https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10507

Korir (Suing as the legal representative of the Estate of Bengeria Arap Korir - Deceased) v St Elizabeth Academy Karen Ltd (Commercial Case 251 of 2014) [2026] KEHC 10507 (KLR) (Commercial and Tax) (19 June 2026) (Judgment) Neutral citation: [2026] KEHC 10507 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Commercial Case 251 of 2014 MN Mwangi, J June 19, 2026 Between Rashid Koech Korir (Suing As The Legal Representative Of The Estate Of Bengeria Arap Korir - Deceased) Plaintiff and St Elizabeth Academy Karen Limited Defendant Judgment 1.Bengeria Arap Korir filed a Plaint dated 12th June 2014 but he died on 24th November 2022, in the course of these proceedings. He shall hereinafter be referred to as the deceased. This Court delivered a Ruling on 1st March 2024, which allowed his substitution, by his son and legal representative, Rashid Kipkoech Korir. Although the Court granted the prayers sought, when the plaint was amended, the plaintiff’s name was captured as Rashid Koech Korir and not Rachid Kipkoech Korir. 2.In the Amended Plaint dated 20th March 2024, the plaintiff claims judgment against the defendant for payment of Kshs.79,861,286.00, inclusive of interest from 18th June 2009 to September 2013. The plaintiff also claims costs of the suit. He also prays for interest at the rate of 19% per annum from the date of filing the suit until payment in full. 3.The plaintiff served the defendant with the Plaint and Summons to Enter Appearance. The defendant filed a Memorandum of Appearance dated 23rd July 2014 through the law firm of Waruhiu & Gathuru Advocates. The defendant also filed a defence and counterclaim dated 7th August 2014. The plaintiff filed an Amended Reply to the defence and defence to the counterclaim dated 20th March 2024. In the course of the proceedings, the Advocates for the defendant filed an application to cease from acting dated 28th October 2014. 4.Through a Notice of Change of Advocates dated 29th March 2017, the defendant appointed the law firm of P.M. Kimani & Company Advocates to act for it. The case however proceeded to hearing in the absence of the defendant’s Advocate and the Court (Hon. Kasango J.), delivered Judgment for the deceased on 16th May 2019, in the sum of Kshs.40,761,504.30, with interest from 13th March 2018 at 19% until payment in full, following a Settlement Agreement between the parties. 5.The defendant thereafter filed a Notice of Motion application dated 3rd June 2019, seeking to set aside the Judgment and to have the matter set down for hearing. The same Court (Kasango J.), in a Ruling delivered on 27th April 2020, allowed the application and set aside the Judgment of 16th May 2019. Thereafter, the defendant’s Counsel sought leave to cease from acting through an application dated 27th September 2021, which was allowed by Hon. Mabeya J. 6.After substitution of the deceased, the case proceeded for hearing on 15th December 2025 before this Court, which ascertained that the defendant had been served with a Hearing Notice as indicated in the affidavit of service sworn on 3rd December 2025. 7.The plaintiff’s case is that the deceased was the registered owner of parcels of land known as Mombasa/Municipality plot Nos. 815, 597, 761,758, 402, 636 and 637 located in Miritini and Bombolulu. He stated that the deceased had a lease for a school and had developed two learning institutions known as Marben Schools. 8.As per the Amended Plaint, the deceased had entered into an Agreement dated 10th February 2009 to sell the two schools to the defendant, with goodwill at a total price of Kshs.58,500,000/=. As per the Agreement, the defendant was required to pay the sum of Kshs. 25,000,000/= to the deceased’s creditors as at 10th February 2009 and if the debts did not exceed the said sum, the balance therein was to be paid to the deceased. It was averred in the Amended Plaint that it was a term of contract that the names of the schools would be replaced with the defendant’s name and the lease would be changed into the name of the defendant, as well as the payment of the debt to the creditors within 180 days of the said Agreement, and in default, the balance would accrue interest at 19% per annum. 9.It was claimed that the defendant took physical possession of the learning institutions with the buildings on the plots, books and all school equipment and started running the schools using its name. It was stated that the debtors were 21 and the total debt was Kshs.22,699,656.00, out of which the defendant paid only seven (7) of them Kshs.9,220,401.00, leaving an unpaid debt of Kshs.13,479,555.00. The plaintiff claims the sum of the unpaid debt of Kshs.13,479,555.00, the balance of the purchase price of Kshs.31,150,000/= and interest at 19% per annum. The plaintiff stated that the deceased had been issued with a Demand and Notice of intention to sue, which the defendant ignored, leading to the filing of the instant case. The plaintiff prays for this Court to enter judgment as sought in the Amended Plaint. 