[2019] KEHC 7724 (KLR)
The Plaintiff established, on a balance of probabilities, that there existed a valid agreement for the sale of two schools to the Defendant, with a specified purchase price and payment terms. The Defendant failed to pay the full purchase price as agreed, and a subsequent settlement agreement confirmed the...
Source-derived case information.
- Citation
- [2019] KEHC 7724 (KLR)
- Parties
- Plaintiff: Bengeria Arap Korir; Defendant: St. Elizabeth Academy Karen Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 251 of 2014
- Procedural Posture
- Civil Case / Judgment
- Outcome
- judgment for the plaintiff
- Judges
- MM Kasango
- Legal Topics
- Contract Enforcement, Sale of Business, Debt Recovery
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bengeria Arap Korir
Plaintiff
St. Elizabeth Academy Karen Limited
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the Defendant is indebted to the Plaintiff in the sum claimed under the sale agreement.
- 2 Whether the Plaintiff is entitled to interest at 19% per annum from 13th March 2018.
- 3 Whether the Plaintiff is entitled to costs of the suit.
Ratio Decidendi
The Plaintiff established, on a balance of probabilities, that there existed a valid agreement for the sale of two schools to the Defendant, with a specified purchase price and payment terms. The Defendant failed to pay the full purchase price as agreed, and a subsequent settlement agreement confirmed the outstanding balance and the applicable interest rate. The Plaintiff produced documentary evidence of both the original and subsequent agreements, and the Defendant did not contest the claim at the hearing. The court found that the Plaintiff was entitled to judgment for the outstanding sum of Kshs. 40,761,504.30, interest at 19% per annum from 13th March 2018 until payment in full, and...
Court Disposition
judgment for the plaintiff
Orders
- Judgment entered for the Plaintiff for Kshs. 40,761,504.30 with interest at 19% per annum from 13th March 2018 until payment in full.
- The Defendant shall pay the costs of the suit.
Full Case Text
Judgment text and source record
51 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL & TAX DIVISION
CIVIL CASE NO. 251 OF 2014
BENGERIA ARAP KORIR ..........................................................PLAINTIFF
-VERSUS-
ST. ELIZABETH ACADEMY KAREN LIMITED ................ DEFENDANT
J U D G M E N T
1. The Plaintiff Bengeria Arap Korir filed this suit against St. Elizabeth Academy Karen Limited, the Defendant seeking judgment for Kshs. 79,961,286 with interest at 19% per annum from date of filing suit until payment in full. Although the Defendant filed a defence to this action when this case came up for hearing on 6th February 2019 the Defendant did attend Court. The case proceeded ex parte.
2. The debt claimed by the Plaintiff is in respect to the arrangement dated 10th February 2009 when the Defendant agreed to purchase two schools of the Plaintiff situated in Miritini and Bombolulu. That agreement provided the Defendant would pay the Plaintiff Kshs. 58,500,000 (of which Kshs. 3,315,000 was paid on execution of the agreement.
3. It was further agreed that the Defendant would pay the Creditors, which amount would be deducted from the purchase price. The Plaintiff in evidence stated that the Creditor’s debt was Kshs. 24,167,662. 00.
4. The completion date of the agreement was 180 days from the date of execution. Interest was applicable to amounts not paid after the completion date at 19% per annum.
5. That the Defendant failed to make payment as agreed. This led to the Plaintiff being sued by one of the Creditors CMC Company. That case against the Plaintiff, filed by CMC Company, was dismissed but judgment was entered against the Defendant.
6. The Plaintiff in evidence testified that in the year 2018 he met with the proprietor of the Defendant, namely Anne Wanjiku Wado. They reconciled the payments made where upon they reached an agreement on the settlement of the remaining balance the Defendant owed the Plaintiff which was Kshs. 40,761,504. 30. the following is what they agreed:
“FURTHER AGREEMENT FOR SALE
We Anne Wanjiku Wado on behalf of St. Elizabeth Academy-Karen P.O. Box 313 Post Code 00502
And
Bengeria Arap Korir of Marben School P.O. Box 1164 Post code 30300 Kapsabet have agreed as follows:-
a. To withdraw the case in Court in connection to the sale/purchase of Marben School in Mombasa.
b. The remaining amount to be paid to Mr. Korir on behalf of Marben School is Kshs. 40,761,504/30.
c. That St. Elizabeth Academy-Karen to pay Shs. 1,500,000 to Marben School every term until the whole debt is pad.
d. That St. Elizabeth Academy-Karen can pay more should it find it necessary.
e. That this mode of payment is effective from May 2018.
f. Upon completion of the payments all the plot/titles shall be transferred into the Name of St. Elizabeth Academy Karen.
g. This agreement supersedes the ones signed on 10/02/2009.
Name: Bengeria Arap Korir
I/D Number 482XXXX
Signature (signed) Date: 13/3/18
Name: Anne Wanjiku Wado
I/D Number 482XXXX
Signature (signed) Date: 13/3/18
Witness:
1. Andrew Chunguli Mudave
I/D Number 042XXXX
Signature: (Signed) Date: 13/3/18
2. Rose Ndirangu
I/D Number 116XXXX
Signature: (Signed) Date: 13/3/18
7. The Plaintiff therefore stated that his claim against the Defendant is Kshs. 40,361,504. 30 with interest with effect from 13th March 2018 at 19% per annum.
8. The Plaintiff met the civil standard of proof. He produced the initial agreement dated 10th February 2009 and also produced the agreement reproduced above.
9. Having proved his claim, the Plaintiff is entitled to costs.
10. In the end, the Court enters judgment for the Plaintiff for:
a) Kshs. 40,761,504. 30 with interest with effect from 13th March 2018 at 19% per annum until payment in full.
b) Costs of the suit.
DATED, SIGNED and DELIVERED at NAIROBI this 16TH day of MAY, 2019.
MARY KASANGO
JUDGE
Judgment ReadandDeliveredinOpen Courtin the presence of:
Sophie..................................... COURT ASSISTANT
................................................ FOR THE PLAINTIFF
…………………………………….… FOR THE DEFENDANT