By a plaint amended on 10^th November, 1998 and filed in court on 12^th November, 1998, the Plaintiff prayed that judgment be entered against the Defendants jointly and severally for – 

All the parties to the suit filed their respective pleadings as required by law. The matter failed to take off on several occasions, and it was finally fixed for hearing on 5^th October, 2010. When it was called out for hearing on that date, only the Plaintiff was in attendance. The court noted that by an affidavit of service sworn on 19^th July, 2010 and filed in court on the same date, the Defendants’ Advocates were duly served with a hearing notice which they received on 13^th July, 2010. Indeed, their office date- stamp is endorsed to the effect that the hearing notice was received in their offices at 2.24 pm.   Being satisfied that they had reasonable notice to attend court on hearing date, but failed to do so, the court decided to proceed ex parte. 

The Plaintiff called only one witness, one JOB OKUNA OYUGI, a Director of the Plaintiff Company. The witness referred to documents which were attached to the Plaintiff’s list of documents and the Plaintiff’s supplementary list of documents, which documents were produced in evidence as exhibits. Referring to the agreement for sale between the Plaintiff and the 1^st Defendant, the witness said that the sale was in regard to the Plaintiff’s property known as L.R. No 205/81, and it was dated 9^th June, 1997. According to that Agreement, the sale price was Kshs 30 million. Special condition No. 5 of the said agreement read as follows –

“5. On completion the purchaser shall pay the purchase priced as follows –

(a)      The sum of Kshs 11,325,600/- to Post Bank Credit Limited (in Liquidation) to clear the liabilities of Roths Kenya Ltd. with the said Bank.

(b)     The balance shall be paid by the Purchaser as the Vendor shall direct.”

By referring to the Purchaser as Shivali Holding Ltd and/or nominee, the agreement for sale permitted the transfer to be made to the 1^st Defendant’s nominee, which in this case was Niva Properties Ltd, the 4^th Defendant herein.

          In his testimony, PW 1 admitted that special condition 5(a) (supra) was duly complied with by the Defendants by the payment of Kshs 11,325,600/- to Post Bank Credit Ltd and consequently the Plaintiff’s property was transferred and registered in the name of the 1^st Defendant’s nominee who was the 4^th Defendant. The witness also referred the court to a letter dated 22^nd December, 1997, addressed to the 4^th Defendant by the Purchaser’s Advocate, which letter was attached to the Plaintiff’s supplementary list of documents. The said letter confirmed that the transfer of the suit property had been duly registered in the name of the 4^th Defendant and under cover thereof forwarded the original title to the said Defendant.  

The said letter reiterated further the contents of special condition No. 5 by stating as follows – 

          “Please do note that the purchase price was to be paid as follows –

Since by 23^rd June, 1988 the Plaintiff had not been paid the balance of the purchase price, PW 1 referred the court to a letter of the same date addressed to the Advocates for the Purchaser by the Vendor’s Advocates. In the said letter, the Vendor’s Advocates demanded payment of the balance of the purchase price within 7 days failing which they would take “appropriate legal steps to safeguard” their clients interests. Having not received the balance of the purchase price, the Plaintiff subsequently filed this suit on 24^th August, 1998, simultaneously with an application for injunction against the Defendants. The court record shows that when the application came for hearing on 2^nd November, 1998, the parties recorded a consent order which read as follows –

“IT IS ORDERED BY CONSENT

1) THAT a temporary injunction be and is hereby issued restraining the Defendant/Respondents by themselves, their agents, servants, or any of them whatsoever from alienating, selling, disposing and or dealing with the property known as L.R. No. 205/81 (original No. 67/1) Nairobi (the “premises”) until further orders of this court.

2) THAT the Defendant/Respondent be and is hereby restrained from collecting and or receiving rent from the tenants of the premises.

3) THAT the tenants of the premises be and are hereby ordered to pay rent to the Plaintiff/Applicant in accordance with the current lease of the premises.”

It was the evidence of PW 1 that although these orders have never been discharged, the Purchaser (4^th Defendant) charged the suit property to Guardian Bank (3^rd Defendant). On discovering that development, the Plaintiff’s lawyers wrote to the Defendant’s Advocates on 2^nd February, 2005, to enquire about the said disobedience and breach of the court order by the Defendants. This letter elicited no response. The charge document is annexed to that letter and was marked as No. 3 among the Plaintiff’s documents. All this was being done contrary to the subsisting court order. 

The final document referred to by the witness was the certificate of title which shows the charge to Guardian Bank Ltd for Kshs 28,000,000/- registered as entry No. 17 against the certificate of title. In spite of being in breach of a court order, the Defendants have not purged their contempt. For the above reasons, the witness prayed for Prayers (d) and (e) as stated in the Amended Plaint filed on 12^th November, 1998, and costs of the suit. 

From the above deposition, and as explained at the beginning of this judgment, the Defendants did not attend court at the hearing of this case and the witness was not cross-examined. The absence of cross-examination not withstanding, the witness gave his evidence in a straight forward manner and impressed the Court as being honest and truthful. That evidence was not contradicted in any manner and I therefore find that the Plaintiff has proved its case on a balance of probability. I note that in the case of EDWARD MUGAMBI v. JASON MATHIU, Civil Appeal No 286 of 2002, the Court of Appeal stated as follows –

          By reason of the foregoing, I find that the Plaintiff is entitled to judgment in terms of Prayers (d) and (e) of the Amended Plaint. I accordingly enter judgment for the Plaintiff as follows –

(ii) The Registrar of Titles be and is hereby directed to forthwith rectify the register in respect of LR No. 205/81 Nairobi, cancel the entries relating to the transfer to the Defendants and to reinstate the status quo in the register prior to 9^th June, 1997 and insert thereby the Plaintiff as the Registered owner of the said property.