 9th Day of October 2018 in Chief Magistrate’s Civil Case No. 251 of 2008, Thika)

Court Division:

Environment and Land

County:

Kiambu

History Docket No:

Civil Case No. 251 of 2008

History Magistrate:

M/S Hon. A. M. Maina (SPM)

History County:

Kiambu

Case Outcome:

Appeal dismissed with costs to the 1st Respondent

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT THIKA

ELC APPEAL CASE NO. 26 OF 2018

MARGARET MBULWA NGAU.....................................................APPELLANT

VERSUS

LEONARD KIMAITA...........................................................1

ST

RESPONDENT

MUKA MUKUU (F.S.C)......................................................2

ND

RESPONDENT

(

Appeal from the Judgment of M/S Hon. A. M. Maina Senior Principal Magistrate delivered on the

9

th

Day of October 2018

in Chief Magistrate’s Civil Case No. 251 of 2008, Thika

)

BETWEEN

LEONARD KIMAITA.......................................................................PLAINTIFF

VERSUS

MUKA MUKUU (F.S.C)..........................................................1

ST

DEFENDANT

MARGARET MBULWA NGAU.............................................2

ND

DEFENDANT

JUDGMENT

The Appellant herein

Margaret Mbulwa Ngau,

was the 2

nd

Defendant in

Thika CMCC

No.251 of 2018

. The 1

st

Respondent

Leonard Kimaita

was the Plaintiff and the 2

nd

Respondent,

Muka Mukuu (F.S.C)

was the 1

st

Defendant in the above stated suit. The Plaintiff had via a Plaint dated

22

nd

March 2008

sought for the following orders against the Defendants;

a) A Declaration that

Plots No. 42 and 43

at the 1

st

Defendant’s farm belong to the Plaintiff.

b) The purported transfer to 2

nd

Defendant be declared null and void.

c) Costs of the suit.

d) Such other and further relief as the Court shall deem fit and just to grant.

The Plaintiff (1

st

Respondent) had averred that in

December 2004,

the 2

nd

Defendant( Appellant) purchased Plots

No. 2788 and 2789,

from the 1

st

Defendant( 2

nd

Respondent). That upon payment of the full purchase price on

15

th

May 2006,

the Plaintiff (1

st

Respondent) took possession of the plots and started cultivating the same. That in

2007,

the 1

st

Defendant (2

nd

Respondent) in total disregard of the Plaintiff’s (1

st

Respondent’s) rights as the owner of the plots made illegal demands to the Plaintiff(1

st

Respondent) to vacate the plots and move to a new site.

That in blatant abuse of the Plaintiff’s (1

st

Respondent’s) rights of ownership to the subject plots, the 1

st

Defendant (2

nd

Respondent) purported to illegally and fraudulently put the 2

nd

Defendant( Appellant) into occupation of the plots. He particularized fraud as; putting a third party to wit the 2

nd

Defendant (Appellant) into the plots without the Plaintiff’s (1

st

Respondent’s) knowledge. The Plaintiff (1

st

Respondent) further averred that the 1

st

Defendant (2

nd

Respondent) having sold and allocated the plots to the Plaintiff (1

st

Respondent), lacked capacity to transfer to the 2

nd

Defendant( Appellant).

The suit was opposed and the 2

nd

Defendant (Appellant) filed a Defence dated

28

th

April 2008,

and denied all the allegations made in the Plaint. It was her contention that she was the legal owner of

Plots No. 31,42

and

43,

having lawfully purchased them from the 1

st

Defendant(2

nd

Respondent) and that she had no

nexus

with the Plaintiff’s (1

st

Respondent’s) Plots Number

2788 and 2789.

That since there was no demand to sue, the Plaintiff (1

st

Respondent) was not entitled to costs and the suit was misconceived, bad in law and an abuse of the Court process.

The 1

st

Defendant (2

nd

Respondent) also filed a statement of Defence dated

28

th

April 2008,

and denied all the allegations made in the Plaint and denied ever selling the plot to the Plaintiff (1

st

Respondent) that no land was earmarked for sale at the said area. And that the Plaintiff (1

st

Respondent ) and the 2

nd

Defendant (Appellant) are irregularly on the suit property and they do not have the

locus standi.

