Omboya v Zumzum Investments Ltd & 2 others; Omondi (Interested Party)

has also ignored to transfer the said land to him or to the 3rd Defendant. 2nd Defendant has also ignored to have the charge discharged. The 3rd Defendant has even ignored to push and compel the 1st Defendant tohave the land transferred to her. The 2nd Defendant has continued having the charge in place notwithstanding that the charge also covers other adjoining lands. As a result of the Defendants' acts the Plainti has continued to be deprived the usage of his land and has suered loss and damage. The Plainti prays for judgment to be entered against the Defendants for: a. An order directing the 3rd Defendant to execute a discharge of charge of the land known as Title No; CR 33831, Subdivision CR 17051/3, Subdivision No 7446(ORIG 1482/120) Section 11 measuring approximately 0.0306Ha -or thereabouts. b. An order directing the 1st and 3rd Defendants to execute a transfer of the said land (Title No; Cr 33831, Subdivision Cr 17051/3, Subdivision No, 7446(ORIG 1482/120) Section 11 MN) in of the Plainti. c. Damages for their failure to transfer the land to the Plainti since April 2004. d. Costs of this suit. 2. The 3rd Defendant in her statement of defence denies ever selling the suit property to the Plainti on April 29, 2004 and further denies that she had time received Kshs 2,200,000 or any part thereof from the Plainti either directly or otherwise as alleged. The 3rd Defendant avers that the Plaintis suit is incompetent, defective and/or bad in law insofar as it is founded on a non-existent and or unexecuted contract for the sale of land and the same ought to be struck out with costs. The 3rd Defendant avers that suit is time barred by virtue of the provisions of Section 4 of the Limitation of Actions Act, Cap 22. 3. The Interested Party avers that there has never been any sale of the suit property between the Plainti and the 3rd Defendant. It is the Interested Party's assertion that the suit property was sold to him on 12th May, 2014 and he paid stamp duty for the same awaiting the registration of the transfer in his favour. By virtue of having bought the suit property from the 3rd Defendant and being in occupation and/or possession without his quite enjoyment of the aforesaid property being interfered with and the conrmation by the 3rd Defendant that she sold the property to the Interested Party and not the Plainti it is the Interested Party's claim that he is the bona de purchaser and owner of the suit property. The Interested Party’s counterclaim against the Plainti is for a declaration that he is the legal owner of the suit property. An order to remove the caution registered against the property. An order for the Transfer for which stamp duty had already been paid by the Interested Party to be registered in favour of the third party accordingly. I nd that though the Interested Party has stake in this case he was not a party ab initio and cannot be awarded substantive orders in this suit but is free to pursue the same with the parties involved. 4. This court has considered the evidence and the submissions therein. In the present case an agreement of sale between Purity Achieng Ouko as the vendor and Tom Otieno Omboya as the purchaser has been adduced in evidence. This agreement is neither dated nor executed by both parties. It is only the Plainti who has signed the agreement, and the said signature has not been attested by a witness. The Plainti maintained that there was a contract executed between himself and the 3rd Defendant and is entitled to an order of specic performance on the basis of the said agreement of sale. 5. The Law of Contract Act clearly stipulates the requirements for a valid instrument to convey an interest in land. Section 3 (3) of the Law of Contract Act (Cap 23 of the Laws of Kenya) stipulates that; “ No suit shall be brought upon a contract for the disposition of an interest in land unless— https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19004/eng@2023-07-25 2

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a. b. 6. the contract upon which the suit is founded— 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:” The contract was signed by only one Party, the Plainti. A fact he admitted during cross-examination and contended that the 3rd Defendant refused to execute the contract. Informed by the legal framework set herein above, the court cannot give eect to an agreement for sale of the suit property on the ground that it was not signed by the 3rd Defendant. The Court of Appeal in Kukal Properties Development Limited vs Tafazzal H Maloo & 3 others (1993) eKLR held that; “ The execution of a legal document is a matter of fact. It is either executed or not executed. This was an agreement for the disposition of interest in land and had to comply with Section 3 (3) of the Law of Contract Act… The agreement in question was not signed by the appellant or anyone authorized by the appellant to sign it… It is therefore plain beyond argument that there was no concluded agreement both in fact and in law between the appellant and the Porbunderwallas which could be enforced by a decree for specic performance.” 7. This agreement was not duly executed by both parties hence it was neither binding nor enforceable against the 3rd Defendant. An unexecuted agreement by parties cannot be deemed to be executed by reference to correspondences prior of after the date of the intended agreement. Therefore, the letter dated September 16, 2004 from Sachdeva & Company advocates to the Plainti cannot be said to make the unexecuted contract enforceable. There is no evidence adduced that the Plainti paid and the 3rd Defendant received either the deposit or the balance towards the purchase of the suit premises. In Leo Investment Ltd vs Estuarine Estate Ltd (2017) eKLR it was held that; “ It is trite law that a contract consists of three fundamental elements; oer acceptance and consideration. In the suit under consideration, a statutory interest would have crystalized if the formal statutory requirements had been satised and the essential elements of a contract existed. In the present suit, apart from lack of execution by the vendor, the cheque forwarding 10% deposit was returned unencashed. In essence, consideration did not pass. To this extent, the Plainti did not acquire a crystalized legal interest in the suit property. There is no evidence of any of the key features of an equitable relationship or crystalized equitable interest in the suit property in favour of the Plainti. Besides non-compliance with the statutory formal requirements of Section 3(3) of the Law of Contract Act, the contract lacked completeness in terms of essential elements. Possession was not given to the Plainti and purchase price was not accepted by the vendor. To this extent, the Plainti acquired neither a legal nor an equitable interest in the suit property.” 8. I nd that the unsigned sale agreement did not comply with the requisite conditions set out in Section 3 (3) of the Law of Contract Act to warrant it to be deemed a valid transaction that would confer legal or equitable interest onto the Plainti that can be enforced vide an order of specic performance. Therefore, I nd that the Plainti has failed to prove his case of a balance of probabilities and his suit is dismissed with costs. It is so ordered. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19004/eng@2023-07-25 3

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DELIVERED, DATED AND SIGNED AT MOMBASA THIS 25TH JULY 2023. N.A. MATHEKA JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19004/eng@2023-07-25 4

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