[2007] KEHC 2914 (KLR)
The court found that the plaintiff and 1st defendant entered into a valid sale agreement for the suit property and that the plaintiff paid a substantial deposit. However, the property was subsequently sold and transferred to the 2nd defendant, who was deemed an innocent purchaser for value without notice, as there...
Source-derived case information.
- Citation
- [2007] KEHC 2914 (KLR)
- Parties
- Plaintiff: Francis W. Ndegwa; Defendant: Rose Muthoni Mbocha; Defendant: Magic General Contractors Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 2936 of 1996
- Procedural Posture
- Civil Case / Judgment
- Outcome
- Judgment for the plaintiff for Kshs.488,000 with costs and interest at 24% per annum from 15th September 1995 until payment in full. Claims for specific performance and injunctions dismissed.
- Judges
- JL Osiemo
- Legal Topics
- Specific Performance, Sale of Land, Innocent Purchaser, Injunctions, Refund of Purchase Price
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis W. Ndegwa
Plaintiff
Rose Muthoni Mbocha
Defendant
Magic General Contractors Ltd
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the plaintiff is entitled to specific performance of the sale agreement for the suit property.
- 2 Whether the 2nd defendant is an innocent purchaser for value without notice.
- 3 Whether the plaintiff is entitled to a refund of monies paid and compensation for improvements made to the property.
Ratio Decidendi
The court found that the plaintiff and 1st defendant entered into a valid sale agreement for the suit property and that the plaintiff paid a substantial deposit. However, the property was subsequently sold and transferred to the 2nd defendant, who was deemed an innocent purchaser for value without notice, as there was no caveat registered and the 2nd defendant was not shown to have actual notice of the plaintiff's claim. As a result, the remedy of specific performance was unavailable. The court held that the plaintiff was entitled to a refund of the sums paid under the agreement and compensation for the cost of improvements (the fence), together totaling Kshs.488,000, with interest at 24%...
Court Disposition
Judgment for the plaintiff for Kshs.488,000 with costs and interest at 24% per annum from 15th September 1995 until payment in full. Claims for specific performance and injunctions dismissed.
Orders
- The plaintiff is awarded Kshs.488,000 with interest at 24% per annum from 15th September 1995 until payment in full.
- The defendants shall pay the plaintiff's costs of the suit.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 2936 of 1996
FRANCIS W. NDEGWA……………......….……………………PLAINTIFF
VERSUS
ROSE MUTHONI MBOCHA…………..……..….………1ST DEFENDANT
MAGIC GENERAL CONTRACTORS LTD……....…….2ND DEFENDANT
JUDGMENT
This claim arises out of a Sale Agreement entered into between the Plaintiff and the 1st Defendant on 9th September 1995 in which the 1st Defendant offered to sell and the Plaintiff agreed to purchase land Parcel No. BLOCK G PLOT H4 in Nairobi comprising of 0. 50 Ha or thereabouts. It was expressly provided for in the said agreement inter alia that:
(i) The Plaintiff would pay a deposit of Shs.550,000/=.
(ii) The balance of Shs.250,000/= would be paid upon registration of the transfer of the said parcel of land in favour of the plaintiff.
The Plaintiff duly paid the first Deposit of Shs.400,000/=. The 1st Defendant thereafter threatened to cancel the sale as she had received another offer for the property from the 2nd Defendant as the plaintiff had refused to complete the agreement and she purported to sell the suit property to the 2nd Defendant.
The Plaintiff filed this suit on 25th November 1996 and amended on 6th August 1997 seeking:
(a) As against the 1st Defendant. Specific performance of the Sale Agreement dated 9th September 1996.
(b) A Permanent Injunction restraining the 1st Defendant from selling, charging or disposing of the suit premises being BLOCK G PLOT NO. H4 Nairobi.
(c) A Permanent Injunction restraining the Defendants, their servants and/or agents from interfering with the Plaintiff’s occupation of the suit premises being BLOCK G PLOT NO. H4 Nairobi.
(d) In the alternative a refund of the Shs.400,000/= being Part Payment of the purchase price together with interest thereof at a commercial rate of 24% per annum and Shs.88,000/= being the amount spent in constructing a fence around the suit premises.
It is the Plaintiff’s case that the 1st Defendant was allotted the suit premises by the Nairobi City Council through a letter of allotment dated 24th September 1992.
The 1st Defendant offered the suit land for sale and on 9th September 1995 they entered into a Sale Agreement in which it was agreed that the purchase price would be Shs.800,000/= payable by instalments as follows -Shs.140,000/= at the signing of the Sale Agreement Shs.200,000/= on 8th September 1995 and the balance of Shs.150,000/= was payable by 15th September 1995. He paid a total of Shs.400,000/= and the balance of Shs.250,000/= was to be paid after the transfer of the suit premises into the name of the Plaintiff. On or about 8th September 1995 the 1st Defendant went to him and threatened to sell the suit property to a Third Party if he did not complete the sale. She said she had got another buyer who was ready to pay Kshs.800,000/=. He tried to pay an instalment of Shs.150,000/= but the 1st Defendant declined to accept the same. The suit property was later sold to the 2nd Defendant through Sale Agreement dated 20th February 1996. The Plaintiff in his evidence further told the court that the 2nd Defendant cannot claim to be an innocent purchaser because he knew of his occupation of the suit premises and his intention to purchase the same. Later the 2nd Defendant came and pulled down the perimeter fence and put up a stone wall.
From the evidence and the Plaintiff’s own admission, the suit premises had been sold and transferred to the 2nd Defendant who claims to be an innocent purchaser and without notice which claim the Plaintiff disputes because the 1st Defendant knew of his occupation and his intention to purchase the same. With that admission by the Plaintiff that the suit premises has been transferred to the 2nd Defendant and without caveat registered against the property, the 2nd Defendant can rightly claim to be an innocent purchaser without notice.
The prayer for specific performance is therefore not tenable.
But the prayer in the alternative has been proved and is available to the Plaintiff.
Accordingly I enter judgment for the Plaintiff for Kshs.488,000/= with costs and interest at 24% per annum. Interest to run from 15th September 1995 until payment in full.
Dated and delivered at Nairobi this 3rd day of May, 2007.
J.L.A. OSIEMO
JUDGE