The 1

st

Defendant (2

nd

Respondent) denied any rights to property accruing to the Plaintiff (1

st

Respondent) and the 2

nd

Defendant (Appellant) That the 2

nd

Defendant (Appellant) could not claim to pass any title. The suit is governed by the Cooperative Societies Act and the cause of action was addressed by an Inquiry Order dated

9

th

April 2008,

and the Jurisdiction of the Court was ousted. That the matter could only be filed at the High Court or the Land Disputes Tribunal.

The matter proceeded for hearing as follows:-

PLAINTIFFS CASE

PW 1 Leonard Gitonga Kimaita

adopted his witness statement dated

23

rd

September 2013

and testified that the 1

st

Defendant was his employer. He produced his list of documents dated

30

th

September 2013

as Exhibits 1 to 8. Further that he did not authorize anyone to sell Plots

42

and

43

which belonged to him.

He acknowledged that though he was in Court over

Plots 42

and

43,

the plots he mentioned in his witness statement were plots no.

2788

and

2789.

That as per letter dated

20

th

December 2006,

the 1

st

Defendant was offering him an alternative plot because they sold him wrong plots. That as per the letter, the 1

st

Defendant indicated that it sold him a commercial plot instead of a residential plot, yet a commercial plot was going for

Kshs. 30,000/=

and a residential on for

Kshs. 25,000/=,

That the 1

st

Defendant asked him to top up with

Kshs. 5,000/=

to retain the plot or in the alternative he be given another plot for

Kshs. 5,000/=.

That he did not pay the

Kshs. 5,000/=

as requested as he had bought a residential plot for

Kshs. 25,000/=.

That the 1

st

Defendant sold plots to non members as it had a loan and was disposing off its land to pay off the loan. That the 1

st

Defendant was selling both commercial and residential plots. That the agreement dated

7

th

December 2014

, is altered in ink and it was one

Kitavi

who cancelled some sections of the documents. However, he did not counter sign against the alterations. That the alterations is for the word residential to commercial and he had been in possession of the documents for many years . That the 1

st

Defendant offered to refund his money or give him an alternative plot or let him keep the plot so long as he would add

Kshs. 5,000/=.

Further that the plots were

100 by 100

M

and the sale agreement shows the plots measuring

40 by 100 meters

.That the 2

nd

Defendant’ s plot’s description and acreage are different from his and he had paid for both plots. That he paid

Kshs.20,982

for

plot No. 2789

and on

7

th

December 2004

he again paid

Kshs. 4,000/=

but he was not given a beacon certificate. That he did not take possession of the land, and the 1

st

Defendant never gave him a transfer document . That his plot measures

100 by 100 meters

and the 2

nd

Defendant’s measures

40 by 100 meters.

That he made payments twice totaling to

Kshs.25,000/=.

That Plot

No. 2789

is indicated as

Plot No. 43.

That all residential Plots measured

100 by 100 metres

and the sale agreement showed that the Society could repossess the plots if they were not fully paid for. That he paid the full amount and repossession did not apply to him. That

Kitavi

wrote letters after he finished paying for the plots.

DEFENCE CASE

DW1 Mwangangi Kitavi

adopted his witness statement dated

1

st

December 2017

and averred that he was an Administrative Manager at

Muka Makuu Ltd.

That in

1991,

the Company took a loan from

Cooperative Bank

in order to raise funds. That in September

1991,

the Society called a meeting and the Management Committee authorized the Society to sell its commercial plots to members in order to repay the loan. That in addition, each member would contribute

Kshs. 10,000/.

Further that the commercial plots measured

40 by 100 metres

. That the minutes referred to shopping centers which were the commercial plots. That in the year

2004,

the Plaintiff purchased a residential plot, but the area in which the plot was, was for commercial plots. That he bought a plot measuring

100 by 100 metres

which was a residential plot for

Kshs.25,000/= .

That the commercial Plots costed

Kshs.30,000/=.

He denied that the correction on

D Exhibit 1

, were done by him and further that the receipts were for purchase of a commercial plot.

