REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

 AT NAIROBI

ELC CIVIL CASE NO. 1227 OF 2013

HESBON K. LIMISI.........................................................................PLAINTIFF

=VERSUS=

DELILAH ACHIENG MATHEWS......................................1^ST DEFENDANT

ARGWINGS KODHEK OCHIELY.....................................2^ND DEFENDANT

THE CHIEF LAND REGISTRAR, NAIROBI...................3^RD DEFENDANT

JUDGMENT

1. By a plaint dated 11^th November 2013, the plaintiff has sued the defendant for orders:-

 (a) A declaration that the sale agreement entered into between the 1^st defendant and the 2^nd defendant for the purchase and sale of Flat F Block MF 32, Madaraka estate, Nairobi within LR NO. 25980 on 10^th May 2013 is an illegality and is null and void by virtue of the prior existence of the agreement dated 22^nd February 2010 between the plaintiff and 1^st defendant.

(b) An order directing the 3^rd defendant to effect a transfer in the register of Flat no. F situated on Block No. MF32 in Madaraka estate, Nairobi within LR No. 25980 to the plaintiff’s name for which the deputy registrar of the high court should be ordered to execute the said transfer on behalf of the 1^st defendant if need be.

(c) An order for the rendering of vacant possession of the said Flat No. F situated on Bloc No. MF 32 Madaraka estate Nairobi, within LR No. 25980 to the plaintiff.

(d) An order for the payment of mesne profits at the rate of Kshs.30,000/- per month together with the commensurate periodic, expected rent increments overtime till the rendering of vacant possession of the said house no. F situated on Bloc No. MF 32 in Madaraka estate, Nairobi within LR No. 25980 to the plaintiff.

(e) An order for general damages for trespass on the suit premises.

(f) Exemplary and punitive damages.

(g) Interest on prayer (d), (e) and (f) from the date of filing of this suit till payment in full.

(h) Costs of the suit.

2. Upon being served with copies of plaint and summons to enter appearance the 1^st defendant entered appearance and filed a statement of defence dated 24^th October 2013.

3. The 2^nd defendant also entered appearance on 29^th October 2013 and filed a statement of defence dated 20^th November 2013.  The 3^rd defendant was sued by virtue of being the custodian of land records in the Republic of Kenya. He neither entered appearance nor filed a defence.

4. It is the plaintiff’s case that he entered into an agreement with the 1^st defendant to purchase Flat NO. F situated on Block No. MF 32 in Madaraka Estate within LR No. 25980 at a consideration of Kshs.4.4 Million which was formalized by a sale agreement dated 22^nd February 2010. It was further agreed that the 1^st defendant would pursue the National Housing Corporation for a lease which would effectively be transferred on the plaintiff’s name.  After the plaintiff completed payment, he entered into possession, subsequently entered into a tenancy agreement with the 1^st defendant at monthly rent of Kshs.30,000/-

5. The 1^st defendant in her defence dated 24^th October 2013 and in her tenstimony in court admitted that she sold the suit apartment to the plaintiff.  It is her evidence that she had agreed to refund Kshs.5.5 million to the 2^nd defendant so that she could surrender the title to the plaintiff.

6. The 2^nd defendant maintains that he is a purchaser for value having paid the full purchase price to the 1^st defendant.  Subsequently, the 1^st defendant executed a transfer in his favour with consent from National Housing Corporation, the head lessor.

7. PW1, Hesborn K. Limisi told the court that he entered into a sale agreement with the 1^st defendant for the purchase of an apartment MF 32 Door F Madaraka estate. He paid Kshs. 2.1 million. The total purchase price was Kshs.4.4 million. He took possession of the house by 14^th June 2010.  He entered into a tenancy agreement with the 1^st defendant at a monthly rent of Kshs.30,000/- which she paid without fail.  He was surprised to learn in September 2013 that a third party was in the house.  Upon inquiring from the 1^st defendant he learnt that she had borrowed money from the 2^nd defendant, which she was to refund. She claimed the agreement between her and the 2^nd defendant was just a security for the debt. He then decided to institute this suit.

