Abok v National Social Security Fund (NSSF) & 2 others

2. e. An order directed to the 2nd and 3rd Defendants to facilitate registration of known as Plot No B2/1 from Kwadenga Self Help Group which later turned out to be registered under the Defendant’s name known as Tassia LR 97/1155/002/1 in the name of the Plainti. f. Mesne prots. g. Costs of this suit. h. Any other relief that honourable court may deem just to grant. The suit was opposed by the 1st Defendant who led a defence dated June 9, 2021. No response was led by the 2nd and 3rd Defendant. The Plainti ’s case. 3. The Plainti’s case is contained in his plaint dated February 24, 2021, together with his witness statement sworn on February 24, 2021 and list and bundle of documents dated February 24, 2021 and a further list of documents dated October 4, 2021. 4. It was the Plainti’s case that he entered into a tenant purchase agreement with the 1st Defendant for a consideration of Kshs 550,000/. It was also pleaded that the 1st Defendant entered into a sale agreement with a 3rd party who has since erected a perimeter wall without the Plaintis knowledge and/or consent. The Plainti further pleaded that he has made various attempts to resolve the issue but the same has been unsuccessful. 5. During the hearing of the case, the Plainti adopted his witness statement and bundle of documents led herein as part of his evidence in chief. He testied that he purchased the suit property from Kwa Ndege Self Help Group and the 1st Defendant had agreed that they open new account and register with NSSF and pay market rates for the plot. 6. It was the Plaintis further testimony that the 1st Defendant gave him a personal account No xxxx for the purposes of remitting payment. It was also stated that he was given a notice of default in payment which was recovered to pay Kshs 124,000/- and he subsequently made payment on 11th December, December 30, 2008 and January 15, 2009. He further stated that he did not receive the tenant purchase agreement and hence therefore he did not receive the tenant purchase agreement and hence therefore he did not pay Kshs 10,000/-. It was also his testimony that he was in actual occupation of the suit property. The Plainti concluded his evidence in chief by stating that he was verbally instructed by the 1st Defendant to stop making payments. 7. Upon cross-examination, he stated that he did not have the tenant purchase agreement of the property since he was not given any. He also conceded that Kwa Ndege was not the owner of the property. On further cross-examination, he also stated that he did not sign any tenant purchase agreement with the 1st Defendant. He also stated that he made payment of Kshs 263,000/- to 1st Defendant. He also conceded that he does not have any certicate of title in respect to the property. 8. On re-examination, he stated that he was given account number xxxx in his name which he was supposed to make payments. On further re-examination, he stated that he had no details of the third party who had faced o his property. He also claried that his claim seeks for cancellation of the agreement between NSSF and the third party and that he had not received any letter from the 1st Defendant cancelling or rescinding the agreement. He also reiterated that he was never informed that the plot had been sold to a third party. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14775/eng@2022-11-10 2

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The 1st Defendant’s case. 9. The 1st Defendant led a defence dated June 9, 2021. The 1st Defendant also led a witness statement sworn by Tobias Ombado on February 10, 2022. 10. The 1st Defendant averred that Kwa Ndege Self Help Group had no legal interest in the property since the group had grabbed their property and allocated it to its members which action was illegal. 11. It was also averred that, the 1st Defendant allocated the Plainti Plot Number Tassia LR 97/1155/002/1 on March 27, 2003 at a consideration of Kshs 586,590.00 which he paid only Kshs 263,000/- and defaulted. 12. It was also the 1st Defendant’s case that on default, the Plainti was not given possession by the 1st Defendant and no agreement was entered into. On December 1, 2008, the 1st Defendant gave the Plainti a notice of default requiring him to collect and sign tenant purchase agreement within 30 days failure to which the property will be repossed. The notice was not complied with and the property was sold to another willing buyer. 13. Tobias Ombado a loans ocer testied on behalf of the 1st Defendant. He adopted his witness statement sworn on February 10, 2022 as part of his evidence in chief. 14. On cross-examination, he stated that the Plainti’s account was not active and neither was he sure whether the default notice had been received by the Plainti. He also stated that the details of the third part was in the le which information he had not brought to this court. He also stated that the Plainti was issued with a receipt in respect to the payments made by him. 15. On re-examination, he stated that the Plainti was never given a tenant purchase agreement because he never paid the sum of Kshs 10,000/- which was required before collecting the said agreement. The Plainti ’s submissions. 16. 17. The Plainti led his written submissions dated July 29, 2022 through the rm of Otieno Arum & Co Advocates. Counsel submitted on two issues which he urged the court to consider: i. Whether the Plainti has made a prima facie case. ii. Whether the Plainti is the legal owner of the suit property. Counsel submitted that the Plainti had testied buying the suit property from Kwa Ndege Self Help Group before the same reverted to the 1st Defendant. 18. It was also submitted that he paid the sum of kshs 10,000/- which was required before issuance of the agreement. The same was paid on December 11, 2008 and the Plainti was issued with receipt No T010041226 on account No xxxx. 19. Counsel also submitted that on December 1, 2008, the 1st Defendant issued default notice of Kshs 124,000/- which was placed under the funds tenant purchase scheme. The Plainti was advised to collect the Tenant Purchase Scheme agreement within 30 days upon which he visited the 1st Defendant’s oces in vain but the same was not given to him. 20. Counsel submitted that where land has been allocated and the allotee has complied with the conditions therein then the same cannot be available for re-allocation to another person. Counsel also made reference to the case of Giella –Vs- Cassman Brown (1973) EA 358 and prayed for injunction orders against the Defendants. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14775/eng@2022-11-10 3

