[2017] KEELC 1194 (KLR)
The court found that the plaintiff had proved its case on a balance of probabilities by demonstrating payment of the full purchase price, transfer of the property into its name, and issuance of a certificate of ownership. The defendant, despite being served, failed to contest the suit or fulfill the buy-back option....
Source-derived case information.
- Citation
- [2017] KEELC 1194 (KLR)
- Parties
- Plaintiff: EMIS Investments Limited; Defendant: Rosemary Nyokabi Gatutu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 635 of 2016
- Procedural Posture
- Land and Property Suit / Judgment
- Outcome
- Judgment for the plaintiff.
- Legal Topics
- Sale of Land, Eviction, Specific Performance, Transfer of Title
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
EMIS Investments Limited
Plaintiff
Rosemary Nyokabi Gatutu
Defendant
Procedural Posture
Land and Property Suit / Judgment
Legal Issues
- 1 Whether the plaintiff lawfully purchased the suit property from the defendant.
- 2 Whether the plaintiff is entitled to an order of eviction against the defendant.
- 3 Whether the defendant failed to exercise her buy-back option and fulfill payment terms.
Ratio Decidendi
The court found that the plaintiff had proved its case on a balance of probabilities by demonstrating payment of the full purchase price, transfer of the property into its name, and issuance of a certificate of ownership. The defendant, despite being served, failed to contest the suit or fulfill the buy-back option. The evidence presented by the plaintiff was uncontroverted. Consequently, the court held that the plaintiff was entitled to the orders sought, including eviction of the defendant from the suit property.
Court Disposition
Judgment for the plaintiff.
Orders
- The defendant shall vacate and hand over possession of plot No. P6006 B at Embakasi to the plaintiff.
- In default of compliance, the defendant shall be evicted from the suit property.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT & LAND COURT OF KENYA
AT MILIMANI
ELC CASE NO. 635 OF 2016
EMIS INVESTMENTS LIMITED..………….PLAINTIFF
=VERSUS=
ROSEMARY NYOKABI GATURU………..DEFENDANT
JUDGEMENT
1. The Plaintiff is a Limited Liability Company incorporated under the provisions of the Companies Act (the company). On 30th November 2011, the Company entered into a sale agreement with the defendant wherein the defendant agreed to sell her plot No. P6006 B at Embakasi. The agreed purchase price was Kshs.886,000/=.
2. The Company paid the entire purchase price. The company officials and the defendant went to Embakasi Ranching Company Ltd where records were changed from the defendant into the company’s name. This was after the company paid transfer fees of Kshs.5000/= and site visit fees of Kshs.25,000/= . The company was issued with a certificate of ownership in its name.
3. The defendant had sold the plot because she was in dire need of finances. It had been agreed that the defendant had the option of buying back the plot. The Company later offered to sell the Plot to the defendant at Kshs.4,000,000/=. The defendant accepted and a proposal on payment was made but she never bought back the plot. The defendant has refused to give the company possession.
4. The Company filed this suit against the defendant seeking an order of eviction. The defendant who was duly served neither entered appearance nor filed a defence. The hearing therefore proceeded by way of formal proof. I have looked at the documents relied on by the company. There is a sale agreement dated 30th November 2011. On 30/11/2011 the defendant was paid Kshs.468000/=. On 1/12/2011 the defendant was paid Kshs.418,000/= making a total of kshs.886,000/= which was the agreed purchase price.
5. The Company was given a share certificate after payment of transfer fees and site visit fee. There are receipts for payment issued to the company. There is also evidence that the defendant tried to buy back the plot at kshs.4,000,000/= . She undertook to make a deposit of Kshs.2,500,000/- on or before 7/4/2016 and the balance be paid on or before 7/5/2016. The defendant never fulfilled this. The evidence of the company remains uncontroverted. I find that the plaintiff company has proved its case on a balance of probability. I enter judgement for the plaintiff in terms of prayer (a) and (b) of the amended Plaint.
Dated, Signed and delivered at Nairobi on this 12thday of October, 2017.
E.O.OBAGA
JUDGE
In the presence of :
Mr Mulaku for Mr Maina for Plaintiff
Court Assistant: Hilda
E.O.OBAGA
JUDGE