[2019] KEELC 2633 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT THIKA

ELC CASE NO. 773 OF 2017

GODFREY NGATIA NJOROGE……………….…………….………….PLAINTIFF

VERSUS

JAMES NDUNGU MUNGAI…………………………..……….………DEFENDANT

JUDGMENT

By a Plaint dated 3rd October 2017, the Plaintiff herein brought a suit against the Defendant seeking for the following orders;

1. Specific Performance to execute the requisite transfer documents in favour of the Plaintiff, in default of appearance by the defendant, the Deputy Registrar or this Honourable court do execute the transfer documents in favour of the Plaintiff with regard to land parcel 152/9 on behalf of the Defendant.

2. Costs of the suit herein be in the cause.

In his statement of Claim, the Plaintiff averred that vide a sale agreement dated 4th April 2010, he purchased L.R 152/9 situated at Tigoni AreaofKiambu County, from the Defendant making him a bonafide purchaser. He fully met his obligations and took possession of the suit property and has been enjoying quiet possession since then. However, despite his demand for the release of the completion documents from the Defendant, he has been unable to trace him with the view of having him release the original completion documents and execute the requisite transfer documents to facilitate registration of ownership in his name.

It was his contention that land rates continue to accrue and his proprietary interest, right and enjoyment over the suit property continues to be prejudiced.

Despite being served with Summons to Enter Appearance via substituted service by advertisement, the Defendant failed do so nor file any Defence. The matter proceeded for formal proof hearing, wherein the Plaintiff gave evidence for himself and called no witness

PLAINTIFF’S CASE

PW1 - Godfrey Ngatia Njoroge adopted his witness statement dated 3rd October 2017, and testified that he bought the suit land which is 20 acres from the Defendant at Kshs.48,000,000/= which he paid in instalments. He produced the list of documents as exhbit 1 and the bank statements as exhibit 2. He further testified that he started using the land in 2010. He had built a home thereon and sometimes he would live on the suit property. Further that he wishes to subdivide the suit property but he does not have the documents as the Defendant did not transfer the land to him. He further testified that he has not met the Defendant since he transferred the suit property to him.

Upon close of his case, the Plaintiff informed the Court that he did not wish to file written submissions.

The Court has now carefully read and considered the pleadings, the evidence adduced and the exhibits thereto and renders itself as follows;-

The Defendant failed to enter appearance and thereby defend the suit. The fact that the suit has not been opposed means that the Plaintiff’s evidence remained unchallenged and uncontroverted. However the Plaintiff is still required to prove his case on the required standard of balance of probability. See the case of Shaneebal Limited…Vs…County Government of Machakos (2018)eKLR, where the Court cited the case of Karuru Munyororo…..Vs….Joseph Ndumia Murage & Another, Nyeri HCCC No.95 of 1988, where it was held that:-

“The Plaintiff proved on a balance of probability that she was entitled to the orders sought in the Plaint and in the absence of the Defendant’s and or their Counsel to cross examine her on evidence, the Plaintiff’s evidence remained unchallenged and uncontroverted. It was thus credible and it is the Kind of evidence that a court of law should be able to act upon’’

The fact that the evidence is not challenged does not then mean that the Court will not interrogate the evidence of the Plaintiff. The Court still has an obligation to interrogate the Plaintiff’s evidence and determine whether the same is merited to enable the Court come up with a logical conclusion as exparte evidence is not automatic prove of a case. The Plaintiff has to discharge the burden of proof. See the case of Kenya Power & Lighting Company Limited…Vs…Nathan Karanja Gachoka & Another [2016] eKLR, where the Courtstated:-

“I am of the opinion that uncontroverted evidence must bring out the fault and negligence of a defendant, and that a court

should not take it truthful without interrogation for the reason

only that it is uncontroverted. A plaintiff must prove its case too upon a balance of probability whether the evidence is unchallenged or not.’’

Further the case ofGichinga Kibutha…Vs…Carooline Nduku (2018) eKLR, where the Court held that:-

“It is not automatic that instances where the evidence is not controverted the Claimants shall have his way in Court. He must discharge the burden of proof. He must proof his case however much the opponent has not made a presence in the contest.’’

The issue for determination before this court then is whether the Plaintiff is entitled to the Order of Specific Performance as sought. Before this court determines whether it should award the order of specific performance, it must first satisfy itself that the sale agreement that the Plaintiff seeks to rely on meets the requirements of a contract of sale of land. The Plaintiff has alleged that he entered into a sale agreement with the Defendant for the purchase of the suit property. Further that the same was reduced into writing and signed by all the parties. Section 3 (3) of the Contract Act provides that;

3(3) No suit shall be brought upon a contract for the dispositionof an interest in land unless—

(a) the contract upon which the suit is founded—

(i) is in writing;

(ii) is signed by all the parties thereto; and

(b) the signature of each party signing has been attested bya witness who is present when the contract was signed by such party:

Provided that this subsection shall not apply to a contract made in the course of a public auction by an auctioneer within the meaning of the Auctioneers Act (Cap. 526), nor shall anything in it affect the creation of a resulting, implied or constructive trust.

