[2018] KEELC 227 (KLR)
The court found that the Plaintiff had fully complied with the terms of the sale agreement by paying the entire purchase price and taking possession of the suit land. The Defendant, despite being served, failed to appear or provide any defence, and did not deliver the completion documents as required. The evidence,...
Source-derived case information.
- Citation
- [2018] KEELC 227 (KLR)
- Parties
- Plaintiff: Jepothma Zilion Ltd; Defendant: Joel Otieno Sabaya
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Thika
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 364 of 2017
- Procedural Posture
- Civil Suit / Judgment
- Outcome
- Plaintiff's suit allowed in full.
- Judges
- OA Angote
- Legal Topics
- Specific Performance, Sale of Land, Injunctions, Breach of Contract
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jepothma Zilion Ltd
Plaintiff
Joel Otieno Sabaya
Defendant
Procedural Posture
Civil Suit / Judgment
Legal Issues
- 1 Whether the Defendant breached the sale agreement by failing to complete the transfer of the suit land to the Plaintiff.
- 2 Whether the Plaintiff is entitled to an order of specific performance compelling the Defendant to transfer the suit land.
- 3 Whether a perpetual injunction should issue restraining the Defendant from interfering with the suit land.
Ratio Decidendi
The court found that the Plaintiff had fully complied with the terms of the sale agreement by paying the entire purchase price and taking possession of the suit land. The Defendant, despite being served, failed to appear or provide any defence, and did not deliver the completion documents as required. The evidence, including the sale agreement, payment receipts, and correspondence, established the Plaintiff's entitlement to the property. The court held that specific performance was the appropriate remedy to compel the Defendant to transfer the land, and a perpetual injunction was warranted to protect the Plaintiff's possession and prevent interference by the Defendant or his agents. The...
Court Disposition
Plaintiff's suit allowed in full.
Orders
- An order of specific performance is issued directing the Defendant to deliver to the Plaintiff the Grant or Certificate of Lease for L.R. No. 10823/25 (Original Numbers 10823/12/4), Thika, together with all requisite completion documents for transfer.
- A perpetual injunction is issued restraining the Defendant, his servants, agents, assigns, personal representatives, and any persons claiming under him from entering, interfering, obstructing, or alienating L.R. No. 10823/25 (Original Number 10823/12/4), Thika, except for acts in consonance with completion of the...
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT THIKA
ELC CASE NO. 364 OF 2017
(FORMELY NAIROBI ELC CASE NO. 200 OF 2010
JEPOTHMA ZILION LTD..........................................................PLAINTIFF
VERSUS
JOEL OTIENO SABAYA..........................................................DEFENDANT
JUDGMENT
In the Plaint dated 30th April, 2010, the Plaintiff averred that on 25th April, 2008, he purchased a residue of lease comprising of 4. 8 hectares of L.R. No. 10823/25, Thika, together with all the improvements on the land; that he paid a deposit of Kshs. 360,000/= and that the balance was payable within 120 days or upon delivery of the Title Deed by the Defendant to him.
The Plaintiff further averred that in the meantime, it paid the entire purchase price of Kshs. 3,800,000/= and that the Defendant has declined to complete the transaction. The Plaintiff is seeking for an order of specific performance and for an order of Perpetual Injunction to issue. Although the Defendant was served with the Summons to Enter appearance, he neither entered appearance nor filed a Defence. The matter proceeded for hearing without the Defendant.
The Plaintiff’s Managing Director, P.W.1, informed the court that he entered into a sale agreement with the Defendant on 25th April, 2008 for the purchase of L.R. No. 10823/25 (the suit land); that by 11th June, 2008, the Plaintiff had made payment of Kshs. 3,800,000/= which amount was in excess of the agreed purchase price of Ksh, 3,600,000/= and that the Plaintiff took possession of the suit land.
P.W.1 produced in evidence the Sale Agreement dated 25th April, 2008 and the copies of the Bankers Cheques that were used to off-set the purchase price. The Plaintiff also produced in evidence the letter dated 5th August, 2009 addressed to the Defendants. In the said letter, the Plaintiff’s Advocate asked for the completion documents from the Defendant’s advocate.
The evidence before this court shows that the Defendant agreed to sell to the Plaintiff a parcel of land known as L.R. No. 10823/12/4 for Kshs. 3,600,000/=. The Plaintiff’s Director produced evidence showing that the Plaintiff paid the said purchase price and called for the completion documents from the Defendant.
Considering that the Plaintiff complied with the Sale Agreement of 25th April, 2008, the Defendant is under an obligation to transfer the suit land to the Plaintiff. In the circumstances, I find that the Plaintiff has proved its case on a balance of probabilities.
For those reasons, I allow the Plaintiff’s Plaint dated 30th April, 2010 in the following terms:
a. An Order of Specific performance be and is hereby issued, directing the Defendant to deliver to the Plaintiff the Grant or Certificate of Lease for L.R. No. 10823/25 (Original Numbers 10823/12/4), Thika, together with all the requisite completion documents for the purpose of having the suit land transferred to the Defendant.
b. A Perpetual Injunction be and is hereby issued restraining the Defendant, his servants, agents, assigns, personal representatives and/or any persons claiming under him from entering, interfering, obstructing, alienating and in whichsoever manner, other than doing acts in consonance with completion of the sale transaction, with L.R No. 10823/25 (Original Number 10823/12/4 Thika together with the building and improvements erected and being thereon.
c. The Defendant to pay the costs of the suit.
Dated, signed and delivered at Thika this 6th day of December, 2018.
In the absence of the Plaintiff and Defendant
Court Assistant: Diana
O.A ANGOTE
JUDGE
6/12/2018