[2019] KEELC 4852 (KLR)
The court found that the plaintiff and defendant entered into a valid, written, and witnessed sale agreement for half an acre of land, with full consideration paid by the plaintiff. The defendant, despite undertaking to facilitate succession and transfer, failed to give vacant possession or effect transfer. The...
Source-derived case information.
- Citation
- [2019] KEELC 4852 (KLR)
- Parties
- Plaintiff: John Nyongesa Nderema; Defendant: John Makokha Nyongesa
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 150 of 2017
- Procedural Posture
- Land Case / Judgment
- Outcome
- judgment_for_plaintiff
- Judges
- FM Njoroge
- Legal Topics
- Specific Performance, Sale of Land, Vacant Possession
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Nyongesa Nderema
Plaintiff
John Makokha Nyongesa
Defendant
Procedural Posture
Land Case / Judgment
Legal Issues
- 1 Whether the defendant is obligated to specifically perform the sale agreement by transferring half an acre from plot number 20 Marinda Farm to the plaintiff.
- 2 Whether the plaintiff is entitled to vacant possession of the suit land as per the agreement.
- 3 Whether the plaintiff is entitled to costs of the suit.
Ratio Decidendi
The court found that the plaintiff and defendant entered into a valid, written, and witnessed sale agreement for half an acre of land, with full consideration paid by the plaintiff. The defendant, despite undertaking to facilitate succession and transfer, failed to give vacant possession or effect transfer. The agreement was clear, executed, and attested by witnesses and an advocate. The defendant did not contest the claim, and the evidence was uncontroverted. The court held that the plaintiff was entitled to specific performance and costs as prayed, as the contract was valid and enforceable, and damages would not be an adequate remedy for the plaintiff's loss of land rights.
Court Disposition
judgment_for_plaintiff
Orders
- An order of specific performance requiring the defendant to give vacant possession and transfer half an acre from plot number 20 Marinda Farm to the plaintiff.
- The defendant shall pay the costs of the suit.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 150 OF 2017
JOHN NYONGESA NDEREMA ………...…………… PLAINTIFF
VERSUS
JOHN MAKOKHA NYONGESA……………………..DEFENDANT
JUDGMENT
1. The plaintiff filed this suit vide a plaint dated 12/9/2017 which seeks the following orders against the defendant:-
(a) An order of specific performance requiring the defendant herein to give vacant possession and/or transfer half an acre from plot number 20 Marinda Farm to the plaintiff herein;
(b) General damages;
(c) Costs of this suit
(d) Any other relief this court may deem fit and just to grant.
THE PARTIES PLEADINGS
The Plaintiff’s Case
2. According to the plaint the plaintiff and the defendant entered into a written sale agreement on or about 28/5/2013 vide which the defendant sold half an acre of land from plot number 20 Marinda Farm (the suit land) at the consideration of Ksh 100,000/=which sum the plaintiff paid in full upon the execution of the agreement.
3. The plaintiff pleads that as the land was still in the name of the defendant’s late father, the defendant undertook to lodge succession proceedings to facilitate transfer. It was a term of the agreement that the defendant would cede vacant possession to the plaintiff upon execution of the agreement. However the defendant has failed refused and/or neglected to give vacant possession and or transfer the suit land to the plaintiff as per the agreement hence this suit.
The Defendant’s Case
4. The defendant though served never filed his defence and the suit proceeded to hearing ex-parte.
THE EVIDENCE OF THE PARTIES
The Plaintiff’s Evidence
5. The plaintiff testified on 29/11/2018and adopted his statement filed in the record. He produced the agreement between him and the defendant as PExh 1 and a copy of a demand notice to the defendant as PExh 2.
DETERMINATION
6. I have examined the agreement between the parties. It is executed by the parties and attested to by four witnesses in the presence of the advocate who drew it. The terms in that agreement are as restated by the plaintiff in the plaint and in his oral evidence and his written statement.
7. Consequently, I find that the plaintiff’s claim has merit. I therefore enter judgment in favour of the plaintiff as prayed in prayers (a) and(c) the plaint dated 12/9/2017.
Dated, signed and delivered at Kitale on this 29th day of January, 2019.
MWANGI NJOROGE
JUDGE
29/01/2019
Coram:
Before - Hon. Mwangi Njoroge, Judge
Court Assistant - Picoty
Mr. Bororio for the plaintiff
N/A for the defendant
COURT
Judgment read in open court.
MWANGI NJOROGE
JUDGE
29/01/2019