Omar Mohamed Bawaly v Joshua Gitahi Rodrot [2017] eKLR

Key Facts

Transaction Type

Issues

• The defendant relied on the Lis Pendens doctrine to withhold payment, asserting that the pending ELC No. 219/2015 suit might invalidate the sale. The court ruled this inapplicable as the suit was filed post-default, and the plaintiff sought payment under a pre-existing agreement.
• The court determined whether the defendant's defense, which claimed the pending litigation (ELC No. 219/2015) rendered the payment obligation moot, was a sham and should be struck out. The defense failed to disclose a reasonable argument, as the suit was filed after the defendant's default and did not justify withholding payment.
• The plaintiff sought 19% interest on the overdue payment, while the defendant contested it as unlawful and immoral under the plaintiff's Muslim beliefs. The court acknowledged the dispute but left the rate determination for the trial.

Holdings

• The defendant's delay in payment was found to be without valid legal basis. The court rejected the argument that the pending litigation (ELC No. 219/2015) justified non-payment, noting the payment was due before the litigation commenced.
• The court dismissed the defendant's reliance on the Lis Pendens doctrine as inapplicable, emphasizing the plaintiff's claim was not an alienation of property but a contractual obligation predating the cited litigation.
• Partial judgment was entered in favor of the plaintiff for Kshs 2,221,482. The interest rate dispute remains pending for trial, and costs of the application are to be paid by the losing party.
• The defendant admitted owing the plaintiff Kshs 2,221,482 under the Sale Agreement for Plot No. 139 Malindi. The court determined this admission was clear and valid.

Remedies

• The court awarded the costs of the application to the plaintiff, indicating that the defendant will bear the expenses related to the application. This was determined as part of the judgment in favor of the plaintiff.
• The court entered a partial judgment in favor of the plaintiff, Omar Mohamed Bawaly, for the sum of Kshs 2,221,482, which was the balance of the purchase price due under the sale agreement. The judgment was based on the defendant's admission of liability and the court's finding that the defense was not valid.

Monetary Damages

Legal Principles

• The court emphasized that procedural rules should not override the dispensation of substantive justice, particularly in cases where technicalities could prejudice access to justice as outlined in Section 1A of the Civil Procedure Act and Article 48 of the Constitution.
• The court addressed the doctrine of Lis Pendens, which prevents parties from alienating property during pending litigation, but found it inapplicable in this case as the defendant's obligations predated the cited litigation and his actions were not aligned with the doctrine's intended purpose.

Precedent Name

• Githere -vs- Kimungu
• Telkom Kenya Ltd -vs- John Ochanda and 996 Others

Key Disputed Contract Clauses

• The court analyzed the contractual obligation to pay Kshs 2,221,482 as the plaintiff's share of the land purchase price by 1st November 2015. The defendant admitted the debt but failed to meet the payment deadline, leading to disputes over default and lis pendens as a defense.
• The plaintiff sought 19% interest on the overdue payment, while the defendant contested it as unlawful and immoral under the plaintiff's Muslim faith. The court acknowledged the dispute but deferred the rate determination to the trial.

Cited Statute

• Civil Procedure Rules (Kenya)
• Civil Procedure Act (Kenya)
• Indian Transfer of Property Act (ITPA)
• Constitution of Kenya
• Mental Health Act (Kenya)

Judge Name

Passage Text

• The defendant admits owing the Plaintiff the sum of Kshs 2,221,482/, but disputes the 19% interest rate demanded by the Plaintiff on a number of grounds including the fact that it is unlawful and that as a good Muslim the Plaintiff should not be heard to claim or receive interest on any sum due to him as doing so would be immoral to the Plaintiff's sworn beliefs.
• The resort to the doctrine of Lis Pendens is therefore in my view an afterthought being raised long after the Defendant had defaulted in its obligations.
• I enter partial Judgement for the Plaintiff/Applicant in the amount of Kshs 2,221,482/ only. Costs of the application will be in the cause.

Damages / Relief Type