[2019] KEELC 4585 (KLR)
The court found that the plaintiff had fully complied with all terms of the sale agreement, including payment of the full purchase price and taking possession of the property. The defendant, despite being registered as the proprietor of the suit property, failed to deliver completion documents and effect transfer to...
Source-derived case information.
- Citation
- [2019] KEELC 4585 (KLR)
- Parties
- Plaintiff: Kenneth Ngugi Njoroge; Defendant: Family City Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 1161 of 2016
- Procedural Posture
- Land and Property Suit / Judgment
- Outcome
- Judgment for the plaintiff as prayed in prayers (a) to (e) of the plaint.
- 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
Kenneth Ngugi Njoroge
Plaintiff
Family City Limited
Defendant
Procedural Posture
Land and Property Suit / Judgment
Legal Issues
- 1 Whether the plaintiff is entitled to specific performance of the agreement for sale of LR No.28649/104.
- 2 Whether the plaintiff is entitled to an injunction restraining the defendant from dealing with the suit property adversely to the plaintiff.
- 3 Whether the defendant breached the agreement by failing to deliver completion documents and transfer the property to the plaintiff.
Ratio Decidendi
The court found that the plaintiff had fully complied with all terms of the sale agreement, including payment of the full purchase price and taking possession of the property. The defendant, despite being registered as the proprietor of the suit property, failed to deliver completion documents and effect transfer to the plaintiff. The absence of any defence or appearance by the defendant further strengthened the plaintiff's case. The court held that this was a proper case for the grant of specific performance, as the plaintiff had established his entitlement to the property and the defendant's continued refusal to transfer the same constituted a breach of contract. The court also found...
Court Disposition
Judgment for the plaintiff as prayed in prayers (a) to (e) of the plaint.
Orders
- An order of injunction restraining the defendant from subdividing, selling, transferring, disposing, alienating, charging or otherwise dealing with LR No.28649/104 adversely to the plaintiff.
- An order for specific performance compelling the defendant to deliver completion documents and execute the transfer of LR No.28649/104 to the plaintiff.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
MILIMANI LAW COURTS
ELC CASE NO.1161 of 2016
KENNETH NGUGI NJOROGE........................PLAINTIFF
=VERSUS=
FAMILY CITY LIMITED..............................DEFENDANT
JUDGEMENT
1. The Plaintiff brought this claim against the defendant seeking the following reliefs:-
a) That this Honourable Court do grant an order of injunction to restrain and prohibit the defendant either by itself or through its servants and/or agents from subdividing, selling, transferring disposing, alienating, charging or otherwise dealing with the parcel of land comprising of L.R No.28649/104 in any other manner that is adverse to the Plaintiff’s claim herein.
b) That this Honourable Court to order the defendant to specifically perform its part and the terms and obligations imposed upon it by the Agreement for sale dated 18th October,2010 and more particularly to deliver completion documents and to execute the transfer for the suit property L.R No.28649/104 to enable the Registrar of Titles to register the transfer of 10 acres in favour of the plaintiff.
c) That in default of the defendant executing the said transfer within 14 days of this Court Order the Deputy Registrar of the High Court of Kenya be authorized by this order to execute the said transfer and other attendant completion documents necessary for the Registrar of Land to register the transfer of plot known as L R No.28649/104 in favour of the plaintiff.
d) That a permanent injunction do issue forthwith restraining the defendant either by itself ,its servants and or agents from interfering with the parcel of land known as plot Number L R No.28649/104.
e) Costs of the suit.
f) Any other relief that this Honourable Court deem fit and just to grant.
2. The defendant who was duly served with summons to enter appearance neither entered appearance nor filed a defence. This case therefore proceeded by way of formal proof.
3. The defendant herein was owner of LR No.3554/7 situate at Kamiti corner in Kiambu County. The defendant through its agents Citi Villas Limited advertised the property which was to be sold upon subdivision. The plaintiff got interested in purchasing one of the properties out of the land held by the defendant.
4. The defendant’s agent gave the plaintiff a letter of offer dated 21st July 2010in which the plaintiff was to purchase one plot measuring 0. 045 hectares. The purchase price was set at Kshs.1,500,000/=. The plaintiff was to pay 50% the purchase price upon acceptance of the letter of offer. The plaintiff accepted the offer and paid Kshs.750,000/= being 50% of the purchase.
5. The plaintiff and the defendant signed a sale agreement on 18th October 2010. The plaintiff was to pay kshs.250,000/= on or before 30th October 2010 and 250,000/=being the final payment on or before 30th November 2010. The plaintiff fully complied with the terms of the agreement. He took possession of the suit property where he is to date. Before registration of the subdivisions, the plot he bought was No.151. After registration it became LR No.28649/104.
6. The defendant declined to send completion documents. After the subdivisions were registered in the defendant’s name, the defendant has failed to transfer the same to the plaintiff.
7. During the hearing, the plaintiff and his wife testified and produced documents relating to this property which is the subject of the suit. I have gone through the documents. Upon signing the agreement, the defendant acknowledged that it had received Kshs.1, 000,000/=. Later the plaintiff paidKshs.250,000/=by bankers cheque on 9. 11. 2010 and another bankers cheque of Kshs.250,000/= on 29th November 2010.
8. The Plaintiff produced an official search which shows that the suit property is now registered in the defendant’s name. The plaintiff has already met all the terms under the agreement. The ball is now in the court of the defendant who has failed to perform its part of the agreement. This is a perfect case where the remedy of specific performance ought to be granted. I find that the plaintiff has proved his case to the required standard i.e a balance of probabilities. I enter judgement for him against the defendant in terms of prayers (a) to (e) of the plaint dated 21st September 2016.
Dated, Signed and delivered at Nairobi on this 7thday of February 2019.
E.O.OBAGA
JUDGE
In the absence of the Plaintiff’s advocate who was aware of time and date of delivery of Judgement.
Court Assistant: Hilda
E.O.OBAGA
JUDGE