The Starehe Member of Parliament (MP) Amos Maina Mwago has suffered a major setback after he lost a protracted suit over disputed property in which he sought to secure a Sh7.5million three-bedroom apartment after a botched property deal.
Despite losing the legal battle, the bungled transaction also saw the legislator lose Sh2.25million he had deposited to purchase the house offered by Windsor Gardens Limited in Kiambu county.
In yet another blow, in his ruling, High Court Judge Justice David Majanja consequently ordered the MP to pay the agent, Kings Pride Properties Sh50,000 as costs of the suit.
In his ruling, Justice Majanja dismissed an appeal lodged by Mwago after it emerged that he had sued the wrong party, Kings Pride Properties Limited.
“Mwago did not lead any evidence to show that Kings Pride was not an agent since it was clear it was not the vendor of the apartment but Windsor Gardens on whose account it paid the deposit. Since the principal was known, the appellant ought to have sued it.” Justice Majanja ruled.
Effectively, Justice Majanja upheld the judgement of the trial magistrate delivered last year, dismissing the claim as there was no cause of action against Kings Pride Properties.
“I hold that the subordinate court was correct in its findings that the MP ought to have sued the principal, in this case the vendor, Windsor Gardens for a refund of its deposit and not Kings Pride Properties.” Justice Majanja ruled.
In the suit, Mwago had lodged the case against Kings Pride Properties in 2021 seeking a refund of Sh2.25million deposited for the apartment at the leafy Windsor Gardens.
He had been offered a deal to buy the house off plan at Windsor Gardens Apartments for Sh7.5million.
The parties allegedly signed a letter of offer on January 21, 2016 and Mwago paid a deposit of Sh2.25million ahead of the construction of the house.
However, the construction works did not happen within three years as agreed in the contract and the MP discovered that the project had been abandoned.
When he instructed his advocates to demand a refund of his deposit, the agent allegedly offered him another apartment unit at Runda Royal, which was a totally different project and with a complete variation of the terms of the letter of offer.
He then accused the developer for breach of contract and sought a refund of his deposit.
Kings Pride Properties defended itself saying it was only acting as an agent of a disclosed principal and that it did not receive the deposit from Mwago.
Further, the firm through its director David Karanja Karani argued that it was the MP who was having trouble paying the purchase price in accordance with the deal before opting out of the transaction.
Milimani Principal Magistrate Edgar Kagoni noted in his decision that the deposit was paid upon signing the letter of offer and that the vendor of the apartment was Windsor Gardens while the deposit was paid into the account of Telagen Investments Limited.
The magistrate further said that Kings Pride Properties was a marketing agent of Windsor Gardens and had no interest to pass on to Mwago.
He also held that the phrase “subject to contract by way of formal sale agreement” in the letter of offer, indicated that the final agreement was yet to be reached and would be arrived at, upon the execution of a formal pact by Mwago and the vendor, Windsor Gardens.
The trial court stated that the legislator, having knowledge of all the facts, ought to have joined the parties implicated in the transaction, and therefore, it concluded that in the absence of a contract between the appellant and vendor and by failure to sue the proper parties, the suit could not succeed.
Justice Majanja agreed with the trial court’s reasoning and noted that the onus was upon the MP to prove that Kings Pride Properties did not have the consent or was not an agent.