[2010] KEHC 906 (KLR)
The court found that the plaintiff had fully complied with the terms of the sale agreement by paying the entire purchase price for the suit properties. The defendants, having received the payments and failed to transfer the properties, were in breach of contract. Since the plaintiff's evidence was uncontroverted and...
Source-derived case information.
- Citation
- [2010] KEHC 906 (KLR)
- Parties
- Plaintiff: David Cururu Wangunyu; Defendant: Serah Njambi Kahahu; Defendant: Mary Nyambura Kahahu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Election Petition 349 of 2007
- Procedural Posture
- Originating Summons / Judgment
- Outcome
- Judgment for the plaintiff. Order for specific performance granted.
- Legal Topics
- Specific Performance, Sale of Land, Breach of Contract, Transfer of Title
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Cururu Wangunyu
Plaintiff
Serah Njambi Kahahu
Defendant
Mary Nyambura Kahahu
Defendant
Procedural Posture
Originating Summons / Judgment
Legal Issues
- 1 Whether the plaintiff is entitled to specific performance of the sale agreement for L.R. No. 13460/41 and L.R. No. 13460/42.
- 2 Whether the defendants breached the sale agreement by failing to transfer the suit properties to the plaintiff.
Ratio Decidendi
The court found that the plaintiff had fully complied with the terms of the sale agreement by paying the entire purchase price for the suit properties. The defendants, having received the payments and failed to transfer the properties, were in breach of contract. Since the plaintiff's evidence was uncontroverted and he continued to meet obligations such as paying land rent and rates, the court held that specific performance was the appropriate remedy to enforce the transfer of the properties to the plaintiff.
Court Disposition
Judgment for the plaintiff. Order for specific performance granted.
Orders
- The defendants shall execute the transfers of L.R. 13460/41 and L.R. 13460/42 to the plaintiff within 30 days.
- If the defendants fail to execute the transfers within 30 days, the Deputy Registrar shall execute such transfers.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
ELC. 349 OF 2007 (O.S)
DAVID CURURU WANGUNYU ……………………………..PLAINTIFF
V E R S U S
SERAH NJAMBI KAHAHU ……………………………….1ST DEFENDANT
MARY NYAMBURA KAHAHU …………………………2ND DEFENDANT
J U D G M E N T
The Defendants were served with the originating summons but did not respond. The evidence of the Plaintiff as contained in the supporting affidavit was therefore not controverted.
On 24th July, 1996 the 1st Defendant agreed to sell to the Plaintiff two plots known as L.R. No. 13460/41 and L.R. No. 13460/42 at KShs. 1,900,000/=. “DCW 1” was the annexed sale agreement. KShs. 200,000/= was to be paid by 31st July 1996, KShs. 70,000/= to be paid every month and thereafter a sum of not less than KShs. 1,000,000/= to be paid by 31st July, 1997. The balance was to be paid within 12 months from 31st July, 1997. The completion date was 24th July, 1998. The Plaintiff paid the last instalment of KShs.950,000/= vide cheque on 20th July, 1998. “DWC 3”. The payments were being made through the 2nd Defendant to whom the 1st Defendant had donated a power of attorney (“DCW 2”). Since then the 1st Defendant has not transferred the suit properties to the Plaintiff, hence the suit. The Plaintiff has been paying land rent to the Commissioner of Lands and rates to the City Council of Nairobi.
On the evidence judgment is entered for the Plaintiff against the Defendants. An order for specific performance is issued against the Defendants to execute the transfers of L.R. 13460/41 and 13460/42 to the Plaintiff within 30 days, failing which the Deputy Registrar shall execute such transfers. Costs shall be borne by the Defendants.
DATED, SIGNED AND DELIVERED AT NAIROBI
THIS 8TH DAY OF NOVEMBER 2010
A.O. MUCHELULE
J U D G E