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ELCPartially AllowedNot stated in judgment (suit over Bungoma/Tongaren/491)· [2019] KEELC 2287 (KLR)

Gertrude N Wanyonyi v Mary Nekesa Nandokha & 2 others [2019] KEELC 2287 (KLR)

Environment and Land Court

18 July 2019

MNMwangi Njoroge

1,875 words in judgment

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The bottom line

A Kenyan court confirmed an 80-year-old land buyer owns six acres she paid for, even though the money went through a third party's bank account.

What this practically means

Executive summary

This was an ex-parte first-instance land suit before the Environment and Land Court at Kitale (Mwangi Njoroge, J) concerning parcel Bungoma/Tongaren/491. The plaintiff, an 80-year-old purchaser, alleged that in July 2009 the original defendant, Alfred Nandokha Sindani (since deceased), sold her 8 acres at Kshs. 240,000/= per acre under a written agreement dated 2/7/2009; she paid Kshs. 1,440,000/= into the Equity Bank account of John Nyongesa Kundu as the agreement stipulated, was put into partial possession, and sought a declaration that she was entitled to 6 acres, transfer by the defendants (the deceased's legal administrators), costs and interest. The defence, though filed, was never proven as the defendants did not testify despite service; the original defendant had denied the 8-acre transaction, admitting only a 2-acre sale for Kshs. 480,000/=, and blamed Kundu, who was charged in Webuye PMC Criminal Case No. 855 of 2011. The court framed four issues and found, on the unchallenged agreement and evidence, that the plaintiff intended 8 acres but paid only for 6; that payment through Kundu's account was authorized by the agreement; and that she was entitled to 6 acres. Judgment was entered against the defendants jointly and severally: a declaration of entitlement to 6 acres, an order for subdivision and transfer including the portion occupied by the plaintiff, execution of documents by the Deputy Registrar in default, and costs to the plaintiff.

Key legal issues

Extent of the land purchased (8 or 2 acres)

Holding

Though the plaintiff intended to buy 8 acres, the payments made (Kshs. 1,440,000/= at Kshs. 240,000/= per acre) equate to 6 acres, which she is entitled to.

Reasoning

The written agreement dated 2/7/2009 provided for 8 acres at Kshs. 1,920,000/= and acknowledged a Kshs. 480,000/= down payment. The defendant's own advocates' letter confirmed the 8-acre intention, and John Kundu acknowledged receipt of payments. The unchallenged evidence showed total payments of Kshs. 1,440,000/=, equal to 6 acres at the agreed rate.

p. 3

Validity of payment through John Kundu's bank account

Holding

The plaintiff was entitled to pay the purchase price through John Kundu's account because the sale agreement so stipulated.

Reasoning

The sale agreement, which was never denied or disputed by evidence, prescribed payment into John Kundu's account. Payments were evidenced by handwritten acknowledgments on the agreement witnessed by two witnesses on each occasion. The defendant's attempt to distance himself from that channel failed, as he had admitted the arrangement in his third-party application.

p. 3

Entitlement to a declaration and transfer of 6 acres

Holding

The plaintiff, having paid for 6 acres and taken possession, is entitled to a declaration and an order for subdivision and transfer.

Reasoning

The court credited the plaintiff with land worth the sum she had paid, holding that she cannot be held accountable for loss of moneys paid into the authorized account. Possession was already with her over part of the land, and the defendants, as administrators of the deceased seller's estate, are bound to complete the transaction by subdivision and transfer.

p. 3

Legal principles established

A purchaser who pays the purchase price into the bank account stipulated in the sale agreement, as authorized, complies with the agreement and cannot be held accountable for loss of the moneys by a third party.
An unchallenged sale agreement is binding; where no evidence disputes its contents, payment made in the manner it prescribes is proper.
A plaintiff who establishes her claim on a balance of probabilities is entitled to judgment against the defendants jointly and severally.

Court orders

1.The plaintiffs' claim against the defendants succeeds.
2.A declaration that the plaintiff is lawfully entitled to six (6) acres from title number Bungoma/Tongaren/491; the 1st, 2nd and 3rd defendants, as legal administrators, shall subdivide Bungoma/Tongaren/491, carve out a parcel of 6 acres to include the area currently occupied by the plaintiff, and transfer the 6 acres to the plaintiff.
3.An order that the defendants shall execute all documents necessary to effect the subdivision and registration of the plaintiff as proprietor of 6 acres out of Bungoma/Tongaren/491, in default of which the Deputy Registrar of this court shall execute all such necessary documents.
4.The defendants shall bear the costs of this suit.

Jurisdiction invoked: Original civil suit on a contract for sale of land (plaint dated 14/4/2012, amended 1/3/2019); no constitutional or statutory jurisdictional provision invoked in the judgment

Key timeline

Practical implications

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Cite this brief

Caselaw, "Gertrude N Wanyonyi v Mary Nekesa Nandokha & 2 others [2019] KEELC 2287 (KLR)", Case Analysis (2019). Not stated in judgment (suit over Bungoma/Tongaren/491). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2287/eng@2019-07-18

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