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KenGen ordered to pay housing agent Sh9.1 million

By Julius Chepkwony | October 29th 2020

The High Court has upheld a Sh9.1 million compensation to a sales and marketing agent in a dispute with the KenGen Staff Retirement Benefits Scheme. 

Judge David Shikomera Majanja in dismissing the application by KenGen Staff Retirement Benefits Scheme said Villa Care Limited proved its case and affirmed the decision by the trial court.

“Having appraised the evidence afresh, I have no option but to find that the Appellant (KenGen Staff Retirement Benefits Scheme Limited) failed to establish its defense. The Respondent (Villa Care Limited) established its case on a balance of probabilities. I affirm the decision of the trial court,” read a judgment by Justice Majanja.

Villa Care Limited had in 2017 instituted a suit against KenGen Staff Retirement Benefits Scheme Limited at the Magistrate’s Court at Nairobi, Milimani.

Villa Care in its plaint dated September 20, 2017 stated that they were appointed by KenGen staff benefit Scheme by a letter dated January 11, 2015, as its sole sales and marketing agent for a development known as Rosslyn Springs comprising town houses.

Villa Care stated that it successfully marketed and sold eight units but was only paid Sh3,343,320.00 as commission for three units leaving a balance of Sh9, 191,840 inclusive of VAT for the five units which it claimed in their plaint.

In January 2015, KenGen Staff Retirement Benefits Scheme Limited accepted Villa Care application and appointed it its sole marketing agent for the sale of the units in the Rosslyn Springs at a commission of two percent of the purchase price for a period of six months from the date of completion of the project which was on April 30, 2015. It stated that KenGen Staff Retirement Benefits Scheme Limited would appoint other companies to market and sell the units.

KenGen Staff Retirement Benefits Scheme Limited, however, said Villa Care only sold three units for which it was paid a commission. It further stated that the commission was payable upon full payment of the deposit and as regards the five units, the prospective purchasers either failed to pay the full deposit toward the purchase of the properties, withdrew the partially paid deposit, or repudiated the contracts.

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Villa Care was further accused of breaching the contract by failing to obtain buyers, failing to sell the units and failing to discharge its duties as the sole agents.

After hearing the evidence, the trial court concluded the case in favor of Villa Care prompting KenGen Staff Retirement Benefits Scheme Limited to lodge an appeal.

The High Court judge noted that it procured eight prospective purchases who signed letters of offer and paid a deposit.

“The Respondent (Villa Care Limited) had surmounted its evidential burden of showing that it procured eight prospective purchasers who signed letters of offer and paid deposits. Whether the prospective purchasers complied with the letters of offers subsequently by executing contracts of sale or completing the transaction was a matter within the Appellant’s (KenGen Staff Retirement Benefits Scheme Limited) knowledge. The Appellant did not discharge its burden of showing the sale were cancelled,” stated the judge.

The judge dismissed the appeal with cost to Villa Care.

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