[2010] KEHC 2703 (KLR)
The court found that the defendant entered into a valid sale agreement with the plaintiff for the purchase of the suit land, paid only 10% of the purchase price as deposit, and failed to complete the transaction by the agreed date. The defendant did not file any response to the originating summons, rendering the...
Source-derived case information.
- Citation
- [2010] KEHC 2703 (KLR)
- Parties
- Plaintiff: Gikonyo wa Kang’u; Defendant: Komarock Building Dev Ltd
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Case 54 of 2009
- Procedural Posture
- Civil Case / Ruling on Originating Summons
- Outcome
- application allowed
- Judges
- I Lenaola, DW Mbuteti
- Legal Topics
- Sale of Land, Specific Performance, Breach of Contract, Remedies for Breach
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gikonyo wa Kang’u
Plaintiff
Komarock Building Dev Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Originating Summons
Legal Issues
- 1 Whether the defendant is obligated to pay the balance of the purchase price for the suit land as per the sale agreement.
- 2 Whether the plaintiff is entitled to interest at 15% per annum on the unpaid balance or deposit of the sum in court.
- 3 Whether the plaintiff is entitled to the reliefs sought due to the defendant's failure to complete the transaction.
Ratio Decidendi
The court found that the defendant entered into a valid sale agreement with the plaintiff for the purchase of the suit land, paid only 10% of the purchase price as deposit, and failed to complete the transaction by the agreed date. The defendant did not file any response to the originating summons, rendering the application unopposed. The court held that the defendant was obligated to pay the balance of the purchase price as agreed, and failure to do so would cause unnecessary hardship to all parties, including third parties already settled on the land. The penalty for non-payment was stipulated as 15% interest per annum in the sale agreement. Accordingly, the court granted the prayers...
Court Disposition
application allowed
Orders
- The respondent shall pay to the applicant the balance of the purchase price for L.R. No. 44416 (L.R. No. 12715/180) plus interest at 15% per annum.
- In the alternative, the respondent shall deposit the said sum in court.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS Civil Case 54 of 2009
GIKONYO WA KANG’U ……………………………..………………. PLAINTIFF /APPLICANT
versus
KOMAROCK BUILDING DEV LTD ……………………………DEFENDANT/RESPONDENT
RULING
1. The Originating Summons dated 4. 9.2008 is premised in the provisions of Order XXXVI Rule 3 of the Civil Procedure Rules and the Applicant seeks orders that the Respondent do pay to the Applicant the balance of the purchase price for the sale of L.R.No. 44416 (L.R. No. 12715/180 situated north-west of Athi-River) plus interest at 15% per annum or in the alternative that he should deposit that sum in court.
2. From the Supporting Affidavit sworn on 4. 9.2008 and the grounds in support of the summons, the Applicant is the registered proprietor of the suit land.That sometime in 2007, the Respondent entered into the land without lawful cause and later purported to sub-divide it with intention to sell portions of it to third parties.When the Applicant discovered those actions, he initially took offence but in April 2008, he opted to accede to the Respondent’s request to purchase the land at a total price of Kshs. 9,180,000/= and a Sale Agreement to that effect was executed on 29. 4.2008. That in part compliance thereof, the Respondent paid Kshs. 918,000/= as 10% deposit and was to complete the transaction by 1. 8.2008 but failed to do so.
3. The Applicant’s concern is that the Respondent has already settled third parties on the land and he may suffer irreparable damage if the transaction is not completed.
4. The Respondent only entered appearance through M/S Egessa & Co. Advocates on 18. 9.2008 but I see no response to the issues raised and therefore I deem the summons as unopposed.
5. In the Sale Agreement dated 29. 4.2008 the Respodnent committed itself inter-aliato complete the sale transaction by 1. 8.2008. It has failed to do so and only paid 10% of the purchase price.It is obligated to pay the balance as failure to do so would only occasion all parties, including third parties, unnecessary hardship and probably protracted litigation.The penalty for failure to pay the purchase price as agreed was 15% interest.
6. The above being the case, the prayers in the summons are warranted and I will grant prayers 1 and 3 thereof.
7. Orders accordingly.
ISAAC LENAOLA
JUDGE
Countersigned and delivered at Machakos this 12th day of March 2010.
H.P.G. WAWERU
JUDGE