[2005] KEHC 268 (KLR)
The court found that the defendant, having been served and failing to appear or defend, was deemed to have admitted the plaintiff's claims. The evidence, including the sale agreement and technical report, established that the defendant breached the contract by delivering a substandard and uninhabitable house. The...
Source-derived case information.
- Citation
- [2005] KEHC 268 (KLR)
- Parties
- Plaintiff: Heinz A. Theissing; Defendant: Diani Homes Ltd.
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 9 of 2004
- Procedural Posture
- Civil Case / Formal Proof After Interlocutory Judgment; Unopposed Hearing
- Outcome
- Judgment for the plaintiff.
- Legal Topics
- Breach of Sale Agreement, Defective Construction, Compensation for Repairs, Habitability of Premises
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Heinz A. Theissing
Plaintiff
Diani Homes Ltd.
Defendant
Procedural Posture
Civil Case / Formal Proof After Interlocutory Judgment; Unopposed Hearing
Legal Issues
- 1 Whether the defendant breached the sale agreement by delivering a substandard and uninhabitable house to the plaintiff.
- 2 Whether the plaintiff is entitled to compensation for the cost of repairs as assessed by the consultant architect.
Ratio Decidendi
The court found that the defendant, having been served and failing to appear or defend, was deemed to have admitted the plaintiff's claims. The evidence, including the sale agreement and technical report, established that the defendant breached the contract by delivering a substandard and uninhabitable house. The plaintiff was entitled to compensation equivalent to the cost of repairs as certified by the consultant architect, as he could no longer trust the defendant to perform the repairs. Judgment was therefore entered for the plaintiff for the sum claimed, with costs and interest.
Court Disposition
Judgment for the plaintiff.
Orders
- The defendant shall pay the plaintiff KES 3,644,200 to enable rectification of the breaches.
- The defendant shall pay costs of the suit.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA Civil Case 9 of 2004
HEINZ A. THEISSING ……………………………………..………………PLAINTIFF
Versus
DIANI HOMES LTD. ………………………………….……………..DEFENDANTS
J U D G M E N T
This is a formal proof the defendant having been served with summons on 19/11/04 through the Secretary /Manager. No appearance or defence was filed within the prescribed time. Affidavit of service is filed.
Interlocutory judgment was entered on 28/1/2005.
On the hearing day the plaintiff gave evidence and produced documents showing he is the registered owner of the property in dispute.
The plaintiff pleads the agreement of sale contained conditions that the house would be of required standard be safe and habitable place to live in without any defects whatsoever. The plaintiff pleads that after taking possession the house was found to be of substandard and uninhabitable and despite requesting the Defendant to rectify the defendant has failed to do so.
The plaintiff called a witness PW 2 to testify and give a technical report on the building. The report is exhibited and recommended repairs are valued at shs. 3,644,200/-. The plaintiff claims the payment of sufficient compensation to enable rectification of the constructions as he no longer has confidence with the defendant to carry the repairs. He prays for Shs.3,644,200/- as certified by the PW 2 the Consultant Architect.
Upon reading the pleadings the exhibits and the evidence offered by the plaintiff I am satisfied that the Defendants have breached the sale agreement and the result is selling to the Plaintiff substandard and uninhabitable premises. The defendant has been requested to comply with the contract but has failed to do so. In the circumstances I enter judgment for plaintiff against the defendant in the sum of Shs.3,644,200/- to enable him to rectify the breaches.
Costs and interest also awarded.
Delivered and dated at Mombasa this 16th day of December 2005.
J. KHAMINWA
J U D G E