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ELCDismissedNot stated in judgment (Plaint dated and filed 4th November 2014)· [2021] KEELC 4613 (KLR)

James Muriithi Maina v Shekale Bwana [2021] KEELC 4613 (KLR)

Environment and Land Court
29 January 2021
JOJ.O. Olola
1,673 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A property buyer who couldn't prove he paid Kshs 1.8 million lost his case entirely, because the court requires solid proof of payment.

What this practically means

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Executive summary

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The Plaintiff sued the Defendant for Kshs 1,800,000/-, general damages, costs and interest, claiming that by a Sale Agreement dated 29th February 2012 he purchased from the Defendant a house without land erected on Land Portion No. 49/II/MN Mombasa Kisauni; that he paid the purchase price but the Defendant failed to hand over vacant possession, having allegedly sold the house to a third party, one Khadija Ahmed Abdalla. The Defendant denied owning any such house, denied entering any sale agreement, denied receiving the purchase price directly or through any agent, and disowned any power of attorney granted to Margaret Wanjiru, the woman who executed the agreement as his attorney. At trial each party was the sole witness. The Plaintiff testified that he paid the cash purchase price in Margaret's house and that the agreement was later executed between him and Margaret at the offices of Muli & Ole Kina Advocates. The Defendant testified he was in Germany, never sold the house, and did not know the agent or how the law firm obtained his documents. The court held that where a defendant disowns an attorney through whom a transaction was allegedly conducted, the plaintiff had to give a proper chronology and clear evidence of payment to the principal or the donee of the power of attorney. There was no acknowledgment of receipt from the Defendant; the agent was neither sued nor called to corroborate; the advocate who attested the agreement was not called; and no document examiner was summoned to verify signatures. Applying the rule that he who alleges must prove, the court found the Plaintiff had not discharged the burden of proof on a balance of probabilities. The suit was dismissed with costs to the Defendant on 29th January 2021 at Malindi.

Key legal issues

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01

Whether the Plaintiff proved payment of the purchase price of Kshs 1,800,000/- to the Defendant

Holding

The Plaintiff failed to prove payment; there was no acknowledgment of receipt from the Defendant, the alleged agent was not sued or called as a witness, and the advocate who attested the agreement was also not called

Reasoning

The Plaintiff alleged he paid cash in the agent Margaret's house but produced no acknowledgment from the Defendant. He could not state where the house was or the exact date of payment. The agent who executed the agreement was neither sued nor called to corroborate, and the advocate before whom it was executed was likewise not called. The court was left to guess whether the attorney had been appointed, which the law does not permit.

p. 2
02

Whether the Defendant appointed Margaret Wanjiru as his attorney

Holding

This was not proved; the Defendant disowned the attorney and neither the agent, the advocate, nor a document examiner was called to establish the power of attorney

Reasoning

The Defendant vehemently denied giving any power of attorney to Margaret Wanjiru and denied being in the country. The Plaintiff did not call the agent, the advocate Mrs Lucy Ole Kina who executed the agreement, or a document examiner to confirm the signatures and handwriting. Without such evidence the court could not engage in guesswork as to the attorney's appointment, and the Plaintiff's case collapsed.

p. 3

Legal principles established

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  • He who alleges must prove; the burden of proving payment lies on the party alleging it
  • Where a transaction is said to have been conducted through an attorney who is disowned by the principal, the plaintiff must adduce clear evidence, calling the attorney, the advocate who prepared the instrument, or a document examiner

Court orders

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  1. 1.The Plaintiff's suit is dismissed
  2. 2.The Defendant shall have the costs of this suit
Jurisdiction invoked
Original civil jurisdiction over the suit (Plaint filed 4th November 2014)

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, "James Muriithi Maina v Shekale Bwana [2021] KEELC 4613 (KLR)", Case Analysis (2021). Not stated in judgment (Plaint dated and filed 4th November 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4613/eng@2021-01-29

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