[2016] KEELC 716 (KLR)
The court found that while the plaintiff had established the existence of a valid sale agreement, payment, possession, and Land Control Board consent, he was also responsible for registering a restriction that delayed the subdivision and transfer. Nonetheless, the defendant did not deny the sale or contest the...
Source-derived case information.
- Citation
- [2016] KEELC 716 (KLR)
- Parties
- Plaintiff: John Mwaura Mukura; Defendant: Josphat Mwai Gacenga
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 228 of 2016
- Procedural Posture
- Civil Case / Judgment
- Outcome
- Plaintiff's suit allowed; no order as to costs.
- Judges
- OA Angote
- Legal Topics
- Specific Performance, Land Sale Agreement, Transfer of Land, Land Control Board Consent
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Mwaura Mukura
Plaintiff
Josphat Mwai Gacenga
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the plaintiff is entitled to an order compelling the defendant to execute the transfer of two acres of land known as Lake Kenyatta/11/236.
- 2 Whether the plaintiff's registration of a restriction on the land bars him from seeking specific performance.
Ratio Decidendi
The court found that while the plaintiff had established the existence of a valid sale agreement, payment, possession, and Land Control Board consent, he was also responsible for registering a restriction that delayed the subdivision and transfer. Nonetheless, the defendant did not deny the sale or contest the plaintiff's claim in evidence. The court held that the plaintiff was entitled to specific performance, but the delay in finalizing the transaction was attributable to the plaintiff's own actions. Therefore, the court allowed the plaintiff's claim for transfer of the land but made no order as to costs due to the plaintiff's role in causing the delay.
Court Disposition
Plaintiff's suit allowed; no order as to costs.
Orders
- The defendant is compelled to execute the transfer documents for two acres of parcel Lake Kenyatta/11/236 in favour of the plaintiff.
- In default, the Deputy Registrar of the court shall execute the transfer documents.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
ELC CIVIL CASE NO. 228 OF 2014
JOHN MWAURA MUKURA.................................................................PLAINTIFF
=VERSUS=
JOSPHAT MWAI GACENGA...............................................................DEFENDANT
J U D G M E N T
In the Plaint dated 10th December, 2014, the Plaintiff averred that on 31st March, 2007, he executed a contract of sale of a portion of parcel of land known as Lamu Lake Kenyatta 11/236.
According to the Plaintiff, the purchase price was agreed at Kshs.20,000 per acre; that he paid Kshs.40,000 as per the agreement and that he took actual possession of the land and commenced developments.
It is the Plaintiff's case that the Land Control Board gave its consent for the transfer of the land to him but the Defendant has refused to transfer the land to him.
The Plaintiff is claiming for an order compelling the Defendant to execute the transfer document and in the event he refuses, the Deputy Registrar of this court to execute the said documents in respect of two (2) acres of parcel of land known as Lake Kenyatta/11/236.
In his Defence, the Defendant averred that it is the Plaintiff who filed a restriction on the land thus stopping the subdivision of the land; that the Plaintiff cannot file a restriction on the land then run to court for an order of specific performance and that the Plaintiff should pay for the cost of the suit.
Although the Defendant was served with a hearing notice, he did not attend court to testify.
The Plaintiff, PW1, reiterated the averments that are in his Plaint. The Plaintiff also produced the sale agreement that he entered into with the Defendant dated 31st March, 2007.
PW1 also produced in evidence the Title Deed and the official search showing that the Defendant is the registered owner of the parcel of land known as Lamu/Lake Kenyatta 11/236 measuring 4. 9 Ha.
The Defendant has not denied that he sold a portion of the suit property to the Plaintiff. In his Defence, the Defendant averred that it is the Plaintiff who registered a restriction on the land thus making it impossible for him to subdivide the land.
I have perused the official search that was produced by PW1. Indeed, the search shows that the Plaintiff registered a restriction against the title on 24th December, 2013.
Considering that the Land Control Board gave its consent for the sub-division of the suit property on 4th December, 2013, the restriction by the Plaintiff caused the delay of the said subdivision. In the circumstances it is the Plaintiff who should be blamed for the delay in the finalisation of the transaction.
It is for the reasons that I have given above that I allow the Plaintiff's Plaint dated 10th December, 2014 with no orders as to costs.
Dated, signed and delivered in Malindi this 14thday of July, 2016.
O. A. Angote
Judge