That on

11

th

October 2007,

the Society held a meeting and reference was made to the sale of the plots. That the sale of the suit property was one of the plots being revoked as per Minute No. 6 of the said meeting. Further that the cancellation of the sale was not in compliance with the Society’s regulations. That the Society stated that the residential Plots should not have been sold and an inquiry was done via a meeting was held on

15

th

August 2008,

the inquiry was adopted.

That the Plaintiff bought his plot at

Kshs.25,000/=

and was allocated a Commercial plot instead of a Residential plot. That he was requested to pay the difference of

Kshs. 5,000/=

and in the alternative, he was offered a Residential plot, but he never took any of the offers. That according to the sale agreement, if the purchaser failed to repay the entire purchase price, the Society would repossess the land.

That the Plaintiff’s plots were allocated to

Margaret Ngao

after she paid the full purchase price for the Commercial plots as the Plaintiff failed to comply with the Society’s directives. That

Margaret Ngao

paid the full purchase price which was by then

Kshs. 80,000/=.

That there was a sale agreement between the 1

st

Defendant and

Margaret Ngao

for a plot measuring

40 by 100 meters

which were measurements for a commercial plot.

That as per the report dated

1

st

October 2008

, against

No. 33,

it read L

eonard Kimaita Ref No 2788

and

2789,

and the resultant plots are

42

and

43

in Sisal factory . That the size of plots allocated to the Plaintiff were

100 by 100 M

for

Kshs. 25,000/=

and they issued a receipt showing that the Plaintiff’s balance was nil . He acknowledged that the Plaintiff had fulfilled his part of the Contract. That they sold the plot to the 2

nd

Defendant on

25

th

June 2007,

That before a transfer was done, payment was to have been done. That the 2

nd

Defendant bought the plot on

25

th

June 2007

, a year after she had been allocated. Further that the letters to the Plaintiff were handwritten and that they did not result from any Society’s deliberations, though there was a decision by the Society that the agreement between it and the Plaintiff be revoked as per

minute 68.

That the receipt for the purchase by the 2

nd

Defendant did not have the 1

st

Defendant’s letter, but were stamped as the letters to the Plaintiff but the sale agreement had the letter head.

That the Surveyor did not put a date on the beacon certificate. That the date should be the one when the 2

nd

Defendant was shown the plot. That the Certificate was not dated and so it lacked validity. Further that the 2

nd

Defendant bought plots from the 1

st

Defendant and she paid the purchase price and was issued with a receipt. It was his further testimony that the Plaintiff never took possession of the plots and that he was shown smaller plots in the wrong area. That they had revoked the initial sale by the time the plots were sold to the 2

nd

Defendant by an Administrative action. That under

plots 42

and

543

in Sisal Factory, the 2

nd

Defendant is indicated as the owner and the Ministry of Co-operative Societies recognized the 2

nd

Defendant as the owner. That according to the document, the Plaintiff and the 2

nd

Defendant do not own the plots in question. That the 1

st

Defendant’s management committee did not conduct its affairs properly.

That the Plaintiff bought land in

2004

, and the case was filed in

March 2008

and the inquiry is dated

1

st

October 2008

. That the decision to compile the inquiry report was made in the year

2007.

Further that the plots were sold to members and non-members. That the receipts issued to the Plaintiff were not headed but stamped and that the General Manager also wrote to the Plaintiff.

DW2 Margaret Ngao,

the 2

nd

Defendant adopted her witness statement dated

9

th

October 2013

as part of her evidence . It was her testimony that she purchased plots from the 1

st

Defendant vide sale agreement in respect to

Plots No. 42 and 43

and she paid

Kshs. 80,000/=

for each plot. That she was shown the plots and after she finished paying the purchase price in

2007

, the plots were issued to her upon being shown the beacon certificates . That her plots are Commercial plots and after the inquiry was done she was not told to vacate. That she lives on the plots which she has fully developed and if her ownership is nullified, it would be unjust. Further that the beacon certificate has

plot 31, 42

and

43

sisal area , members no and the date of issue was

18

th

May 2006

. That the Plaintiff found her fencing the plot in

2007,

and informed her that the plot was his. Further that she took possession of the plot in

June 2007,

and the inquiry report indicates that she was among the beneficiaries.

