[2015] KEELC 88 (KLR)
The court found that the Plaintiff had proved, on a balance of probabilities, that there was a valid sale agreement for Apartment Number 5, that the Plaintiff had paid the full purchase price as acknowledged by the Defendant and her advocate, and that the Defendant failed to complete the transaction by providing the...
Source-derived case information.
- Citation
- [2015] KEELC 88 (KLR)
- Parties
- Plaintiff: Beatrice Wanjiku Ndugi; Defendant: Jacqueline Wangui Hill
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Case 65 of 2014
- Procedural Posture
- Civil Case / Judgment
- Outcome
- Plaint allowed as prayed; order of specific performance granted.
- Judges
- OA Angote
- Legal Topics
- Specific Performance, Sale of Land, Breach of Contract
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Beatrice Wanjiku Ndugi
Plaintiff
Jacqueline Wangui Hill
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the Plaintiff is entitled to an order of specific performance of the sale agreement dated 8th January, 2013.
- 2 Whether the Defendant received the full purchase price for Apartment Number 5 and failed to complete the transaction.
Ratio Decidendi
The court found that the Plaintiff had proved, on a balance of probabilities, that there was a valid sale agreement for Apartment Number 5, that the Plaintiff had paid the full purchase price as acknowledged by the Defendant and her advocate, and that the Defendant failed to complete the transaction by providing the necessary completion documents. The Defendant did not contest the Plaintiff's evidence or file any Defence. In the absence of any rebuttal, the Plaintiff's evidence stood unchallenged. The court therefore held that the Plaintiff was entitled to the order of specific performance as prayed in the Plaint, compelling the Defendant to complete the sale in accordance with the...
Court Disposition
Plaint allowed as prayed; order of specific performance granted.
Orders
- The Defendant shall specifically perform the agreement dated 8th January, 2013 by completing the sale of Apartment Number 5 on the second floor of Block A to the Plaintiff.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
ELC CIVIL CASE NO.65 OF 2014
BEATRICE WANJIKU NDUGI...............................................................PLAINTIFF
=VERSUS=
JACQUELINE WANGUI HILL...........................................................DEFENDANT
J U D G M E N T
In her Plaint dated 4th April, 2014, the Plaintiff is claiming for an order of specific performance of the agreement dated 8th January, 2013.
In the Plaint,the Plaintiff has averred that the Defendant is the registered proprietor of L.R. No. 4805; that on or before 8th January, 2013, she entered into an agreement of sale with the Defendant to sell to her one apartment and that she paid the final installment of Kshs.3,000,000 as per the agreement.
According to the Plaintiff's Plaint, the Defendant has refused to take the balance of Kshs.436,200 and to complete transaction.
Although the Defendant was served with the summons to enter appearance, she neither entered appearance nor filed a Defence.
PW1 informed the court that she entered into an agreement with the Defendant on 8th January 2013 for the purchase of Apartment Number 5 on the second floor of Block A and that the purchase price was Kshs.6,000,000.
According to PW1, she paid the purchase price through the firm of Mr. Gicharu (PW2) in cash.
It was the evidence of PW1 that the Defendant received the money from her advocate which she acknowledged in writing. The evidence of PW1 is that the Defendant has since declined to complete the transaction.
The Plaintiff's advocate in the transaction, PW2, informed the court that he paid the Defendant the purchase price of Kshs.6,000,000 in two installments of Kshs.3,000,000 each which she acknowledged in writing.
However, when they called for the completion documents from the Defendant's advocate, the advocate told them that they had no instructions in the matter.
The Plaintiff's advocate filed brief written submissions and authorities which I have considered.
PW1 produced in court the Agreement for sale drawn by the Defendant's Advocate dated 8th January 2013.
In the agreement, the Plaintiff was purchasing Apartment number 5 on the second floor of block A situated on L.R. Number 4805, 4806, 4807 and 4808.
The purchase price is indicated as Kshs.6,000,000, which amount was supposed to be paid in full to the vendor upon execution of the agreement.
According to the acknowledgment note dated 4th January 2013, and signed by the Defendant, she received Kshs.3,000,000 being the final installment from the Plaintiff's advocate's office.
In the e-mail dated 17th January, 2013, the Defendant's advocate acknowledged the fact that his client had received the entire purchase price.
The Plaintiff's evidence has not been controverted. Indeed, the Defendant has not traversed the allegations raised in the Plaint.
Having considered the evidence before me, I find and hold that the Plaintiff has proved his case on a balance of probabilities.
For those reasons, I allow the Plaint dated 4th April, 2014 as prayed.
Dated and delivered in Malindi this 13th day ofNovember2015.
O. A. Angote
Judge