Njagi v Kimani & 2 others

Ruiru Kiu/Block 2 /3696. She paid for consent fees of Kshs. 700/- on behalf of herself and the 2nd Respondent as she now appeared in the transfer as a co-owner of the plot now renamed Ruiru Kiu/ Block 2/Githunguri/5957. She also paid stamp duty and transfer fees for registration for the plot in her name jointly with the 2nd Respondent on 29/01/2009 and awaited for issuance of the title. 5. However contrary to all her eort and fullment of her part of the contract, the 2nd Respondent with collusion of the Appellant fraudulently, illegally and or irregularly caused the said plot to be registered in the name of the 2nd Respondent depriving the 1st Respondent of her property Ruiru Kiu/Block 2/ Githunguri/5957 measuring 40 x 60. 6. In a Statement of Defense dated 31/10/2018 the Appellant blamed the 1st Respondent for refusing to be teamed up with any other person in order to comply with the conditions of the Land Ministry and the Survey Department and as a consequence of which the 1st Respondent was to be refunded the purchase price by the 3rd Respondent. 7. At the trial, Veronica Wanjiku Kimani, 1st Respondent testied as PW 1. She said that she wanted her land which was sold to her by the 3rd Respondent since she had entered into an agreement dated 2/10/2005 and a proposal for subdivision and her plot was C. That she had paid the full purchase price but the Appellant sold the suit property to the 2nd Respondent yet her name is on the list as No. 6 and she was to be given the plot. That the 2nd Respondent is putting up a house on the disputed plot and she has a title. She produced a list of documents which were marked as PEx Nos 1-11. She concluded by stating that she needed her land or to be compensated at current market value of the plot. 8. Mary Wambui Muroki, the 3rd Respondent testied as DW 1. She told the Court that she sold the plot to the 1st Respondent for Kshs. 30,000/- and that the 1st Respondent paid in full. That the 1st Respondent later called her and told her that her plot had been sold by the Appellant to the 2nd Respondent. She said that she knows the Appellant because she had also sold him a plot and he paid Kshs. 30,000/- but his plot was A. That she and the 1st Respondent went to the Tribunal and the Appellant was ordered to give the 1st Respondent her plot but that he refused. 9. She testied that she entrusted the Appellant with assisting her together with her sister to ensure that titles for individual plot owners were processed. She also stated that they were summoned to the Chief and that the Appellant conrmed that the suit property was not his but he was only assisting in subdivision. She produced the said letter as DEX 1. She concluded by stating that she would want the land to revert back to Veronica, the 1st Respondent. 10. In cross-examination she conrmed that she sold to 1st Respondent plot No. “C” and the larger parcel was Ruiru/Ruiru Kiu Block2/3696 and that the PEx 2 is an acknowledgment by the Appellant. She told the trial Court that all the purchasers gave authority to the Appellant to assist in the transfer, but not to sign or issue transfers in their names. 11. The Appellant herein and the 2nd Respondent did not attend the trial conducted at the Senior Resident Magistrate’s Court. 12. The Appellant was found liable by the trial Court and has, through an amended Memorandum of Appeal dated 18/03/2019, complained through fteen Grounds of Appeal that;- the trial Court was wrong to nd that the 3rd Defendant sold the suit property to the Plainti yet the land had no demarcations; it failed to nd the 2nd Defendant was working under the directions of the 3rd Defendant, that it failed to nd that the plots were merged after the 3rd Defendant had refunded the Plainti her money and thus had no claim against the 2nd and 3rd Defendants; that the Learned Magistrate awarded the Plainti four times her plot; for not dealing with salient facts such as issues of fraud, if there was https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18674/eng@2025-03-04 2

