[2018] KEELC 385 (KLR)
The court found that the plaintiff had proved her case on a balance of probabilities, having paid the full purchase price and fulfilled her obligations under the sale agreement. The 1st defendant failed to complete the sale and transfer the suit property as required. The agreement expressly provided for a refund of...
Source-derived case information.
- Citation
- [2018] KEELC 385 (KLR)
- Parties
- Plaintiff: Jane Waruguru Ngugi; Defendant: Summerland Valley Developers Company Limited; Defendant: Hellen Wandaka
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 143 of 2015
- Procedural Posture
- Land and Property Suit / Judgment
- Outcome
- Plaintiff's claim allowed in part; refund of purchase price, general damages, and costs awarded.
- Judges
- AK Bor
- Legal Topics
- Specific Performance, Breach of Contract, Refund of Purchase Price, Damages for Breach, Sale of Land, Failure to Complete Transfer
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Jane Waruguru Ngugi
Plaintiff
Summerland Valley Developers Company Limited
Defendant
Hellen Wandaka
Defendant
Procedural Posture
Land and Property Suit / Judgment
Legal Issues
- 1 Whether the plaintiff is entitled to specific performance of the sale agreement for the suit property.
- 2 Whether the plaintiff is entitled to a refund of the purchase price with interest due to breach of contract by the 1st defendant.
- 3 Whether the plaintiff is entitled to general damages for breach of contract.
Ratio Decidendi
The court found that the plaintiff had proved her case on a balance of probabilities, having paid the full purchase price and fulfilled her obligations under the sale agreement. The 1st defendant failed to complete the sale and transfer the suit property as required. The agreement expressly provided for a refund of the purchase price in the event of default by the 1st defendant. The court declined to grant the plaintiff the current market value of the land as general damages, as this was not pleaded and the plaintiff delayed in filing suit. Instead, the court awarded the plaintiff a refund of the purchase price with interest at court rates from the date of filing suit, general damages of...
Court Disposition
Plaintiff's claim allowed in part; refund of purchase price, general damages, and costs awarded.
Orders
- The plaintiff is awarded a refund of Kshs. 1,280,000 with interest at court rates from the date of filing suit until payment in full.
- The plaintiff is awarded general damages in the sum of Kshs. 1,000,000 for the four plots.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
MILIMANI LAW COURTS
ELC. CASE NO. 143 OF 2015
JANE WARUGURU NGUGI..................................................PLAINTIFF
-VERSUS-
SUMMERLAND VALLEY DEVELOPERS
COMPANY LIMITED................................................1ST DEFENDANT
HELLEN WANDAKA...............................................2ND DEFENDANT
JUDGEMENT
1. The Plaintiff entered into an agreement with the 1st Defendant for the purchase of parcel numbers 90, 91, 99 and 100 that were to be excised from Kajiado/Kisaju/3041 situated in Kitengela, at the agreed price of Kshs. 320,000/= per plot amounting to Kshs. 1,280,000/= in total, on 1/3/2010. The Plaintiff paid the initial deposit of Kshs. 50,000/= and was to pay the balance within 6 months, which was the completion period. The Plaintiff claims that she paid the purchase price in full but the 1st Defendant refused to take steps towards the completion of the sale. The Plaintiff seeks specific performance of the agreement. In the alternative, she seeks a refund of the sum of Kshs. 1,280,000/= with interest at commercial rates, damages for breach of contract and costs of the suit.
2. The Defendants were served but did not file a defence. The Plaintiff gave evidence when this matter was heard on 23/1/2017 by Lady Justice Gitumbi. She produced a copy of the sale agreement which was executed by the 1st Defendant. The completion date under the agreement was six months from the date of the agreement, time being of essence. Completion was to take place in the office of Musinga & Co. Advocates. The 1st Defendant was to deliver the original documents for portions numbers 90, 91 and 100; duly executed transfer forms in favour of the Plaintiff and valid rates and rent clearance certificates. The agreement provided that in default of delivering the completion documents within six months, the 1st Defendant would refund the purchase price of Kshs. 1,280,000/=. The land was sold in vacant possession. She also produced copies of the receipts dated 22/10/2010 issued by the 1st Defendant for payment of Kshs. 350,000/= and 750,000/= as well as a copy of the cheque dated 12/1/2011 for Kshs. 180,000/=. A demand letter was issued to the 1st Defendant on 7/3/2013 and 5/3/2014 copies of which the Plaintiff produced in court.
3. The Plaintiff filed submissions. She argues that she has sufficiently demonstrated that she fulfilled her obligations under the agreement of sale. She relied on the case of Gatobu M’Ibuutu Karathu v Christopher Mureithi Kubai [2014] eKLRin which the court quoted the decision of Lesit J. in M’nyeri M’rimunya v Humbrey Twinga and Hillary Kaara HCCC No. 113/2011 on the point that any party in default of the agreement shall pay the innocent party the purchase price being agreed damages for breach of the contract. The Plaintiff urged the court to also award the Plaintiff the valuation costs she expended of Kshs. 23,000/=.
4. The Defendants were served but did not file defence. The court has considered the plaint and the evidence together with the submissions of the Plaintiff.
5. The issue for determination is whether the court should grant the prayers sought. The Plaintiff sought damages of Kshs. 5,320,000/= based on the valuation of the Suit Property which indicated that the land was valued at Kshs. 6,600,000/= as at 26/10/2016. The court declines to grant this sum sought by the Plaintiff as general damages. The Plaintiff waited for more than 4 years before filing suit.
6. The court awards the Plaintiff general damages in the sum of Kshs. 1 million for the four plots. The court declines to award the Plaintiff the costs of the valuation since these were not pleaded in the plaint.
7. The court finds that the Plaintiff has proved her claim on a balance of probabilities and grants prayer (b) of the Plaint with interests at court rates from the date of filing suit until payment in full, together with the costs of the suit.
Dated and delivered at Nairobi this 28th day of November 2018.
K. BOR
JUDGE
In the presence of: -
Mr. J.M. Kariuki holding brief for Mrs. Mbanya for the Plaintiff
Mr. V. Owuor- Court Assistant
No appearance for the Defendants