10.The plaintiff herein, Rashid Koech Korir, testified as PW1. He stated that his father, Bengeria Arap Korir, the initial plaintiff herein, died in November 2022. He further stated that the deceased used to share with him the details of this case as it was giving him sleepless nights. PW1 testified that he was issued with Limited Grant of Letters of Administration Ad Litem and he substituted the deceased as the plaintiff in this case. 11.PW1 adopted his witness statement dated 20th March 2024. He produced a list of documents dated 16th January 2025, as plaintiff’s exhibits 1-6. He testified that the deceased sold the properties known as Marben Schools to the defendant at Kshs.33,500,000/=, and the defendant paid a deposit of 10% at Kshs.3,350,000/=. It was his evidence that an additional sum of Kshs.25,000,000/= was to be paid to the debtors, which made the total purchase price Kshs.58,500,000/=. He stated that in the event of default, the balance was to attract interest at 19% until payment in full, if payment was not made within 180 days. He testified that the defendant defaulted and only paid some of the debtors leaving a balance of Kshs.13,479,555.00, which amount he was yet to pay to the debtors. He stated that the deceased was sued by one of the debtors in HCCC No. 430 of 2010, and the case was decided against the deceased. 12.It was the evidence of PW1 that the deceased issued the defendant with a Demand Notice dated 28th May 2013. He urged this Court to order the defendant to pay him all dues owed to the deceased. He added that as at September 2013, the outstanding amount was Kshs.79,961,286.00. He stated that the defendant was served both physically and by email. 13.This Court noted at the end of the hearing of the plaintiff’s case that the defendant’s Director, Anne Wanjiku Munene, was physically served with a Hearing Notice and through email but there was non-attendance. This Court proceeded to mark the defendant’s case as closed. 14.The plaintiff filed submissions dated 26th January 2026, through the law firm of Manthi Masika & Company Advocates. Mr. Kabu, learned Counsel for the plaintiff reiterated the facts of the case and the evidence of PW1. He submitted on two issues, being whether there was a breach of contract by the defendant and whether the plaintiff is entitled to the reliefs sought. 15.On the first issue, Mr. Kabu submitted that the defendant breached the contract by taking over possession of the schools despite not making full payment of the purchase price as was required by the Agreement dated 10th February 2009. Counsel relied on the case Kitheka v Njenga [2024] KEELC 7378 (KLR, which defined breach of contract as a violation of contractual obligations by failing to perform one’s promise or by repudiation or interfering with the other party’s performance. 16.He stated that parties herein are bound by the terms and conditions of the Agreement and cited the case of Marete v Bonyo (Civil Appeal E100 of 2022) [2023] KEHC 24830 (KLR), to support his assertion. 17.On the second issue, Counsel submitted that the plaintiff’s evidence remains unchallenged and unopposed given that the defendant did not attend the hearing of the case to testify and produce its evidence. He cited the case of Gateway Insurance Co. Ltd v Jamila Suleiman & Aisha Mwaro Okumu (Civil Appeal 227 of 2017) [2018] KEHC 1855 (KLR), which addressed the consequences of a party failing to adduce evidence, which means that the evidence already tendered is uncontroverted and unchallenged. 18.Mr. Kabu submitted that the plaintiff is entitled to the reliefs being sought as it was part of the contract, which bound the parties herein, unless there is proof of undue influence, coercion or fraud as was stated in the case of National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & another [2001] KECA 362 (KLR). 19.Counsel argued that interest is a justified demand for the defendant’s failure to pay the purchase price on time, and relied on the case of Karanja t/a Ndungu Karanja & Co Advocates v Omuga John Otieno Maurice (Practicing in the Name of) Otieno-Omuga & Ouma Advocates [2024] KEHC 4435 (KLR), which was of the same considered view. 20.Mr. Kabu further submitted that the total sum owing to the plaintiff after sixteen (16) years, stood at Kshs.159,120,103.00, inclusive of interest. He urged this Court to allow the plaintiff’s claim and grant the orders sought. Analysis And Determination. 21.I have considered the Amended Plaint and the evidence of PW1, Rashid Koech Korir, the plaintiff herein. I have also taken into account the list of exhibits marked as plaintiff’s exhibits 1-6, as well as the plaintiff’s submissions. The issue for determination is whether the plaintiff’s suit is merited, to warrant being granted the orders sought. 