Elly Obong’o Osewe v Moses Ndegwa Gitonga [2017] KEELC 1215 (KLR)
- Citation
- [2017] KEELC 1215 (KLR)
- Status
- Judgment
- Jurisdiction
- Kenya
- Court
- Environment and Land Court
- Panel
- OA Angote
- Case number
- Environment & Land Case 20 of 2017
- Language
- English
More details
- Court
- Environment and Land Court
- Panel
- OA Angote
- Case number
- Environment & Land Case 20 of 2017
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the Plaintiff had produced credible evidence, including sale agreements and proof of payment, establishing that he purchased the suit properties and fulfilled his contractual obligations. The Defendant, having been served but failing to respond or contest the Plaintiff’s claims, did not rebut the evidence. The court was satisfied that the Plaintiff had proved his case on a balance of probabilities and was entitled to the relief sought, specifically an order of specific performance compelling the Defendant to transfer the suit properties to the Plaintiff.
Court disposition
Plaint allowed as prayed. Judgment for the Plaintiff.
Orders
- The Defendant is ordered to transfer L.R. No. 12715/12496 and L.R. No. 12715/12493 to the Plaintiff.
02
Material facts
Parties
Elly Obong’o Osewe
PlaintiffMoses Ndegwa Gitonga
Defendant03
Procedural history
Posture
Land and Property Suit / Judgment
04
Questions and positions
Legal issues
- 01
Whether the Defendant sold the suit properties to the Plaintiff and/or his predecessor in title.
- 02
Whether the Plaintiff paid the full purchase price for the suit properties.
- 03
Whether the Plaintiff is entitled to an order of specific performance compelling the Defendant to transfer the suit properties.
Party arguments
- Applicant
- The Plaintiff argued that he purchased plot number 27 directly from the Defendant and plot number 26 from Pauline Kaimenti, who had acquired it from the Defendant’s agent. He asserted that he paid the full purchase price for both plots, produced sale agreements and banker’s cheques as evidence, and complied with all contractual obligations. He sought an order of specific performance to compel the Defendant to transfer the suit properties to him.
- Respondent
- The Defendant did not enter appearance or file a Defence and did not participate in the proceedings.
05
Court’s reasoning
Legal principles
- 01
Kenyan contract law and authorities cited in Plaintiff’s submissions
A party seeking specific performance must demonstrate compliance with the terms of the contract and that the other party has failed to perform their obligations.
- 02
Section 107-109 of the Evidence Act (Cap 80 Laws of Kenya)
Proof on a balance of probabilities is required in civil matters.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the Plaintiff had produced credible evidence, including sale agreements and proof of payment, establishing that he purchased the suit properties and fulfilled his contractual obligations. The Defendant, having been served but failing to respond or contest the Plaintiff’s claims, did not rebut the evidence. The court was satisfied that the Plaintiff had proved his case on a balance of probabilities and was entitled to the relief sought, specifically an order of specific performance compelling the Defendant to transfer the suit properties to the Plaintiff.
Court disposition
Plaint allowed as prayed. Judgment for the Plaintiff.
- The Defendant is ordered to transfer L.R. No. 12715/12496 and L.R. No. 12715/12493 to the Plaintiff.
Source and reliance status
Environment and Land Court
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Environment and Land Court
Judgment
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. CASE NO. 20 OF 2017
ELLY OBONG’O OSEWE..........................................PLAINTIFF
VERSUS
MOSES NDEGWA GITONGA................................DEFENDANT
JUDGMENT
1. In the Plaint dated 2nd June, 2016, the Plaintiff averred that the Defendant was at all material times the beneficial owner of L.R. No. 12715/141 measuring 2. 024Ha; that the Defendant caused the said land to be sub-divided and that he appointed Railway Housing Co-operative Society (RAHOSO) to be the sole sale agent for the plots.
2. According to the Plaintiff, on 18th July, 2003, RAHOSO, acting on behalf of the Defendant, sold to Pauline Kaimenti sub-division number 26, now L.R. No. 12715/12496 and that Pauline Kaimenti sold to him the said land vide an agreement dated 7th July, 2005.
3. The Plaintiff has averred that on 13th September, 2005, the Defendant sold to him plot number 27, now L.R. No. 12715/12493 and that despite performing the agreement, the Defendant has failed, neglected and or declined to transfer the suit properties to him.
4. The Plaintiff is seeking for an order of specific performance directing the Defendant to transfer L.R. No. 12715/12496 and L.R. No. 12715/12493 to him.
5. Although the Defendant was served with the Summons and the Plaint, he neither entered appearance nor filed a Defence.
6. The matter proceeded for hearing on 10th May, 2017.
7. The Plaintiff, PW1, informed the court that he bought plot number 27, which was a sub-division of L.R. No. 12715/145 from the Defendant and paid him the entire purchase price; that he purchased plot number 26 from Pauline Kaimenti who had purchased it from the Defendant’s agent and that the Deed Plans for the said plots were issued on 15th October, 2015.
8. Upon survey, PW1 informed the court that plot number 26 became L.R. No. 12715/12496 while plot number 27 became L.R. No. 12715/12493.
9. It was the evidence of PW1 that he complied with the Agreements of 13th September, 2005 and 7th July, 2005 in respect to the two plots.
10. PW1 produced in evidence the said Sale Agreements and the copies of the banker’s cheques in respect of the two plots.
11. The Plaintiff’s advocate filed brief submissions which I have considered. I have also considered the authorities that were filed by the Plaintiff’s advocate.
12. The Defendant has not denied that indeed the suit properties are registered in his name.
13. The Defendant has also not denied that he sold the suit properties to the Plaintiff and one Pauline Kaimenti, who in turn sold her plot to the Plaintiff.
14. I have perused the Agreements that were produced by the Plaintiff in this matter together with the copies of the banker’s cheque showing that the Plaintiff paid the full purchase price for the two plots.
15. In the circumstances, I am satisfied that the Plaintiff has proved his case on a balance of probabilities.
16. I therefore allow the Plaint dated 2nd June, 2016 as prayed.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 2ND DAY OF NOVEMBER, 2017.
O.A. ANGOTE
JUDGE
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