[2018] KEELC 2171 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT KAKAMEGA

ELC CASE NO. 407 OF 2017

HOSEA AYOYI MOMBO....................................PLAINTIFF

VERSUS

REPHER TONGOLA MOMBO......................DEFENDANT

JUDGEMENT

It is the plaintiff’s case that, on or about the 8th day of January, 2014, the plaintiff and the defendant entered into sale of land agreement where upon the plaintiff purchased a piece of land measuring approximately 0. 27 hectares comprised in parcel of land known as MARAMA/LUNDA/1822 whose total acreage was 2. 18 Hectares. Upon execution of the said agreement vacant possession of the said land was handed over to the plaintiff and the plaintiff has been in occupation and use of the same. That the subject piece of land was at the time of transaction subject of probate and administration proceedings in the high court at Kakamega vide High Court Succession Cause No. 83 of 2008 in respect to the estate of the late Simon Mombo Amunga father to both parties to this suit among other siblings. It was an express understanding between the plaintiff and the defendant together with her other two sisters namely Melisa Angolo Tuji and Lucy Martha Mkonjia that their joint entitlement as legal heirs and beneficiaries of 2. 0acres comprised in the parcel No. MARAMA/LUNDA/1822 would be transferred to the plaintiff herein upon procurement of letters of Administration in respect to the estate of the deceased father who was then the registered holder of the said piece of land. The consideration for purchase of the said 0. 27 Hectares portion was agreed at Kenya shillings two hundred thousand (kshs200,000/=) only which was paid in full and acknowledge by the defendant vide written agreement witnessed by her sisters among others. That upon conclusion of the succession proceedings, the defendant and her forenamed sisters embarked on mutation and partition exercise of the original land parcel No. MARAMA/LUNDA/1822 was sub divided into four portions 3710, 2711, 4041 and 4043 respectively where upon the defendant was allocated land parcel No. MARAMA/LUNXA/4042. The defendant having obtained the necessary legal title has declined to surrender and transfer title to the plaintiff in fulfillment of the terms of the sale agreement. The plaintiff has since the time of the sale/purchase transaction been in actual occupation, possession and utility of the suit piece of land. However, he is apprehensive of the defendant’s acts of mischief and non-commitment to the sale deal after obtaining title, hence need for judicial intervention. It is plaintiff’s case and contention that the defendant has no justifiable reason, cause or excuse whatsoever to frustrate the agreement she freely and willing entered into and for which she was duly paid the consideration. By reason of the aforesaid refusal and non-committal acts of the defendant, the plaintiff stands to be deprived of the use and enjoyment of the suit parcel that he duly purchased. The plaintiff prays for order of specific performance directed at the defendant transfer the 0. 27 Hectares piece of land comprised in No. MARAMA/LUNZA/4042 to the plaintiff, in default, the executive officer of this Honourable Court to authorized to execute the transfer forms to vest the land into the names of the plaintiff. The plaintiff prays for judgment against the defendant for:-

a. A declaration that the plaintiff is the rightful and legal owner of land parcel No. MARAMA/LUNZA/4042

b. An order of specific performance directing the defendant to transfer land parcel No. MARAMA/.LUNZA/.4042 to the plaintiff

c. Any other relief court deems fit to grant

d. Costs of this suit.

The defendant in her statement of defence states that the agreement she did not sign the said agreement. She failed to attend court to give oral evidence on the same.

This court has considered this case and the submissions herein. It has been adduced in evidence that, by an agreement dated 8th January, 2014, the defendant entered a sale of land agreement to sale the plaintiff a parcel of land measuring 0. 27 hectares comprised in MARAMA/LUNZA/1822 whose total acreage was 2. 8 hectares. The Plaintiff produced an agreement dated 8th January, 2014 as plaintiff exhibit No.1 and a translated script of the sale agreement as plaintiff Exhibit No. 2. In addition, in the agreement, the defendant herein acknowledged receipt of Kshs.200,000 as consideration for the suit property. At the time of the agreement, the subject land was subject of probate and administration proceedings in the high court at Kakamega vide HC. SUCC. No. 83 of 2008 in respect to the Estate of the Late SIMON MOMBO AMUNGA who was the father to the parties herein amongst other siblings and the registered owner of the said piece of land evidenced by a copy of the certificate of confirmation of the grant was produced as plaintiff Exhibit No. 3.

It was an express understanding amongst the plaintiff, the defendant and two other sisters namely Melisa Angolo Tuji and Lucy Martha Mkonjia that their joint entitlement as legal heirs and beneficiaries of 2. 0 acres in the subject land would be transferred to the plaintiff upon procurement of letters of administration in respect the estate of their late father. Upon completion of the succession proceedings, the subject land was subdivided into MARAMA/LUNZA/3710,3711,4043 and the suit property herein. The suit property was allocated to the defendant herein as per the certified copy of the register for the suit property produced as plaintiff Exhibit No. 4 measured 0. 27 hectares.

I find that the consideration for the suit property was agreed at Kshs.200,000/= paid in full and acknowledged by the defendant vide a written agreement witnessed by her sisters among others. Despite a demand notice to the defendant to transfer the suit property to the plaintiff the defendant still refuses to transfer the same to the plaintiff herein. PW2, Melisa Angolo Tuji corroborated the plaintiff’s evidence

The plaintiff submitted that, there is no contention as to the validity of the sale agreement dated 18th January, 2014. The defendant did not tender any evidence questioning the validity of the said agreement. Section 3(3) of the Law of Contract Act (CAP 23) requires that contracts for disposition of interests in land to be in writing, signed by all parties thereto and such signature be attested to by a witness present when the contract was being signed. The agreement herein does not fall short of these requirements in addition to the essential ingredients of a valid contract. It is therefore the plaintiff’s humble submission hat the said agreement had all the ingredients of a valid contract and hence enforceable.

The plaintiff referred to the decision of Judge Maraga as he then was in the case of Reliable Electrical Engineers Ltd & another v Kenya Petroleum Refinery Ltd (HCC 190 of 2005), he held that;

“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. 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.”

I find that the sale agreement in question is a contract valid in the face of the law. In addition damages would not be an adequate remedy in this respect as the plaintiff has paid consideration on the suit property in full which property has not been transferred to the plaintiff who now suffers great prejudice resulting from the absence of title documents to the suit property, despite having vacant possession of the same. I find that the plaintiff has proved his case on a balance of probabilities and grant the following orders;

1. A declaration that the plaintiff is the rightful and legal owner of land parcel No. MARAMA/LUNZA/4042

2. An order of specific performance directing the defendant to transfer land parcel No. MARAMA/.LUNZA/.4042 to the plaintiff

3. Costs of this suit to the plaintiff.

It is so ordered.

DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 25TH DAY OF JULY 2018.

N.A. MATHEKA

JUDGE