The Court has carefully perused the sale agreement produced as Exhibit by the Plaintiff and noted that the same is in writing and is signed by the parties. It thus met the requirements of Section 3(3) of the Contract Act. Further the agreement for sale contains the names of the parties, the description of the property, the purchase price and the conditions thereto. A look at the said sale agreement confirms that the same is a valid sale agreement which is enforceable by the parties. See the case of Nelson Kivuvani....Vs....Yuda Komora & Another, Nairobi HCCC No.956 of 1991, where the Court held that:-

“the agreement for sale of land which contains the names of the parties, the number of the property, the purchase price and the conditions attached thereto, the obligations, express or implied, of each of the parties and signed and witnessed by two witnesses who signed against their names amount to a valid contract”.

Granting of specific Performance is discretionary and as such the Court should in deciding whether or not to grant the orders look at the merits of the case based on a case to case basis and whether there is an adequate alternative. See the Case of Reliable Electrical Engineers Ltd…..Vs….Mantrac Kenya Limited (2006) eKLR,wherein Justice Maraga (as he then was) stated that:-

“Specific performance like any other equitable remedy is discretionary and the Court will only grant it on well laid principles”

“The Jurisdiction of specific performance is based on the existence of a valid enforceable contract. It will not be ordered if the contract suffers from some defect, such as failure to comply with the formal requirements or mistake or illegality, which makes the contract invalid or enforceable. Even when a contract is valid and enforceable, specific performance will however not be ordered where there is an adequate alternative remedy. In this respect damages are considered to be an adequate alternative remedy where the claimant can readily get the equivalent of what he contracted for from another source. Even when damages are adequate remedy specific performance may still be refused on the ground of undue influenced or where it will cause severe hardship to the defendant.”

As already found and held by this Court, there was a valid sale agreement by the parties that was duly signed. Further the said agreement has not been vitiated by any factors nor has there been any allegations or form of illegality that has been alluded to. The Plaintiff has further averred that after he bought the suit property he was unable to trace the Defendant and therefore the Defendant could not transfer the land or deliver the completion documents. It would then be proper that the said sale agreement is completed.

This Court has perused the sale agreement and has noted that the same provided for consideration of the sale of the suit land. The Court has also seen the payment slips from Equity Bank and noted that the payments for the purchase of the suit land were duly paid therefore the

Plaintiff had fully paid as per the agreement. It was incumbent upon the Defendant to fulfil his part of the bargain as he is bound by the contract. On the other hand the Court has also noted that though the sale agreement and the payment slips have provided for the Land Reference No. of the suit property being L.R No.152/9 Limuru, there is no any official government document that indicates the Defendant as the registered proprietor of the suit property.

At the very least the Court would have expected an official search to show that the Defendant was the registered proprietor of the suit land. At this point the Court has no reason to doubt that the Defendant is the registered proprietor of the Suit land but as the Plaintiff has averred that the Defendant is untraceable and he would require the Deputy Registrar of this Court to sign the transfer documents then this Court must be satisfied that indeed the Defendant is the registered proprietor of the suit before the Deputy Registrar appends her signature to the transfer documents of the suit property.

Further the Plaintiff has averred that he has been in possession of the suit land and has been living thereon and of. As already held by the Court the evidence of the Plaintiff is not controverted and the same is therefore not challenged. That being the case it would therefore mean that compensation to the Plaintiff in terms of damages would not be adequate as land is a unique and cannot be equated. In this instant therefore, damages may not be an appropriate remedy and as such Specific Performance is the best way to ensure that justice has been served. The award is Specific performance will not prejudice the Plaintiff nor the Defendant at all.

Consequently the Court is satisfied that the remedy of Specific performance is the proper order to be granted. The same in this instance would only be achieved by allowing the Plaintiff’s prayer of the Deputy Registrar signing the transfer documents as the Defendant cannot be traced and consequently the said prayer is allowed. However the grant of the said order is conditional upon the Plaintiffs presenting an official search to the Deputy Registrar that indicates the Defendant as the registered owner of the suit property.

Having now carefully considered the available evidence and the exhibits thereto, the Court finds that the Plaintiff has discharged his duty of proof of his case on the required standard of balance of probabilities. For the above reasons the Court enters Judgment for the Plaintiff against the Defendant in terms of prayers as sought in the Plaint on a condition that an official search of the suit property be presented to the Deputy Registrar before the transfer documents can be signed.

It is so ordered.

Dated, Signed and Delivered at Thika this 28th day of June 2019.

L. GACHERU

JUDGE

28/6/2019

In the presence of

M/S Njuru holding brief Mr. Mandale for Plaintiff

No appearance for Defendant

Lucy - Court Assistant

Court– Judgment read in open court.

L. GACHERU

JUDGE

28/6/2019