The parties filed written submissions and thereafter the trial Magistrate delivered her determination on

9

th

October 2018,

and allowed the Plaintiff’s (1

st

Respondent’s) claim and entered Judgment for the Plaintiff and held that ;

“In summary, I find the Plaintiff and the 1

st

defendant entered into a valid land sale agreement, in which he bought plots No. 42 and 43 at Kshs.25,000/= each. I find that as a result of the Contract , the said plots belong to the Plaintiff and the 1

st

defendant therefore had no capacity to sell the same plots to the 2

nd

Defendant

.”

The Appellant was aggrieved by the decision and by a

Memorandum of Appeal

dated

26

th

October 2018,

he filed the instant Appeal and sought for orders that;

1) The Appeal be allowed.

2) The Judgment delivered on the

9

th

Day of October 2018

be set aside and the suit be ordered for retrial.

3) The Costs of and occasioned by the Appeal be provided for.

4) Such further orders as the Honourable Court may deem fit to grant .

The Appeal is based on the grounds that;

1) The Learned Magistrate erred and misdirected herself in Law and fact by ignoring the 2

nd

Defendant ‘s evidence totally on the issue of the size of the plots claimed an d the plots purchased by the 2

nd

Defendant.

2) The Learned Magistrate erred and misdirected herself in Law and fact by failing to appreciate that the 2

nd

Defendant has a valid claim over the subject property.

3) The Learned Magistrate erred and misdirected herself in Law and fact by awarding the Plaintiff commercial plots which measure 40 by 100 ft when he had indeed purchased plots of 100 by 100 ft from the 1

st

Defendant.

4) The Learned Magistrate erred and misdirected herself in Law and fact by failing to appreciate that the Appellant’s plots measure 49 by 100 ft whereas the Respondent’s plots measured 100 by 100 ft and therefore different.

5) The Learned Magistrate erred and misdirected herself in law and in fact by declaring the plots sold by the 1

st

Defendant to the 2

nd

Defendant as being null and void.

6) The Learned Magistrate erred and misdirected herself in law and in fact by awarding the Plaintiff with the Appellant’s plots which measure 40 by 100 ft and not 100 by 100ft .

The Appeal was canvassed by way of written submissions. The Appellant through the

Law Firm of S.K Muendo & Company Advocates

filed her written submissions dated

13

th

August 2020,

and submitted that the 1

st

Respondent did not tender any document to show the connection between

Plots No. 2788 and 2789

with

Plot No. 42 and 43,

respectively as the 1

st

Respondent pleaded that he had purchased Plot No.

2788

and

2789

in

2004

and sought for a declaration that

Plots No. 42

and

43

at the 2

nd

Respondent’s farm belonged to him. Further that the trial Court ignored the Appellant’s evidence that she was the legal owner of the suit properties. Further that the Court admitted altered documents and failed to appreciate Appellant’s evidence.

That the trial Court erred in awarding the 1

st

Respondent

2 plots

, which did not support his claim and neither did they support his description. That there was no doubt that the plots

No. 2788

and

2789

were different plots from

Plots 42 and 43

and hence the trial’s Court decision was misguided. To buttress her argument, the Appellant relied on the case

of Independent Electoral and Boundaries Commission & Another …Vs… Stephen Mutinda Mule & 3 others (2014) eKLR,

where the Court of Appeal Considered with approval two foreign cases on the issue of parties being bound by their pleadings.

The 1

st

Respondent in opposing the Appeal filed his written submissions through the

Law Firm of Waithira Mwangi & Co Advocates

dated

8

th

September 2020,

and submitted that from the Contract document dated

7

th

December 2004

and the Sale repayment forms , it was clear on what was bought, what was the size, what was the purchase price and the link between

Plots No. 48 and 49

and Numbers

2788 and 2789

. That the correspondence from the 2

nd

Respondent confirmed that plots numbers

2788 and 2789

refer to

plots No. 42 and

43 . Further that the Appellant in her own submissions in the lower Court admitted that the plots were first sold to the 1

st

Respondent.

