[2017] KEELC 3826 (KLR)
The court found that the plaintiff had proved his case on a balance of probabilities. The evidence showed that the defendant entered into a sale agreement for the purchase of land, paid part of the purchase price, but failed to pay the balance of KShs. 3,600,000. The agreement provided for interest at 24% per annum...
Source-derived case information.
- Citation
- [2017] KEELC 3826 (KLR)
- Parties
- Plaintiff: Hiram Bere Kinuthia; Defendant: Multi-Track Venture Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 186 B of 2016
- Procedural Posture
- Civil Suit / Judgment
- Outcome
- judgment for the plaintiff
- Legal Topics
- Sale of Land, Breach of Contract, Specific Performance, Interest on Purchase Price
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hiram Bere Kinuthia
Plaintiff
Multi-Track Venture Limited
Defendant
Procedural Posture
Civil Suit / Judgment
Legal Issues
- 1 Whether the defendant breached the sale agreement by failing to pay the balance of the purchase price.
- 2 Whether the plaintiff is entitled to the outstanding balance and interest as stipulated in the agreement.
- 3 Whether the defendant was properly served with summons.
Ratio Decidendi
The court found that the plaintiff had proved his case on a balance of probabilities. The evidence showed that the defendant entered into a sale agreement for the purchase of land, paid part of the purchase price, but failed to pay the balance of KShs. 3,600,000. The agreement provided for interest at 24% per annum on any unpaid balance from the date of completion. The defendant was properly served, as evidenced by the process server's affidavit and subsequent service by registered post. The defendant did not contest the claim, and the plaintiff's evidence was uncontroverted. Accordingly, the court entered judgment for the plaintiff for the outstanding balance, interest as agreed, and...
Court Disposition
judgment for the plaintiff
Orders
- Defendant to pay plaintiff KShs. 3,600,000.
- Defendant to pay interest at 24% per annum from 29/9/15 until payment in full.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
ENVIRONMENTAL AND LAND DIVISION
ELC CIVIL SUIT NO. 186 B OF 2016
HIRAM BERE KINUTHIA.............................................PLAINTIFF
VERSUS
MULTI-TRACK VENTURE LIMITED.......................DEFENDANT
JUDGMENT
Plaintiff’s case is that on 29/6/15, he entered into a Sale Agreement with defendant whereby the former was to sell, and the latter was to buy land parcel No. L.R. 18484/5 situated at Garden Estate. The price agreed upon was Shs.18, 000,000. Defendant paid a deposit of Shs. 1,800,000. On 7/1/16 defendant’s financier paid Shs. 12,600,000 leaving a balance of Shs. 3,600,000. The financier, Equity Bank had to register a charge against the property and so plaintiffs advocate had to release the documents to facilitate the process. The transfer was then effected in favour of the defendant and his financier, however, defendant never paid the balance of Shs.3, 600,000. Plaintiff filed this suit to recover this balance.
The Process Server vide his Return of Service filed in court on 16/9/16 has given a detailed and plausible account of his efforts to effect personal service of summons to enter appearance upon the directors of defendant to no avail. Defendant frustrated the process server’s efforts to effect service, which was eventually effected through registered post. The matter therefore proceeded ex-parte.
Plaintiff adapted his statement of 29/2/16 as his evidence. He has given an account of how he set out to sell his land to defendant at a price of Shs. 18,000,000. All the monies were paid save a sum of Shs. 3,600,000.
The sale agreement indicates that in the event of breach by purchaser “the purchaser shall pay to the vendor interest on balance of the purchase price at the rate of 24% per annum from date of completion until the date of payment”.
Plaintiff’s claim is uncontroverted and has been proved on a balance of probability.
Conclusion;
I enter judgment for plaintiff against the defendant in the following terms;
a) Defendant is hereby ordered to pay to plaintiff the sum of KShs.3, 600,000.
b) Defendant is to pay interest in respect of the above mentioned amount at the rate of 24% from 29/9/15 until payment of the amount due.
c) Defendant is condemned to pay costs of the suit
DATED AND SIGNED and DELIVERED AT NAIROBI THIS 3RD DAY OF NOVEMBER, 2017
HON. L.N. MBUGUA
ELC JUDGE
IN THE PRESENCE OF:-
Mr. Muhanga H/B for Namanda for Plaintiff