[2018] KEELC 2006 (KLR)
The court found that the plaintiff had proved payment of Ksh. 225,000 as a deposit under the sale agreement and that the defendant failed to cooperate in obtaining Land Control Board consent, amounting to breach of contract. The defendant's claim of refunding a substantial amount was unsubstantiated as no evidence...
Source-derived case information.
- Citation
- [2018] KEELC 2006 (KLR)
- Parties
- Plaintiff: Beth Wamuyu Mukinyukia; Defendant: Ephantus Kariuki Nguru
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 221 of 2016
- Procedural Posture
- Land and Property Suit / Judgment
- Outcome
- Judgment for the plaintiff.
- Judges
- SN Mukunya
- Legal Topics
- Sale of Land, Specific Performance, Refund of Purchase Price
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Beth Wamuyu Mukinyukia
Plaintiff
Ephantus Kariuki Nguru
Defendant
Procedural Posture
Land and Property Suit / Judgment
Legal Issues
- 1 Whether the defendant breached the agreement for sale of land by failing to obtain Land Control Board consent.
- 2 Whether the plaintiff is entitled to a refund of the deposit paid under the agreement.
- 3 Whether the plaintiff is entitled to 30% monthly interest as claimed.
Ratio Decidendi
The court found that the plaintiff had proved payment of Ksh. 225,000 as a deposit under the sale agreement and that the defendant failed to cooperate in obtaining Land Control Board consent, amounting to breach of contract. The defendant's claim of refunding a substantial amount was unsubstantiated as no evidence was provided. The court held that the plaintiff was entitled to a refund of the deposit with interest at court rates, but not the 30% monthly interest claimed, as neither party was authorized to charge such interest under Kenyan law.
Court Disposition
Judgment for the plaintiff.
Orders
- The defendant shall refund Ksh. 225,000 to the plaintiff.
- The defendant shall pay interest at court rates on the refunded amount.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KERUGOYA
ELC CASE NO. 221 OF 2016
BETH WAMUYU MUKINYUKIA..........................PLAINTIFF
VERSUS
EPHANTUS KARIUKI NGURU.........................DEFENDANT
JUDGMENT
[1] The plaintiff in this case filed this suit against the defendant and stated that on or around 24th May 2016, she entered into an agreement for sale with the defendant for the sale of ¼ acre out of land parcel number Mutira/Kangai/2610 at a consideration of Ksh. 400,000/=. She alleges that she paid a deposit of Ksh. 225,000/= and that the balance would be paid after the parties attended the Land Control Board for consent of sub-division and sale.
[2] It was the plaintiff’s case that after the receipt of the said deposit, the defendant became uncooperative and has failed to apply for the said consent for Land Control Board. That this is despite a demand letter from the plaintiff dated 24th October 2016.
[3] The defendant filed a statement of defence and admitted the ownership of the suit land; he further admitted entering into an agreement with the plaintiff but averred that the agreement was frustrated by the plaintiff. He went on to state that after the frustration, the defendant started to refund the purchase price and that he has refunded a substantive amount. He otherwise denied the claim.
[4] This suit was fixed for hearing on 6th March 2018 Ex-parte. An affidavit of service dated 30th April 2018 was filed in Court showing that a hearing notice dated 9th April 2018 for the hearing of the case on 2nd May 2018 was duly served on the defendant at Kagio Town in Kirinyaga County.
[5] The defendant or his lawyer never attended the Court during the hearing.
[6] The plaintiff relied on her statement filed in Court on 8th December 2016. She also relied on her list of document filed in Court on the same date. She demanded him Ksh. 225,000/= plus costs and interests. She also demanded the 30% monthly interest as per the agreement for sale.
[7] The defendant alleges that he refunded a substantial amount. That substantive amount is not indicated as to how much. The defendant did not come to Court to say how much was refunded in the alleged refund. That claim remains an allegation. It was not proved.
[8] The plaintiff’s claim of 30% interest per month pursuant to the agreement for sale remains unenforceable since none of the parties is a registered money holder authorized to charge that kind of interest by the Central Bank of Kenya. I hold that such amount of interest is not recoverable.
[9] The plaintiff however has proved her claim of Ksh. 225,000/= plus costs and interests at Court rates.
It is so ordered.
S.N. MUKUNYA
JUDGE
29TH JUNE, 2018