Further that the 2

nd

Respondent had no authority to re allocate the suit properties to the Appellant and without his consent. That the act of renaming the plots as commercial plots as opposed to residential plots could not invalidate the first sale nor defeat his claim over the plots. The 1

st

Respondent relied on the case of

National Bank of Kenya …Vs… Pipelastic Samkolit (K) Ltd & Another (2001)

where the Court held that a Court of Law cannot purport to rewrite a Contract between the parties. That the parties are bound by the terms of their contract unless coercion, fraud or undue influence are pleaded.

Further that no variation agreement was ever signed by both the 1

st

and 2

nd

Respondent to include an additional further

Kshs. 5,000/=

for each plot. That both parties were bound to honour the sale agreement that was entered into on

7

th

December 2004..

Further that no minutes were produced to show that there was a resolution to charge an additional expense .

Further that the Contract of sale between the Appellant and the 2

nd

Respondent was

null ab initio

as by the time the Appellant claims to have bought the suit properties on

25

th

June 2007

, they already belonged to him. He relied on the case of

Mount Kenya Investment Limited…Vs… Allan Ngethe & 2 others (2009)eklr

where the Court relied on

M’Mukanya …Vs… M’Mbijwe(1984) KLR 761

where the Court held that;

‘..

once a person has been allocated a plot , and pays the rent due and is given the plot number the plot becomes his and does not have to be in physical possession .”

The Court was urged to dismiss the Appeal.

The above analysis summarizes the pleadings and evidence before the trial court. Further it captures the Grounds of Appeal and submissions by the parties herein. The court is called upon to make a determination of this Appeal filed by the Appellant as provided by

Section 78 of the Civil Procedure Act;

This court is called upon to analyze the whole evidence ,evaluate, assess, weigh, investigate and scrutinize the said evidence and give its own independent conclusion.

However, the court will be alive to the fact that it neither saw nor heard the witnesses and and the findings of the trial court must be given due deference unless it falls foul of proper evaluation of the evidence on record or the trial Magistrate acted on a wrong principle in arriving at the findings. See the case of

Selle –vs- Associated Mobi Boat Co (1968) EA 123

:-

An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has 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 (

Abdul Hameed Saif vs. Ali Mohamed Sholan

(1955), 22 E. A. C. A. 270).

Further the court will only interfere with the decision of the trial court where it is shown that the trial court misapprehended the applicable law and failed to take into account the relevant facts or took into account an irrelevant fact. See case of

Ocean Freight Shipping Company Ltd –vs- Oakdale Commodities Ltd, Civil Appeal No. 198 of 1995

):-where the Court held that;

“…..and for a full bench to interfere with the exercise of the discretion, it must be shown that the discretion was exercised contrary to law, i.e. that the single Judge misapprehended the applicable law, or that he failed to take into account a relevant factor, or took into account an irrelevant one or that on the facts and the law as they are known, the decision is plainly wrong”

The court finds the issues for determination are;

1) Whether there was a Nexus between

Plots 42 and 43

and Numbers

2788 & 2789

.

2) Whether there was a Binding Contract between 1

st

and 2

nd

Respondents over the suit properties.

3) Who is the Legal Owner of the Suit properties.

4) Whether the Appeal is merited.

5) Who should bear the cost of the Appeal.

1.

Whether there was a Nexus between Plots 42 and 43 and Numbers 2788 & 2789

.

The Appeal is manly predicated on the issue that the trial Court misdirected itself in finding that the

Plots No. 42

and

43

as claimed by the 1

st

Respondent were the same as the

Plots No. 2788

and

2789

as pleaded being the ones he had bought from the 2

nd

Respondent.

It is not in doubt that the 1

st

Respondent bought plots

No. 2788

and

2789

from the 2

nd

Respondent. It is the 1

st

Respondent’s contention that though the sale agreement refer to plots numbers

2788

and

2789,

what was marked on the ground were plots

No. 42

and

43.

