Diana Maisie Osano Odero t/a Odero & Associates Advocates v Dawid Abdulrahman And Saad Migdad t/a Abudulrahman Saad & Company Advocates & another [2020] eKLR Case Summary

Court
High Court of Kenya at Nairobi, Commercial & Tax Division
Category
Civil
Judge(s)
W. A. Okwany
Judgment Date
October 15, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3
Explore the 2020 eKLR case summary of Diana Maisie Osano Odero t/a Odero & Associates Advocates v Dawid Abdulrahman And Saad Migdad t/a Abdulrahman Saad & Company Advocates. Gain insights into the judgment and its implications for legal practice.

Case Brief: Diana Maisie Osano Odero t/a Odero & Associates Advocates v Dawid Abdulrahman And Saad Migdad t/a Abudulrahman Saad & Company Advocates & another [2020] eKLR

1. Case Information:
- Name of the Case: Diana Maisie Osano Odero T/A Odero & Associates Advocates v. Dawid Abdulrahman and Saad Migdad T/A Abudulrahman Saad & Company Advocates and Five Star Construction Company Limited
- Case Number: HCCC NO. E188 OF 2019
- Court: High Court of Kenya at Nairobi, Commercial and Tax Division
- Date Delivered: 15th October 2020
- Category of Law: Civil
- Judge(s): W. A. Okwany
- Country: Kenya

2. Questions Presented:
The central legal issues in this case revolve around:
- Whether the defendants are liable to pay the outstanding balance of the purchase price for the property as per the sale agreement.
- Whether the plaintiff is entitled to injunctive relief to prevent the defendants from dealing with the property pending the determination of the case.

3. Facts of the Case:
The plaintiff, Diana Maisie Osano Odero, an advocate, represented a vendor in a property sale transaction involving Land Reference Number 36/111/215 in Eastleigh, Nairobi. The sale agreement, executed on 19th February 2018, stipulated a purchase price of Kshs 45 million, with a 10% deposit of Kshs 4.5 million paid by the second defendant, Five Star Construction Company Limited, through its advocate, the first defendant, Dawid Abdulrahman. The balance was to be paid within 90 days. The property transfer was completed on 7th March 2018, and vacant possession was granted on 12th September 2018. However, the defendants failed to pay the remaining Kshs 40.5 million, prompting the plaintiff to file an originating summons seeking the outstanding payment, interest, and injunctive relief.

4. Procedural History:
The defendants entered an appearance to the Originating Summons, but default judgment was initially entered against them on 15th July 2019. This judgment was set aside on 29th April 2020, with an order for the defendants to file their defense within seven days. The defendants failed to comply, leading the plaintiff to request default judgment again on 17th June 2020. Default judgment was subsequently entered, and the case was set for formal proof on 25th June 2020, where the plaintiff provided evidence of the sale agreement and the defendants' non-compliance.

5. Analysis:
- Rules: The court considered the terms of the sale agreement, which included clauses regarding payment timelines and interest on default. Specifically, Clause 1.1.2 stipulated that the balance of Kshs 40.5 million was due upon completion, with interest accruing at 10% per month until payment in full.
- Case Law: The court referenced National Bank of Kenya Ltd v. Pipe Plastic Samkolit (K) Ltd and Another (2002) EA 503, emphasizing that parties to an agreement are bound by its terms. This case underscored the enforceability of contractual obligations, which was central to the court's reasoning.
- Application: The court assessed the evidence presented by the plaintiff, including the sale agreement and demand letters. Given the defendants' failure to pay the outstanding balance despite having received possession of the property, the court concluded that the plaintiff had proven her case against the defendants jointly and severally.

6. Conclusion:
The court ruled in favor of the plaintiff, ordering the defendants to pay Kshs 40.5 million, plus interest at 10% per month until full payment. Additionally, an injunction was granted to restrain the second defendant from dealing with the property until compliance with the payment order. This decision reinforces the importance of adhering to contractual obligations in property transactions.

7. Dissent:
There were no dissenting opinions noted in this case, as the judgment was delivered by a single judge.

8. Summary:
In Diana Maisie Osano Odero T/A Odero & Associates Advocates v. Dawid Abdulrahman and Saad Migdad T/A Abudulrahman Saad & Company Advocates and Five Star Construction Company Limited, the High Court of Kenya ruled in favor of the plaintiff, ordering the defendants to pay the outstanding balance of the purchase price for property and granting injunctive relief. This case highlights the enforceability of contractual terms and the obligations of parties in property transactions, serving as a significant reference for future cases involving similar issues.

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