A judge has ordered the Catholic Church’s Archdiocese of Kisumu to refund Sh3.8 million obtained from a home buyer over 10 years ago.
The payment was for the purchase of a maisonette at Sifa Gardens but the deal collapsed after the church increased the house’s price.
Justice Roselyne Aburili directed that the amount be returned to Charles Wasike together with interest of 12 per cent per annum from the year 2015 when the suit was filed in court until settlement in full.
The transaction started in 2005 and was aborted in 2009 after the Archdiocese increased the purchase price of the house from the initial sale price of Sh3.6 million to Sh6.5 million on account that the cost of construction materials had gone up after the 2007/08 post-election violence.
“I find that the plaintiff has proved on a balance of probabilities that he paid to the defendant the sum of Sh3.8 million, which evidence was uncontroverted,” said the judge. She added that the church failed to adduce evidence to substantiate the claim that the cost of construction materials had shot up.
Sh3.6 million
Mr Wasike told the court that in August 2005, the Catholic Archdiocese of Kisumu (Tumsify Agency-Sifa Gardens) advertised the houses at the price of Sh3.6 million per unit. He paid in instalments with an excess of Sh200,000. He was also issued with an allotment letter for a maisonette. He said that it was a term of the agreement that the house would be completed in six months. This was not met.
By a letter dated October 22, 2009, the Archdiocese sought to raise the price of the house to Sh6.5 million because the cost of building materials had skyrocketed, a decision that was not acceptable to Mr Wasike. He told the court that despite his proposal to settle the dispute amicably, the defendant was not willing and ultimately sold the house to a third party in the year 2015.
He argued that the defendant had used his money for the construction of the house, which amounted to unjust enrichment and bordered on fraud.
Written sale agreement
For its part, the Archdiocese said that there was no written sale agreement between the parties and that if the court was to find that it was to refund the money with interest, the court would have effectively re-written the contract between the parties.
The court heard that the Archdiocese offered to refund Mr Wasike’s money in 2009 but he chose not to receive the refund and continued paying, including the excess of Sh200,000.
“This implied that the plaintiff was willing to abide by the new price and it is thus unfair for him to claim a refund of the money,” said the Archdiocese. BY DAILY NATION