The Court has seen the letter dated

5

th

July 2007

referenced “

Commercial Plots NO. 42 and 43 Sale Agreement No. 2788 and 2789 Sisal Factory

‘the sad letter was from

Mr. Kitavi and

the same bore the stamp of the 2

nd

Respondent. The Court has also seen subsequent letters dated

12

th

July 2007.

20

th

July 2007

and

30

th

July 2007

indicating that plots

No. 42 and 43

are the same as

No. 2788 and 2789.

More compelling is the fact that

DW1

who was a representative of the 2

nd

Respondent confirmed that the Appellant had been allocated land that had initially been allocated to the 1

st

Respondent. The Appellants’ beacon certificate produced in evidence shows that she had been allocated three portions amongst them

Plots No. 42

and

43.

Therefore, there is no doubt in the Court’s mind that there is a

Nexus

between

Plots No. 42

and

43

and Numbers

2788

and

2789

and the same refers to the same plots respectively.

2.

Whether there was a Binding Contract between 1

st

and 2

nd

Respondent over the suit properties

Vide a sale agreements dated

7

th

December 2004

, the 1

st

and 2

nd

Respondents entered into two separate sale agreements over the suit properties . The Court has seen the sale agreements. The said agreement are in writing and are signed by the parties. It thus met the requirements of

Section 3(3)

of Law of Contract Act which states as follows:-

3 (3) No suit shall be brought upon a contract for the disposition of an interest in land unless—

(a) the contract upon which the suit is founded—

(i) is in writing;

(ii) is signed by all the parties thereto; and

(b) the signature of each party signing has been attested by a witness who is present when the contract was signed by such party:

Provided that this subsection shall not apply to a contract made in the course of a public auction by an auctioneer within the meaning of the Auctioneers Act (Cap. 526), nor shall anything in it affect the creation of a resulting, implied or constructive trust.

Further the agreement for sale contains the names of the parties, the description of the property, the purchase price and the conditions thereto. A look at the said sale agreement confirms that the same is a valid sale agreement which is enforceable by the parties. See the case of

Nelson Kivuvani....Vs....Yuda Komora & Another, Nairobi HCCC No.956 of 1991

, where the Court held that:-

“the agreement for sale of land which contains the names of the parties, the number of the property, the purchase price and the conditions attached thereto, the obligations, express or implied, of each of the parties and signed and witnessed by two witnesses who signed against their names amount to a valid contract

”.

All the above ingredients are met in the instant sale agreements entered between the 1

st

and 2

nd

Respondents and therefore the sale agreements between the two are valid. Having found that the two had valid sale agreements, it follows that the parties are bound by the terms of their Contract. See the case of

National Bank of Kenya Ltd ...Vs...Pipeplastic Samkolit (K) Ltd & Another, Civil Appeal No.95 of 1999 (2001) KLR 112 (2002) EA 503

, where the Court held that:-

“A court of law cannot re-write a contract between the parties. The parties are bound by the terms of their contract

unless coercion, fraud or undue influence are pleased and proved”.

It is not in doubt that the 2

nd

Respondent was bound by the terms of the Contracts that

Plots No. 2788

and

2789,

which the Court has already held are the same as

Plots No 42 and 43

were to be sold to the 1

st

Respondent for

Kshs. 25,000/=

. Further it could only repossess the suit property if there was failure by the 1

st

Respondent to pay total payment within the period given.

The 2

nd

Respondent in its letters sought to change the terms of the Contracts by requiring the 1

st

Responded to add more money or be given an alternative plot. By writing the said letters, the 2

nd

Respondent forgot that it was bound by the sale agreement that it had voluntarily entered into and it had a duty to fulfil the conditions thereon. The 2

nd

Respondent could not unilaterally cancel the transaction or invoke new terms in the contract such as payment of

Kshs.10,000

. See the case of

Kenya Breweries Ltd....Vs...Natex Distributors Ltd, Nairobi HCCC No.704 of 2000

, where the Court held that:-

“Parties to a written contract are bound by its terms and the invocation of nonexistent clause to terminate a contract is not legitimate even though there is a termination clause. However much a party resents the behavior of another party to the contract, it cannot terminate it without following the laid down procedure”

.

