Court bars man from property he sold to tycoon

Environment and Lands Court in Nakuru has barred Samuel Ikumbu from repossessing property he sold to a tycoon over unpaid balance. 

Ikumbu sold a parcel of land to Nakuru tycoon Said Abdalla Azubedi (now deceased) at Sh75 million on July 31, 2013. 

“A mandatory and permanent injunction is hereby issued restraining the defendant (Ikumbu) by himself, servant, agent, assigns or any other persons acting on his behest from selling, transferring or interfering with the plaintiff’s (Azubedi) quiet possession and rent collection in any way howsoever, from disposing or dealing, or interfering with all that parcel of land known as Nakuru Municipality Block 5/133 and the premises thereon situated within Nakuru Town,” read the order in part. 

According to the sale agreement, Azubedi, was to pay Sh10 million.

He was to pay another Sh10 million within 90 days to be granted unlimited possession of the property and collection of rent from tenants from August 2013 pending clearance of Sh55 million. 

The Sh55 million was to be paid after a duly registered property transfer to Azubedi, the sale agreement states.

Following the agreement, the tycoon on November 1, 2013, and in compliance with the 90 days clause deposited Sh10 million in Ikumbu’s account. 

At the time of signing the sale agreement, the property was charged to Barclays Bank of Kenya Limited for a loan facility granted to the owner of the property. Ikumbu, however, promised to have the title deed discharged. 

Documents, The Standard obtained indicate that Ikumbu failed to comply with the terms of the agreement, forcing Azubedi to move to court in 2015. 

The tycoon in documents filed in court claims that, Ikumbu instead of complying with the terms in the sale agreement sought an extension of time and on several occasions through his (Ikumbu) lawyer sought to renege on completing part of the bargain on unreasonable excuses.

The estate of Azubedi through lawyer Musembi Ndolo claims Ikumbu on May 25, 2017, threatened rescind the sale agreement and refund the deposit already paid. In a further letter dated August 1, 201,7 Ikumbu threatened to take possession of the property, an action Azubedi protested.

Ikumbu in his counterclaim, denied that he sold the property and is no valid agreement between the parties. He claimed that Azubedi had collected rent for forty-four months, amounting to Sh28 million. 

Environment and Lands Court Judge Anthony Ombwayo, after the hearing of the case, dismissed Ikumbu’s claim that he was entitled to rescind the contract. 

The court entered a judgment in favour of Azubedi and dismissed Ikumbu’s counterclaim.

The court further ordered Ikumbu to fully comply with the terms of the sale agreement dated July 31, 2013. The judge ordered him to provide all the completion documents of the property in compliance with the sale agreement dated July 2013. 

The estate of Azubedi was ordered to pay Ikumbu Sh55 million within 14 days after a duly transferred agreement was registered. 

Following the orders, Ikumbu moved back to court, protesting the orders issued against him. 

He informed the Environment and Lands Court that he has lodged an appeal and there are chances it will succeed.

Ikumbu lamented that execution of the judgment will render the intended appeal nugatory and therefore stay of execution should be granted. 

Justice Ombwayo declined to issue the conservatory orders sought. 

“The applicant (Ikumbu) has never been in possession of the property and has never collected rent from the property and therefore the appeal cannot be rendered nugatory if a stay is not granted as the status quo will remain the same. Having found that the applicant will not suffer any substantial loss, the application is dismissed with costs,” ruled the court. 

Muigai Commercial Agencies Ltd has also been ordered to file a comprehensive account report of all monies collected received and deposited in respect to the property from September 15, 2023, to October 9, 2024, within the next 30 days.