[2018] KEHC 2674 (KLR)
The court found that the plaintiff had fully paid the purchase price for six plots under a sale agreement with the first defendant, who failed to complete the transaction within the stipulated time. The plaintiff issued the requisite notice making time of essence and subsequently rescinded the agreement when the...
Source-derived case information.
- Citation
- [2018] KEHC 2674 (KLR)
- Parties
- Plaintiff: Caroline Njeri Kariuki; Defendant: Samuel Maina Nganga; Defendant: Saent Group Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 1556 of 2016
- Procedural Posture
- Formal Proof / Judgment
- Outcome
- Plaintiff's claim allowed as prayed in prayers (a) and (b) of the Plaint.
- Legal Topics
- Sale of Land, Breach of Contract, Rescission, Refund of Purchase Price
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Caroline Njeri Kariuki
Plaintiff
Samuel Maina Nganga
Defendant
Saent Group Limited
Defendant
Procedural Posture
Formal Proof / Judgment
Legal Issues
- 1 Whether the plaintiff is entitled to a refund of the purchase price after rescission of the sale agreement.
- 2 Whether the defendants breached the sale agreement by failing to complete the transaction and failing to refund the purchase price.
- 3 Whether the plaintiff has proved her case on a balance of probabilities.
Ratio Decidendi
The court found that the plaintiff had fully paid the purchase price for six plots under a sale agreement with the first defendant, who failed to complete the transaction within the stipulated time. The plaintiff issued the requisite notice making time of essence and subsequently rescinded the agreement when the defendant failed to comply. The defendants' attempt to refund the purchase price through six cheques was unsuccessful as all cheques were dishonoured. The defendants did not contest the suit or present any defence. The court held that the plaintiff's evidence was uncontroverted and proved on a balance of probabilities, entitling her to a refund of the purchase price as claimed.
Court Disposition
Plaintiff's claim allowed as prayed in prayers (a) and (b) of the Plaint.
Orders
- The defendants shall refund the plaintiff Kshs.3,000,000 with interest from 2nd February 2014 until payment in full.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
MILIMANI LAW COURTS
ELC CASE NO. 1556 OF 2016
CAROLINE NJERI KARIUKI...........................PLAINTIFF
=VERSUS=
SAMUEL MAINA NGANGA...................1ST DEFENDANT
SAENT GROUP LIMITED.....................2ND DEFENDANT
JUDGEMENT
1. The Plaintiff filed this suit against the defendants claiming a refund of Kshs.3,000,000/= with interest from 2nd February 2014 until payment in full. The first defendant is a principal shareholder of the second defendant company. The defendants who were duly served neither entered appearance nor filed defence. The plaintiff applied for entry of judgement but it appears the court officials did not endorse the entry of judgement for this liquidated claim. The plaintiff therefore proceeded to formal proof.
2. The plaintiff had entered into a sale agreement in which she was to purchase six plots measuring 50x100 at Athi River. The purchase price was Kshs.3,000,000/= which she fully paid. The first defendant did not complete the transaction within the time stipulated. The plaintiff issued a notice making completion time of essence. The first defendant did not comply. The plaintiff proceeded to rescind the agreement and demanded a refund.
3. The first defendant agreed to refund the plaintiff the purchase price paid. The first defendant issued six cheques drawn by the second defendant for Kshs.500,000/- each. All the six cheques were returned unpaid. The first defendant became evasive after this prompting the plaintiff to file this suit.
4. I have gone through the documents produced by the plaintiff. There is a sale agreement dated 3rd November 2013 between the first defendant and the plaintiff. The plaintiff was purchasing six plots out of un-surveyed plot No.255 Athi River. The plots were identified in the agreement as plot Nos.11,12,13,14,15 and 16. The entire purchase price was paid on execution of the agreement.
5. The agreement provided for issuance of a 21 days’ notice in case the vendor defaulted. This notice was given by the plaintiff’s lawyer on 15th September 2015. The agreement was thereafter rescinded vide a rescission notice issued on 6th November 2015. A demand for the refund was made on 17th August 2016 after which suit was filed. The plaintiff produced copies of six cheques given by the second defendant in her favour all of which were returned unpaid.
6. The plaintiff’s evidence has not been controverted. I find that the plaintiff has proved her case against the defendants on a balance of probabilities. I allow her claim in terms of prayer (a), and (b) of the Plaint.
Dated, Signed and delivered atNairobi on this 4th day of October 2018.
E.O.OBAGA
JUDGE
In the presence of:
M/s Chichi for Mr Kariuki for Plaintiff
Court Assistant: Hilda
E.O.OBAGA
JUDGE