8. In support of his case he relied on the documents in the list of documents.  They were produced as exhibit P1 to P31 respectively.  His contention is that the 1^st defendant had no house to sell to the 2^nd defendant.

9. The 1^st defendant, Delilah Achieng Mathews, on her part told the court since the plaintiff bought the house first, she was willing to transfer it to him. She relied entirely on her statement of defence and the witness statement.

10. The 2^nd defendant, DW2, Argwings Kodhek Ochiely told the court that he saw an advertisement in the Standard Newspaper for sale of a house in Madaraka Estate for Kshs. 6.3 million. He called the number provided and spoke to Mark Okoth (DW1).  They met on 20^th October 2012 at Madaraka Shopping Centre and he (Mark) led him to the suit apartment. There he met the 1^st defendant, who confirmed that she was selling the house. They agreed at a purchase price of Kshs. 5.5 million. He paid the full purchased price upon confirming from the National Housing Corporation that the 1^st defendant owned the house. He paid the full purchase price and the 1^st defendant effected transfer on his favour.  He was however unable to register the transfer as the plaintiff also claimed to be the owner. He relied on his witness statement and the documents in his list which were produced as exhibits D2-D16 respectively.

11. He denied that he conspired with the 1^st defendant to defraud the plaintiff of the said house. He also denied that he lent the 1^st defendant any money but that he bought the house.  He prays that the plaintiff’s suit be dismissed.

12. The 2^nd defendant (DW3), called two witnesses, DW2 John Mark Okoth, a real estate agent told the court that the 1^st defendant, informed him that she was selling the house.  She confirmed she had all the documents.  On 16^th October 2012 he placed an advertisement on the Standard Newspaper. DW2 became interested and he introduced him to the 1^st defendant. He said thereafter he was paid his commission.  He produced a copy of the advertisement as exhibit D1. He said he was not aware that the house was being claimed by someone else.

13. DW4 Pamela Atieno, a legal assistant with National Housing Corporation produced the records for the suit apartment. She told the court that National Housing Corporation approved the sale between the 1^st defendant and 2^nd defendant. She further told the court that the 2^nd defendant pays rates and he is the recognized owner. She told the court that the plaintiff’s name does not appear on their records. She further told the court that the house is still registered in the 1^st defendant’s name.

14. I have considered  the pleadings, the evidence on record, the written submissions made on behalf of the respective parties and the authorities cited. The issues for determination are:-

i. Whether the plaintiff, subsequent to the sale agreement dated 22^nd February 2010 between himself and the 1^st defendant, took possession of the suit premises and entered into a tenancy agreement between himself and the 1^st defendant. 

ii. Whether the sale agreement between the 1^st defendant and 2^nd defendant is a nullity, illegal and a fraud.

iii. Is the plaintiff entitled to the reliefs sought?

iv. Who should bear costs?

15. DW1, when cross examined by the plaintiff’s counsel told the court that she did not have to notify National Housing Corporation that she had sold the house to the plaintiff. DW4 Pamela Atieno, a legal assistant with National Housing Corporation was cross examined on this issue by the plaintiff’s counsel. She told the court that the 1^st defendant was free to sell the house to whoever she wished. DW4 also confirmed that house is still in the 1^st defendant’s name.  It appears to me that National Housing Corporation cannot decline a consent once it is sought.