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existence of trust between 2nd Defendant and Plainti; failed to state the size of plot and for what amount thus contradicting himself in his Judgment and for reaching a holding against the evidence and the law. 13. As a rst appeal, the Court is duty bound to make a re-appraisal, rehearsal and re-analyze the entire record and come up with independent ndings as to facts and the law, while giving credit to the trial Court, which had an opportunity to see and hear the witnesses rst hand. See Selle & Another vs. Associated Motor Boat Co. Ltd & Others (1968) E.A 123 and Abok vs. Gitobu Imanyara & Another vs. A.G & Others (2016) eKLR. 14. It is trite law that parties have the freedom to enter into a sale agreement or a contract in law, whose terms are binding. The cardinal rule is that Courts do not rewrite contracts and enforce the same so long as they do not suer from some defect such as mistake, illegality, or voidability. Section 3 (3) of the Law of the Contract Act provides that all transactions for disposition of land must be in writing, be duly signed by all the parties and attested to by a witness who was present during the transaction. See Rufale vs. Umon Manufacturing Co. (1918) L.R. 1 KB 592. 15. As to breach of contract in Mwangi vs. Kiiru (1987) eKLR, the Court cited Lord Diplock that every failure to perform primary obligations was a breach of contract and attracted a secondary obligation on the part of the party in breach to pay monetary compensation for the loss sustained by him in consequence of the breach. 16. In Collins vs. Ogango (Civil Appeal No. 427 of 2018 (2024) KECA 19 (KLR) 25.1.2024 (Judgment), liquidated damages of 10% of the purchase price had been awarded to the Respondent; specic performance was granted against a 2nd Defendant to transfer the land. The Court cited Black’s Law Dictionary 9th Edition page 213 that breach of contract refers to a violation of a contractual obligation by failing to perform one's promise by repudiating it or by interfering with another party's performance, which gives rise to a claim for damages. 17. The Court cited with approval Delilal Kerubo Otiso vs. Ramesh Chander Ndingra (2018)eKLR, that where the conduct of the Appellant is oppressive, highhanded, outrageous, callous, underhand, and bordered on fraud with no intention of honoring the agreement, general damage would be tenable. The Court further adopted the Supreme Court Practice (1985) Vol. 1 page 33, that a liquidated demand is in the nature of a debt due and payable or by virtue of a contract and if ascertained or specied, requires investigation beyond mere calculation. The Court said that the award was founded correctly and soundly as an appropriate sanction for unbridled mischief in the circumstances. 18. Further, the Court said that as a general rule, a purchaser is entitled to recover damages at large where a seller refuses to implement an agreement for any reason other than a defective title and compensation contemplated by the contract or which would reasonably have been in the contemplation of the parties as likely to be wasted if the contract is broken. See Openda vs. Ann (1984) KLR 208. 19. The Court cited Ritho vs. Karithi & Another (1988) KLR 237 that it is lawful in breach of any covenant to award damages to the party injured either in addition to or in substitution for an injunction or specic performance. 20. Similarly, the Court further cited Hadley vs. Baxendale (154) 9 Exh 214 that where two parties have made a contract in which one of them has broken, the damage which the other ought to receive, should be such as may fairly and reasonably be considered either as arising naturally from the breach itself or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made a contract as the probate result of its breach. The Court said that since the liquidated damages https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18674/eng@2025-03-04 3

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had been expressly provided for in the agreement of sale, the Court was in order to award them on top of its specic performance. 21. In this appeal, the sale agreement dated 2/10/2005 was admitted by Plainti and the 3rd Defendant since the 2nd Defendant who is the Appellant herein did not attend Court. The Plainti and the 3rd Defendant testied that the sale agreement is binding to them. It was lawfully and willingly executed and attested to infront of the parties. The Plainti’s eort to get back the land led her to take the dispute to Ruiru Land Disputes Tribunal Case Number RUR/LDT/07/2011 where it was decided that the Plainti should be given back her land or be compensated at the current market value. The decision of the Tribunal is dated 8/9/2011. 22. In Macharia Mwangi Maina & 87 Others vs. Davidson Mwangi Kagiri (2014) eKLR, the Court held that equity should suer no wrong without a remedy, no man shall benet from his wrongdoing, and equity detests unjust enrichments. The Appellant knew that he had obtained more money and was supposed to facilitate the documentation to ensure those who had purchased the suit properties including the 1st Respondent got their parcels. 23. In this appeal, the Appellant did not deny that he obtained more money to assist with the documentation of obtaining titles for the 1st Respondent instead he chose to blame the 3rd Respondent. Worse still he chose not to attend Court, I am not sure why he thought it best not to attend the trial. In my considered view, it was the Appellant who violated the terms and conditions of the sale agreement by not undertaking or honoring his promise or obligations on time or at all as regards consents, subdivisions and transfer forms. 24. Clearly, the Appellant was out to take advantage of his own mistakes or unconscionable conduct. The burden of proof rests on he who wants the Court to believe the existence of specic facts. It was upon the Appellant to prove that he was not the one who was to blame for the 1st Respondent’s failure to get her jointly owned title deed. He failed to show up in Court to explain and present his facts. 25. Based on my analysis above, while relying on the abovementioned decisions and also anchoring my determination on the principles enshrined in Articles 2, 4 and 10 of the Constitution in respect to social justice and equity, I nd that since the Appellant took over the issue of the suit property when they merged the plots to meet the minimum land sized for acquisition of title and even sold the suit property to the 2nd Respondent, it was proper that he be the one ordered to refund to the Plainti a sum of Kshs. 180,000/- being the value of her plot at the time that it was sold to the 2nd Respondent. I nd that the 1st Respondent is indeed entitled to refund of the purchase price she paid at the current value of the said plots. 26. I hence nd that the Learned Magistrate did not err by ordering him to refund the said purchase price. Since the Appellant had already sold the land to a third party, I nd that the Learned Magistrate was right in declining to make an order requiring that the 1st Respondent should be given the plot she paid for since it was now not available. 27. However, it is trite that in a contract, a party should not maintain a position of advantage over the other, and at this juncture since the Appellant in processing the title decided to remove the name of the 1st Respondent and instead gave the title to the 2nd Respondent, it is only just and equitable if he is directed to refund at the market value and plus interest at commercial rates from the time of ling the suit in the lower Court until payment in full. In the circumstance, I nd the Appeal unmerited and proceed to make the following orders:: a. This Appeal be and is hereby dismissed. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18674/eng@2025-03-04 4

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b. That the costs of the Appeal is awarded to the 1st Respondent. Orders Accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA THIS 4TH DAY OF MARCH 2025 VIA MICROSOFT TEAMS. ……………………… MOGENI J JUDGE In the presence of:Mr. Gekenge for the Appellant Mr. Gitari for the 1st Respondent Mr. Mitambo for the 2nd Respondent 3rd Respondent - Absent Melita - Court Assistant ……………………… https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18674/eng@2025-03-04 5

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