22.This Court has noted the Agreement between the deceased and the defendant dated 10th February 2009, which has given rise to this suit between the parties herein. It was a term of contract that the consideration would be Kshs.33,500,000/=. A deposit of 10% was payable upon execution of the said Agreement. The same was paid and duly acknowledged, leaving a balance of Kshs.31,150,000/= as per Clause 2 thereof. It was also a term of the Agreement that the defendant would pay an additional Kshs.25,000,000/= to the debtors, and that the completion date would be in 180 days. The total amount payable was Kshs.58,500,000/= inclusive of goodwill. The defendant defaulted leading to issuance of a Demand Notice, dated 19th January, 2013, wherein the claim was Kshs. 40,106,920.00. 23.This Court also notes the Further Agreement for Sale dated 13th March 2018, which confirmed payments made on diverse dates as listed thereon, of Kshs 17,738,495.70, leaving a balance of Kshs.40,761,504.30, out of the total purchase price of Kshs.58,500,000/=. 24.No evidence was tendered by the defendant that it paid the balance, as it did not attend the hearing of this case, to challenge the plaintiff’s case or adduce its own evidence. In the counterclaim, the defendant claimed for specific performance of the Agreement for Sale, and prayed for the plaintiff to be ordered to make available all completion documents, including title documents, and to complete the sale. The defendant asserted that it paid Kshs.16,700,495.00 to the plaintiff. In addition, the defendant prayed for costs of the suit and the counterclaim. 25.Since the defendant did not adduce any evidence or produce any documents to support its allegation in the counterclaim, as it did not attend Court during the hearing, its counterclaim remains a mere statement of facts, which was not proved on a balance of probabilities. The counterclaim therefore stands dismissed for want of prosecution. 26.As earlier stated in this Judgment, the plaintiff’s case was unchallenged by the defendant at the hearing of the case. In the case of Gateway Insurance Co. Ltd v Jamila Suleiman & Aisha Mwaro Okumu (supra), the Court held as follows on failure by a party to adduce evidence -“What are the consequences of a party failing to adduce evidence? In the case of Motex Knitwear Limited vs. Gopitex Knitwear Mills Limited, Nairobi (Milimani) HCCC No. 834 of 2002, Lesiit, J, citing the case of Autar Singh Bahra and Another vs. Raju Govindji, HCCC No. 548 of 1998, appreciated that: “Although the Defendant has denied liability in an amended Defence and counterclaim, no witness was called to give evidence on his behalf. That means that not only does the defence rendered by the 1st plaintiff’s case stand unchallenged, but also that the claims made by the Defendant in his Defence and Counter-claim are unsubstantiated. In the circumstances, the Counter-claim must fail”. “Again in the case of Trust Bank Limited vs. Paramount Universal Bank Limited & 2 Others Nairobi (Milimani) HCCS No. 1243 of 2001 the learned judge citing the same decision stated that it is trite that where a party fails to call evidence in support of its case, that party’s pleadings remain mere statements of fact since in so doing the party fails to substantiate its pleadings. In the same vein, the failure to adduce any evidence means that the evidence adduced by the plaintiff against them is uncontroverted and therefore unchallenged.” 28.This Court is satisfied that there was a valid Sale Agreement between the parties herein, which bound them to perform their respective obligations. It trite that parties to a contract must comply with the terms therein, as was held in the case of William Kazungu Karisa v Cosmas Angore Chanzera [2006] eKLR, as follows:-“The basic rule of the law of contract is that the parties must perform their respective obligation in accordance with the terms of the contract executed by them”. 28.Despite failing to pay the full agreed purchase price, the defendant took possession of the school and has been using it for its own gain to the detriment of the deceased, who passed away before enjoying the full proceeds of the Sale Agreement, made more than seventeen (17) years ago. This goes to show that the claim of interest is justified given that it was a term of the Sale Agreement that default would attract interest at 19% per annum, and given the number of years that have gone by, without full compliance with the terms of the said Agreement. 29.In the result, this Court allows the plaintiff’s suit and makes the following orders-i.Judgment is hereby entered in favour of the plaintiff as against the defendant in the sum of Ksh.79,861,286.00;ii.Interest on the above amount is hereby granted as per prayer (c) of the Amended Plaint dated 20th March 2024;ii.The defendant’s counterclaim is hereby dismissed with costs to the plaintiff; andiv.The plaintiff is also awarded the costs of the main suit.It is so ordered. DATED, SIGNED AND DELIVERED AT KIAMBU ON THIS 19TH DAY OF JUNE 2026. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.NJOKI MWANGIJUDGEIn the presence of:-Mr. Kabu for the plaintiffNo appearance for the defendantMs Julia – Court Assistant.NJOKI MWANGI, J.