[2006] KEHC 427 (KLR)
The court found that there was a valid and enforceable contract between the plaintiff and the defendant for the sale of 4 acres of land, with the full purchase price paid and all necessary consents obtained. The defendant, having received the full consideration, could not retain both the land and the money. The...
Source-derived case information.
- Citation
- [2006] KEHC 427 (KLR)
- Parties
- Plaintiff: David Kahindi Katana; Defendant: Masha Dena Masha
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 124 of 2005
- Procedural Posture
- Civil Case / Judgment After Formal Proof; Interlocutory Judgment Previously Entered Due to Non Appearance
- Outcome
- Judgment for the plaintiff; specific performance and mandatory injunction granted.
- Legal Topics
- Specific Performance, Sale of Land, Mandatory Injunction, Breach of Contract
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Kahindi Katana
Plaintiff
Masha Dena Masha
Defendant
Procedural Posture
Civil Case / Judgment After Formal Proof; Interlocutory Judgment Previously Entered Due to Non Appearance
Legal Issues
- 1 Whether there was a valid contract for the sale of 4 acres of land between the plaintiff and the defendant.
- 2 Whether the plaintiff paid the full purchase price as agreed.
- 3 Whether the defendant breached the contract by failing to transfer the land.
Ratio Decidendi
The court found that there was a valid and enforceable contract between the plaintiff and the defendant for the sale of 4 acres of land, with the full purchase price paid and all necessary consents obtained. The defendant, having received the full consideration, could not retain both the land and the money. The plaintiff had performed his part of the bargain, and the defendant's refusal to transfer the land constituted a breach of contract. Given the circumstances, the court held that specific performance and a mandatory injunction were appropriate remedies to compel the defendant to execute the transfer, failing which the court's Executive Officer would do so. The court also awarded...
Court Disposition
Judgment for the plaintiff; specific performance and mandatory injunction granted.
Orders
- The plaintiff is entitled to 4 acres of land from the defendant’s original plot No. 242, Vipingo Settlement Scheme.
- A mandatory injunction is issued compelling the defendant to execute the transfer of the said 4 acres of land within 30 days; in default, the Executive Officer of the court to sign all relevant documents in place of the defendant.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Civil Case 124 of 2005
DAVID KAHINDI KATANA ……………….................................………… PLAINTIFF
Versus
MASHA DENA MASHA ……………………...................…………… DEFENDANT
Coram: Before Hon. Justice L. Njagi
Mr. Ngaira h/b for Chidzipha for plaintiff
Court clerk – Kinyua
J U D G M E N T
The plaintiff prays against the defendant for a declaration that the parcel of land which is the subject matter of this suit belongs to the plaintiff; an order of mandatory injunction compelling the defendant to forthwith execute the transfer of the suit parcel of land in favour of the plaintiff; general damages for breach of contract and costs of this suit.
His case is that by a sale agreement made between him and the defendant, the defendant agreed to sell to him some 4 acres of land for a consideration of Kshs. 240,000/=. He duly paid the purchase price but the defendant declined to keep his part of the bargain – hence, this suit.
This suit was filed on 23rd June, 2005. According to the affidavit of service sworn by Michael Thoya M’bwana on 5th August, 2005, the defendant was served on 1st July, 2005. Upon the defendant’s failure to enter appearance or file a defence within the prescribed period, the plaintiff applied for interlocutory judgment on 25th July, 2005, and this was duly entered on 3rd October, 2005. The matter thereafter came for formal proof before this court on 12th October, 2006.
The plaintiff gave sworn evidence in which he testified that by an agreement made on 1st May, 2002 between him and the defendant, the defendant agreed to sell to the plaintiff some 4 acres of land to be subdivided and transferred from plot No. 242, Vipingo Settlement Scheme. The total consideration payable was Kshs. 240,000/= at the rate of Kshs. 60,000/= per acre. The agreement was witnessed by 8 people including the area Senior Chief, Raphael Karisa, and the Senior Sub Chief, Joseph C. Ndurya. A copy thereof was produced as plaintiff’s exhibit No.1.
The parties thereafter appeared before the Bahari Land Control Board which first approved the transaction for the subdivision of the suit land and then approved the sale and transfer transaction. The two documents evidencing the two transactions were also produced as plaintiff’s exhibits 3 and 4.
The plaintiff duly paid the entire purchase price of Kshs. 240,000/=. He produced a schedule of payments showing that he paid the last instalment on 18th September, 2003, bringing the total sum paid to Kshs. 240,000/=. The schedule was witnessed by members of the seller’s family, along with Senior Chief Raphael B. Karisa, and the Sub Chief. It was also produced in evidence as plaintiff’s exhibit No.2.
From the above evidence, which the court believed, and which was not controverted in any manner, I find that there was a contract between the plaintiff and the defendant for the sale by the defendant to the plaintiff of 4 acres of land. The purchase price was the agreed sum of Kshs. 240,000/=. The parties obtained the requisite consent of the Land Control Board, and the plaintiff paid the entire consideration as agreed. By so doing, he performed his part of the contract. Thereafter, the defendant seems to have developed cold feet and became reluctant to let go the land. But he cannot have his cake and eat it. He cannot pocket the plaintiff’s money and still retain the land.
In those circumstances, I find that this is a fair and proper case for the court to order specific performance. The defendant should not be allowed to have it both ways. I accordingly make the following orders –
1. The plaintiff is entitled to 4 acres of land from the defendant’s original plot No. 242, Vipingo Settlement Scheme.
2. An order of mandatory injunction be and is hereby issued compelling the defendant forthwith to execute the transfer of the said 4 acres of land within 30 days from today. In default the Executive Officer of this court to sign all the relevant documents in place of the defendant.
3. The defendant to pay the costs of this suit.
Dated and delivered at Mombasa this 27th day of October, 2006.
L. NJAGI
JUDGE