[2018] KEELC 931 (KLR)
The court found that the Plaintiff failed to prove, on a balance of probabilities, that he paid the balance of the purchase price or the additional Kshs. 300,000 as claimed. The Plaintiff did not produce any documentary evidence to support his assertion of payment beyond the initial deposit. The Defendant's...
Source-derived case information.
- Citation
- [2018] KEELC 931 (KLR)
- Parties
- Plaintiff: David Aradi; Defendant: Fredrick Nakhulo Wamalwa
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 198 of 2010
- Procedural Posture
- Land and Property Suit / Judgment
- Outcome
- Plaintiff's claim for specific performance or damages dismissed; refund of deposit ordered.
- Judges
- AK Bor
- Legal Topics
- Sale of Land, Specific Performance, Breach of Contract, Refund of Deposit
- 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
David Aradi
Plaintiff
Fredrick Nakhulo Wamalwa
Defendant
Procedural Posture
Land and Property Suit / Judgment
Legal Issues
- 1 Whether the Plaintiff paid the full purchase price for the land as per the agreement.
- 2 Whether the Plaintiff is entitled to specific performance or refund of the deposit paid.
- 3 Whether the Defendant breached the sale agreement by failing to transfer the land to the Plaintiff.
Ratio Decidendi
The court found that the Plaintiff failed to prove, on a balance of probabilities, that he paid the balance of the purchase price or the additional Kshs. 300,000 as claimed. The Plaintiff did not produce any documentary evidence to support his assertion of payment beyond the initial deposit. The Defendant's evidence, including the completion notice, was not effectively rebutted. As a result, the Plaintiff was not entitled to specific performance or damages equivalent to the current value of the land. However, since the Defendant admitted receipt of the Kshs. 1 million deposit, the court ordered its refund to the Plaintiff with interest at court rates from the date of filing suit. Each...
Court Disposition
Plaintiff's claim for specific performance or damages dismissed; refund of deposit ordered.
Orders
- The Defendant shall refund the Plaintiff the sum of Kshs. 1 million paid as deposit together with interest at court rates from the date of filing suit.
- Each party shall bear its own costs.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
E.L.C. CASE NO. 198 OF 2010
DAVID ARADI………… ………………….……….………PLAINTIFF
VERSUS
FREDRICK NAKHULO WAMALWA…………………..DEFENDANT
JUDGEMENT
1. The Plaintiff entered into an agreement with the Defendant on 2/5/1998 for the purchase of an acre of land which was to be excised from the Defendant’s land known as L.R. No. 1160/89 measuring 10 acres, in Nairobi. The consideration was agreed at Kshs. 2. 7 million. The Defendant who is an advocate of the High Court of Kenya, acted as advocate for both the vendor and the purchaser. The Plaintiff paid the deposit of Kshs. 1 million on execution of the agreement. The agreement stated that the balance of the purchase price was to be paid on completion of the subdivision and on delivery by the vendor to the purchaser of the final deed plans and a duly executed transfer of title.
2. The Plaintiff claims that he paid the balance of the purchase price to the Defendant together with an additional sum of Kshs. 300,000/= to facilitate the subdivision exercise by the Defendant but he later learnt that the Defendant subdivided his land and transferred it to other persons and not to him. The Plaintiff seeks an order that the Defendant transfers an acre of L.R. No. 1160/89 to him or in the alternative, the sum of Kshs. 18 million which was the value of the land at the time of filing suit.
3. In his defence filed on 4/2/2011, the Defendant admitted that the Plaintiff paid him the agreed deposit but that he failed to pay the balance of the purchase price. He averred that he gave a 30-day completion notice to the Plaintiff who failed to pay the balance of the purchase price.
4. Both the Plaintiff and Defendant gave evidence in this matter and produced copies of the sale agreement. The Defendant also produced a copy of the completion notice dated 2/12/1998 which the Plaintiff denied ever receiving.
5. The Plaintiff did not adduce evidence to show that he paid the balance of the purchase price to the Defendant. He did not produce evidence of the payments of Kshs. 1. 7 million and 300,000/= which he claimed he paid to the Defendant’s wife.
6. The court finds that the Plaintiff has failed to prove his case on a balance of probabilities. The Defendant is directed to refund the Plaintiff the sum of Kshs. 1 million paid as a deposit together with interest at court rates from the date of filing suit. Each party will bear its own costs.
Dated and delivered at Nairobi this 25th day of September 2018.
K. BOR
JUDGE
In the presence of: -
Mr. Amulioto holding brief for Mr. Keyonzo for the Plaintiff
Ms. Merichi holding brief for Mr. Ngoge for the Defendant
Mr. V. Owuor- Court Assistant