[2013] KEHC 6207 (KLR)
The court found that a valid written contract existed between the plaintiff and the defendant for the sale of 0.6 acres of land. The plaintiff fulfilled her contractual obligations by paying the agreed deposit and covering the Land Control Board fees. The defendant breached the contract by failing to attend the Land...
Source-derived case information.
- Citation
- [2013] KEHC 6207 (KLR)
- Parties
- Plaintiff: Deborah Muthoni Njoroge; Defendant: Mwangi Kamau
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 2 of 2013
- Procedural Posture
- Civil Suit / Judgment
- Outcome
- judgment for the plaintiff
- Judges
- A Ombwayo
- 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
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Parties
Deborah Muthoni Njoroge
Plaintiff
Mwangi Kamau
Defendant
Procedural Posture
Civil Suit / Judgment
Legal Issues
- 1 Whether there was a valid contract for the sale of land between the plaintiff and the defendant.
- 2 Whether the defendant breached the terms of the sale agreement by failing to transfer 0.6 acres to the plaintiff.
- 3 Whether the plaintiff is entitled to a refund of the deposit plus interest or specific performance of the contract.
Ratio Decidendi
The court found that a valid written contract existed between the plaintiff and the defendant for the sale of 0.6 acres of land. The plaintiff fulfilled her contractual obligations by paying the agreed deposit and covering the Land Control Board fees. The defendant breached the contract by failing to attend the Land Control Board meeting and refusing to complete the transfer. As a result, the plaintiff was entitled to judgment as prayed, specifically either a refund of the deposit plus interest as per the agreement or, in the alternative, an order compelling the defendant to transfer 0.6 acres out of land parcel No. Loc.2/Kangari/1346 to the plaintiff.
Court Disposition
judgment for the plaintiff
Orders
- The defendant is ordered to either refund the plaintiff the deposit of Kshs.230,000 plus interest as per the agreement, or to transfer 0.6 acres out of land parcel No. Loc.2/Kangari/1346 to the plaintiff.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
ENVIRONMENT AND LAND COURT
E.L.C NO.2 OF 2013
DEBORAH MUTHONI NJOROGE......................................PLAINTIFF
VERSUS
MWANGI KAMAU...........................................................DEFENDANT
J U D G M E N T
The plaintiff's claim is based on an agreement in writing dated 11/7/2012 between the plaintiff and the defendant where the latter agreed to sell to the former 0. 6 acres of land that was to be partitioned and subdivided out of land parcel No. Loc.2/Kangari/1346 for a consideration of Kshs.430,000/=.
The plaintiff paid a down payment of Kshs.230,000/= leaving a balance of Kshs.200,000/= that was to be paid after completion of the Land Control Board meeting and subdivision thereof.
The plaintiff took the responsibility of paying all necessary fees required by the Land Control Board but the defendant refused or failed to attend and therefore stalling the transaction.
The plaintiff instituted this suit in compliance with order 3 rule 2 and filed a statement upon which she relied and also gave her testimony.
She seeks a refund of Kshs.230,000 plus interest as agreed in clause 8 of the agreement or in the alternative the court to compel the defendant to subdivide the suit land and transfer 0. 6 acres to the plaintiff as agreed.
The plaintiff produced a copy of the sale agreement, a receipt indicating that she had paid fees for the meeting of the Land Control Board, a copy of the certificate of the official search dated 13/7/12 indicating that Mr. Mwangi Kamau the defendant herein is the proprietor of the subject land, and a demand letter dated 4/8/2012.
The defendant was served with the plaint and summons to enter appearance but neither filed appearance nor defence hence the matter was listed for formal proof.
I have considered the pleadings, witness statement and the testimony of the plaintiff and do find that there was a valid contract between the plaintiff' and the defendant. The plaintiff performed her obligation by paying the consideration as required in law, however the defendant breached the express terms of the contract by failing to transfer 0. 6 acres to the plaintiff and therefore I do enter judgment for the plaintiff in terms of prayers (a) and (b) of the plaint. For avoidance of doubt the defendant is ordered to either refund the plaintiff the money paid as deposit plus interest as per the agreement, or a transfer of 0. 6 acres out of land parcel No Loc.2/Kangari/1346. Orders accordingly.
Dated and Delivered at Nyeri this 14th day of June 2013
A. OMBWAYO
JUDGE