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ELCAllowedMiscellaneous Civil Application (Notice of Motion dated 24th May 2017) — Nairobi ELC· [2018] KEELC 2590 (KLR)

Christoper Irungu Wambugu v Catherine Wairimu Mugo t/a Mugo Wairimu Advcoates [2018] KEELC 2590 (KLR)

Environment and Land Court
28 May 2018
1,410 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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An advocate holding a failed land sale deposit in Kenya must refund the buyer—the money is not part of a deceased seller's estate and cannot await succession.

What this practically means

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Executive summary

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The plaintiff, an intending purchaser of LR No. Nairobi/Block 1/10/339 at Thome Estate, paid a deposit of Kshs.4,000,000 to the defendant, an advocate acting for the vendor Michael Chege Thuo (deceased), to be held as stakeholder. Of this, only Kshs.1,000,000 was authorized for release to the deceased (Kshs.500,000 under the agreement of 2nd January 2015 and a further amount under an addendum of 27th February 2015). The transaction collapsed when a search revealed the title was registered in three names, the deceased's title was worthless, and the property was sold to a third party. The deceased's wife refunded Kshs.995,000 to the defendant's firm, but the defendant refused to refund the plaintiff's deposit. The plaintiff moved the court under a Notice of Motion dated 24th May 2017 seeking to strike out the defendant's defence and enter judgment per the Plaint. The defendant argued the defence raised triable issues, claiming the money belonged to the deceased's estate and releasing it would amount to intermeddling. The court, applying Transcend Media Group v IEBC on frivolous defences and Kent Libiso v Cirson Trust on stakeholder deposits, found the defence a sham intended to delay the case. It held the money was refundable to the purchaser and not part of the deceased's estate, particularly since the wife had already refunded the deceased's receipts. The defence was struck out and judgment entered for the plaintiff in terms of prayers (b), (c) and (d) of the Plaint.

Key legal issues

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01

Whether striking out a defence was justified

Holding

Yes - the defence was a sham intended only to delay the case, striking out was warranted despite the principle that striking out is for the clearest of cases

Reasoning

The court found it undisputed that the respondent received Kshs.4,000,000 as stakeholder and was authorized to release only Kshs.1,000,000 to the deceased. The transaction collapsed; the deceased's wife refunded the Kshs.1,000,000 received by the deceased, showing the funds were not intended to go through succession. The defence had all the characteristics of frivolousness as summarized in Transcend Media Group v IEBC and the stakeholder was obliged to refund the deposit per Kent Libiso v Cirson Trust.

p. 2
02

Whether the deposit monies formed part of the deceased's estate requiring succession proceedings

Holding

No - the money was refundable to the purchaser once the transaction collapsed, and the wife's refund of the deceased's receipts demonstrated this

Reasoning

The court reasoned that the deceased's wife had already refunded the Kshs.995,000 the deceased had received, which would not have occurred if the funds were subject to succession. The respondent held Kshs.4,000,000 as stakeholder for the purchaser, and the transaction having failed, the money was refundable to the applicant, not part of the estate.

p. 2

Legal principles established

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  • Deposit monies held by a vendor's advocate as stakeholder must be refunded to the purchaser if the transaction fails
  • An advocate stakeholder who retains deposit monies after collapse of a transaction cannot claim the money belongs to a deceased's estate

Court orders

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  1. 1.Striking out of the defendant's defence
  2. 2.Judgment entered for the plaintiff in terms of prayers (b), (c) and (d) of the Plaint

Authorities

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Cases cited (2)

  • Transcend Media Group Limited Vs Independent Electoral & Boundaries Commission (IEBC)
    eKLR
  • Kent Libiso & Another Vs Cirson Trust Co.Ltd & 2 Others
    (2013) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court (not expressly stated in judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Christoper Irungu Wambugu v Catherine Wairimu Mugo t/a Mugo Wairimu Advcoates [2018] KEELC 2590 (KLR)", Case Analysis (2018). Miscellaneous Civil Application (Notice of Motion dated 24th May 2017) — Nairobi ELC. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2590/eng@2018-05-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.