Etirikia v Ekandi (Environment and Land Appeal E076 of 2021) [2023] KEELC 55 (KLR) (18 January 2023) (Judgment)

Transaction Type

Key Facts

Issues

• The court evaluated if the trial magistrate's ruling was contrary to the evidence and legal principles. This included reviewing the procedural compliance of the counterclaim and the factual findings related to the breach of contract.
• The court examined whether the trial magistrate was justified in concluding that the respondent did not breach the sale agreement dated August 25, 2017. This involved assessing the appellant's claims against the evidence presented, particularly regarding the ownership of the property and the terms of the contract.

Holdings

• The court found that the appellant, Stephen Nturibi Etirikia, breached the sale agreement by falsely representing himself as the sole owner of the property and acted fraudulently in receiving payments from the respondent, who was not the actual owner.
• The court determined that the appellant's counterclaim was invalid as it was not accompanied by a verifying affidavit and lacked necessary particulars, as required by the Civil Procedure Rules.
• The appeal was dismissed with costs awarded to the respondent, as the court found no merit in the appellant's grounds of appeal.

Contract Value

Remedies

• The court dismissed the appellant's appeal, finding no merit in the grounds raised, and awarded costs to the respondent.
• The respondent's claim for a refund of Kshs 2,123,300 and interest was allowed based on the appellant's fraudulent misrepresentation of ownership.
• The appellant's counterclaim was dismissed for breaching procedural rules by failing to submit a verifying affidavit and insufficient particulars of the alleged breach.

Monetary Damages

Legal Principles

• The court determined that the appellant breached the sale agreement by misrepresenting himself as the sole owner of the property when it was actually registered in another person's name. This breach invalidated the agreement and justified the trial court's decision to dismiss the counterclaim.
• The court applied mandatory procedural rules (Order 7 Rule 5 and Order 2 Rule 10(1) of the Civil Procedure Rules) to strike out the appellant's counterclaim for failing to include a verifying affidavit and insufficient particulars, emphasizing strict adherence to legal formalities.
• The court emphasized the burden of proof on the respondent to demonstrate the appellant's breach, noting the respondent's evidence (e.g., land registry records) fulfilled this requirement, while the appellant's counterclaim lacked sufficient supporting documentation.

Key Disputed Contract Clauses

• Clause 4 required the respondent to pay the remaining Kshs 1,700,000 by the end of September 2017. The court analyzed whether this timeline was breached and found the respondent's non-payment was a result of the appellant's fraudulent misrepresentation about ownership.
• Clause 1 of the August 25, 2017 agreement explicitly stated that the appellant was the sole owner of Plot 8A Ngundune Market. The court found this clause was breached when the appellant misrepresented his ownership status, as the plot was registered in Karuma M'Liria's name.

Precedent Name

• Mukuru Munge Vs Florence Shingi Mwanana & 2 others
• Ganuni Construction co Ltd V County Government of Garrisa & anor

Cited Statute

Judge Name

• P.M. WECHULI
• C.K. YANO

Damages / Relief Type

Passage Text

• it is my finding that the trial magistrate was right in concluding that the appellant was in breach of the agreement and acted fraudulently in receiving money from the respondent yet he did not own the plot being sold.
• the counterclaim by the appellant was in breach of the mandatory provisions of Order 7 Rule 5(a) and Order 4 Rule (1) and (2) and the same was rightly struck out for that omission.
• In the result, I find no merit in the appellant's appeal and the same is hereby dismissed with costs to the respondent.