16. It is not in doubt that the plaintiff has demonstrated that he entered into a sale agreement with the 1^st defendant on 22^nd February 2010 for the purchase of the apartment for Kshs. 4.4. million, which he paid. Thereafter the 1^st defendant executed a transfer in his favour and allowed him to take possession fo the suit apartment.  Subsequently thereto, the 1^st defendant made a request to remain in the apartment and accordingly, he signed a tenancy agreement with her dated 14^th June 2013 for rental sum of Kshs.30,000/- per month.  This evidence was not challenged by the 1^st defendant or the 2^nd defendant.  In the case of Lawrence P Mukeri Mungai (Attorney of Francis Mwoki Mwaura and AG & Others [2017] eKLR.  The Court of Appeal stated thus:-

“…..the 2^nd respondent was allegedly issued with a title deed for the same property in 1996.  A property cannot have two valid title deeds.  Even assuming that the second title had been issued by mistake, the first one in time prevails, see Gitway Investment Ltd vs Laymal Ltd & 3 Others 2006 eKLR"

I am guided by the above authority.

17. In the instant suit, it should be noted that the plaintiff’s sale agreement was the first in time. The 2^nd defendant entered into a sale agreement with the 1^st defendant much after the plaintiff had purchased the suit property.  There was no notification from the 1^st defendant that she wished to rescind the contract.  In her defence she does not deny that she sold the apartment to the plaintiff.

18. It is on record that a third party is in occupation of the suit apartment. The said third party was put in occupation by the 2^nd defendant upon executing the subsequent sale agreement with the 1^st defendant.  Having found that the plaintiff is entitled to the suit apartment the 1^st defendant and by extension the third party in occupation are trespassers on the suit apartment.  I find that the plaintiff is entitled to general damages for trespass.  In the case of Philip Ayaya Aluchio vs Chrispinus Ngayo [2014] eKLR  J Obaga stated:-

“…….the issue which arises is as to what is the measure of such damage.  It has been stated that the measure of damages for trespass is the difference in the value of the plaintiffs’ property immediately before and immediately after the trespass or the cost of restoration whichever is less.  (See Hostler vs Greenpark Development Co. 986 W 2d 500 (No Ct App. 1999). The plaintiff herein did not adduce any evidence as to the state of his property before and after trespass…….however I find that the plaintiff is entitled to

 general damages for trespass.  I award a nominal sum of Kshs.100,000 as general damage for trespass. The cost will go to restoration of the suit land to its former state”.

I am guided by the above authority.

19. The suit apartment herein is let out at a monthly rent of Kshs.30,000/-.  I award Kshs. 300,000/- , general damages for trespass which I think is reasonable.

20. The upshot of the matter is that, I find that the plaintiff has proved his case on a balance of probabilities.  I enter judgment in his favour as against the defendants as follows:-

(a) A declaration is hereby issued that the sale agreement entered into between the 1^st defendant and the 2^nd defendant for the purchase and sale of Flat F Block MF 32, Madaraka estate, Nairobi within LR NO. 25980 on 10^th May 2013 is an illegality and is null and void by virtue of the prior existence of the agreement dated 22^nd February 2010 between the plaintiff and 1^st defendant.

(b) An order is hereby issued directing the 3^rd defendant to effect a transfer in the register of Flat no. F situated on Block No. MF32 in Madaraka estate, Nairobi within LR No. 25980 to the plaintiff’s name for which the deputy registrar of the high court should be ordered to execute the said transfer on behalf of the 1^st defendant if need be.

(c) An order is hereby issued for rendering of vacant possession of the said Flat No. F situated on Bloc No. MF 32 Madaraka estate Nairobi, within LR No. 25980 to the plaintiff.

(d) An order for the payment of mesne profits at the rate of Kshs.30,000/- per month till the rendering of vacant possession of the said house no. F situated on Bloc No. MF 32 in Madaraka estate, Nairobi within LR No. 25980 to the plaintiff.

(e) General damages for trespass on the suit premises of Kshs.300,000/-

(f) Interest on prayer (d), (e) and (f) from the date of judgment till payment in full.

(g) Costs of the suit.

It is so ordered.

Dated, signed and delivered in Nairobi on this 6^th day of February 2020.

.............................

L. KOMINGOI

JUDGE

In the presence of:-

Mr. Sumba advocate for the Plaintiff

1^st defendant present in person

Ms Otieno for Mr. Kiplagat advocate for the 2^nd defendant

Kajuju - Court Assistant