BY SAM ALFAN.
The Court of Appeal has stopped a woman from further demolishing a contested property in Nairobi which she acquired from Kenya Commercial Bank (KCB).
Justices Daniel Musinga, Wanjiru Karanja and Gatembu Kairu suspended Justice Kossy Bor’s decision, which granted Patricia Kung’u the property, pending the hearing of an appeal filed by Fatuma Ali.
The judges noted that Kung’u was likely to demolish the entire house, thus rendering the appeal, if successful, nugatory.
Although Kung’u claimed that she was only performing repair works on the property, which was in a very dilapidated condition, the court noted that having taken possession of the property, there is nothing to prevent her from using or developing the suit property in a way that may change its character or she may even demolish it.
“If this were to happen, the appeal if successful would be no more than an academic exercise as the situation may be irreversible and an award of damages may not be adequate,” the judges said.
Environment and Land court judge Kossy Bor had also ordered Ali to refund Kung’u all the money she collected as rent since 2008 from the suit property within 45 days of the judgment.
Ali said although Justice Bor suspended her decision for a certain period, Kung’u invaded the property and demolished a section.
Kung’u admitted she had already taken possession of the suit property and started carrying out repairs to the house which was in a dilapidated condition and she had already spent Sh400,000.00 in repairs and another sum of Sh90,000.00 in payment of accumulated electricity bill.
She further argued that Ali was not likely to suffer any harm if the order for stay is not granted since she is still the registered owner of the property and the property is still charged to KCB.
She added that there was a restriction already placed against the title by Benny Roesch who was a party in the consolidated suits and the property would still be available for the duration of the appeal save for possession which the respondent had already taken.
She also argued that Fatuma had been unlawfully benefiting from the property and that this court being a court of equity and justice should bring an end to this.
Fatuma argued that judge held that the contract for sale between her and Kung’u was void for want of consideration yet it was clear from the pleadings that parties had ascribed a monetary value to the contract.
She also argued that the judgment of the trial court was riddled with contradictions where at one point the judge held that the contract for sale had been rescinded but concluded wrongfully that the same contract was void for want of consideration.