Further in the case

Mjomba Agencies Limited..Vs…Mvule Investment Company Ltd (2017) eKLR

the Court held that;

“..a party who wishes to vary or modify a contract does not do so by preparing another contract , he does so by doing a variation agreement which must state whether or not the new agreement replaces or supersedes the earlier agreements…… My considered view is that if parties intended to incorporate the earlier agreement in the alter one they would have done so by way of an addendum or by referring to it which has not done been done in this case

.”

It is clear, that there was no modification from the agreement initially made by the 1

st

and 2

nd

Respondents and thus the parties were bound by the terms of their agreement. The 2

nd

Respondent could not change the said agreement without the consent of the 1

st

Respondent.

3.

Who is the Legal Owner of the Suit properties

It is the Appellant’s contention that the suit properties belonged to her having entered into an agreement of sale with the 2

nd

Respondent and having paid the full purchase price. While it is not in doubt that the Appellant and the 2

nd

Respondent entered into a sale agreement over the suit properties, it is clear that the 1

st

Respondent had already been allocated the suit property. Therefore, the said properties were not subject to allocation by any other person. See the case of

M’Ikiara M’Mukanya & another vs Gilbert Kabere M’Mbijiwe [1983] eKLR;-

“The plot they were granted was not available for allocation since 1967 when it was granted to the respondent. The council had no plot No 58 at Nkubu Market to allocate and it could not allocate what it did not have. This may explain the fact that although the appellants exhibited the letter of indication requesting them to report at the Council's office and be shown the plot allocated to them, they neither spoke of nor exhibited in their evidence any Letter of Allocation granting to them the plot, which the respondent exhibited. The alleged allocation to the appellants is of no effect in law. On the other hand the respondent's interest whether as a licensee, which he is not, or a lessee, which I say he is, was never determined by the Council, and he remains the legal owner of plot No 58, Nkubu Market.”

This Court finds and holds that the suit properties had already been allocated to the 1

st

Respondent and could not be allocated to the Appellant. Consequently the Court finds that the 1

st

Respondent is the legal owner of the suit properties.

4.

Whether the Appeal is merited

In her Appeal the Appellant had sought for various orders including that the Judgment delivered on

9

th

October 2018

be set aside and the suit be ordered for retrial. The Appellant has not demonstrated to this Court why the suit should go for retrial and therefore the Court finds that the said prayer is not merited.

In its Judgment the trial Court allowed the 1

st

Respondent’s claim as prayer in the Plaint dated

22

nd

March 2008

. In essence the Court found that the 1

st

Respondent was the owner of the suit properties. As per the analysis of the evidence by this Court, it has come to the same conclusion as the trial Court. Consequently, the Court finds and holds that the Appeal herein is not merited.

5.

Who should bear the cost of the Appeal

As provided in

Section 27 of the Civil Procedure Act

the Court has discretion to grant costs. Costs usually follow the event unless there are special circumstances, that would warrant the deviation of the same. The Court finds that the 1

st

Respondent is the successful party and he is therefore entitled to the costs of the Appeal.

Having now carefully considered the available evidence tendered at the lower Court, having evaluated the same and coming to its own independent conclusion, this court finds and holds that the trial Magistrate did not

err

or misapprehend the facts and evidence on record. Consequently, this Court finds that the Appeal is

not

merited and the same is dismissed entirely with costs to the 1

st

Respondent.

It is so ordered.

Dated, signed and Delivered at

Thika

this 17

th

day of December 2020

L. GACHERU

JUDGE

17/12/2020

Court Assistant – Lucy

ORDER

In view of the declaration of measures restricting court operations due to the

COVID-19

Pandemic, and in light of the directions issued by His Lordship, the Chief Justice on

15

th

March 2020

, this

Ruling

has been delivered to the parties online with their consents. They have waived compliance with

Order 21 rule 1

of the

Civil Procedure Rules

which requires that all judgments and rulings be pronounced in open Court.

With Consent of and virtual appearance via video conference – Microsoft Teams Platform

M/s Muendo for the Appellant

No appearance for the 1

st

Respondent

No appearance 2

nd

Respondent

L. GACHERU

JUDGE

17/12/2020