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The submissions for the 1st Defendant. 21. The 1st Defendant led its submissions dated September 5, 2022. Counsel submitted on the following singular issue, Whether the Plainti is entitled to the reliefs sought. 22. It was submitted that the Plainti’s suit is predicated upon a tenant purchase scheme allegedly entered between the Plainti and the 1st Defendant yet the same was never produced in court. Counsel submitted that in the absence of the agreement, the Plainti’s claim cannot stand in light of section 3(3) of the Law of Contract Act as read with Section 38 of the Land Act. The said provision states as follows: ' 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 led 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.' Reliance was made to the cases of Leo Investment Ltd- Vs- Estuarine Estate Ltd (2017) eKLR, Patrick Tarzan Matu & Another –Vrs- Nassim Shariff Abdulla & 2 others (2009), Silverbird Kenya Limited –Vs- Junction Ltd & 30 others (2013) eKLR and Daudi Ledama Morintat –Vs- Mary Christine Karie & 2 others (2017) eKLR 23. It was also submitted that the Plainti is seeking for adverse orders against a third party who is not a party to the suit. Counsel argued that the same would be an aront to the basic tenants of the rules of natural justice and reliance was made to the case of Peter Kinyua Kimemia & 3 others –Vs- Embakasi North Constituency Development Fund Account Manager & 2 others (2021) eKLR. 24. It was also argued that no fraud was proved during the hearing. Counsel however admitted in the 1st Defendants submissions that indeed the Plainti had paid a sum of Kshs 263,000/- but defaulted since he did not pay the entire purchase price which default prompted the 1st Defendant to issue notice to repossess the property and subsequently sale to another party. 25. Counsel for the 1st Defendant concluded her submissions by urging the court to dismiss the suit since the Plainti’s claim had not been proved on a balance of probability as required. The Submissions of the 2ndand 3rd Defendant. 26. The 2nd and 3rd Defendant despite being served never led any written submissions and neither did they participate in the proceedings. Analysis and determination. 27. I have considered the pleadings, the evidence and the submissions made by the Plainti and the 1st Defendant and the issues arising for determination in the suit are as follows: i. Whether the Plainti has proved his case on a balance of probabilities and if so; https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14775/eng@2022-11-10 4

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ii. What are the appropriate reliefs? 28. The Plainti pleaded that at all material times he was in possession no the suit property known as Plot No B2/2 from Kwa Ndege Self Help Group which was later registered under the 1st Defendant’s name as Tassia LR 97/1155/002/1. 29. According to the Plainti he had made payments towards purchase of the said property and on default he has never given the tenant purchase agreement but instead the 1st Defendant repossed the same and sold to a third party. 30. It is trite law that he who alleges must prove. This is set out under Section 107(1)(2) of the Evidence Act, which provides as follows: 31. ' (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.' Section 3(3) of the Law of Contract Act provides 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: (b) (i) is in writing; (ii) is signed by all the parties thereto; and 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 aect the creation of a resulting, implied or constructive trust' 32. The court will be guided by the following. In the present case, the Plainti did not produce any tenant purchase scheme the basis upon which he could have demonstrated his ownership to land. The Plainti’s suit primarily seeks a declaration and ownership in respect to the suit property known as Plot B2/1 now Tassia LR No 97/1155/002/1. 33. Counsel for the Plainti submitted that since the Plainti’s suit sought a declaration as to ownership of property, the Plainti ought to have produced the said tenant purchase agreement and Counsel referred to Section 3 as read with Section 38 of the Law of Contract Act. 34. In view of the foregoing, it is the nding of this court that the Plainti has not proved his case to the required standard. 35. On whether or not the Plainti is entitled to the reliefs sought, the Plainti sought for several reliefs which were pleaded. However, during the hearing of the suit, the 1st Defendant’s witness relying on his witness statement admitted that the Plainti paid a sum of Ksh 263,000/- towards the acquisition of the suit property which can be refunded. It’s my view that while this specic relief was not pleaded by the Plainti, it is an issued which emerged during trial and considering that the same was admitted by https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14775/eng@2022-11-10 5

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the 1st Defendant, I will proceed to grant the same. This Court relies on the well known case of Odd Jobs vs Mubia (1974) EA 476 where it was stated as follows: ' With respect to the learned Judge, that issue does not ow from the pleadings. However, that notwithstanding, a court may base a decision on an unpleaded issue where, as here, it appears from the course followed at the trial, that the issue has been left to the court for decision – see Odd Jobs vs Mubia (1974) EA 476.' The same issue was also addressed by the Court of Appeal in the case of Transworld Safaris (K) Limited v Robin Makori Ratemo [2008] eKLR 36. It was not disputed by the 1st Defendant that the Plainti had made some payments towards the acquisition of the property. As earlier stated, it was admitted by the 1st Defendant that a sum of Kshs 263,000/- had been paid by the Plainti. In view of the foregoing, I will direct that the same be refunded to the Plainti. However, had the Plainti specically pleaded for the same, I would have further directed that it be refunded with interests at court rates. 37. On the issue of costs, the same is a discretion of the court and considering the circumstances of the instant case, I will direct each party to bear own cost of the suit. Final orders 38. In conclusion, I make the following nal orders in disposing the Plainti’s suit herein. a. The Plainti is entitled to a refund of Kshs 263,000/- b. The reliefs not expressly granted are declined. c. Each party to bear own costs of the suit. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON 10TH NOVEMBER, 2022. E.K. WABWOTO JUDGE In the presence of: Mr. Arum for the Plainti. N/A for the 1st Defendant. N/A for the 2nd and 3rd Defendant. Court Assistant: Caroline Nafuna. E.K. WABWOTO JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14775/eng@2022-11-10 6

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