MBITHI V. MATHARE

JUDGMENT

I am in the unfortunate position of having respectfully to disagree. And I am impelled to set out what I believe this appeal is all about. Julius Cosmas Mbithi, the appellant, and Margella (Marcella?) Mbithi, his wife, were the plaintiffs in the action they brought against John Wallace Mathare, the respondent, in mid-1977.

The Mbithis alleged in their plaint they jointly purchased a freehold plot at Hardy Estate in Langata, Nairobi in January, 1967 and built part of a house and a room for servants on it and they were still in occupation of them.

And, then on November 5, 1976, Mbithi, without involving Marcella, signed an agreement to sell the plot and buildings on it to Mathare for Kshs 300,000.

Mathare paid Kshs 80,000 to Mbithi, which the latter used to pay back a loan he had been given by the National Bank of Kenya. Mathare also paid ( for Mbithi ) Kshs 16,750 for the fees and commission of Mbithis’s advocate. The total of those two sums is Kshs 96,750 and, if they were paid o…