[2012] KEHC 4277 (KLR)
The court found that the plaintiffs had proved the existence of the sale agreement and the defendant's breach by selling the land to a third party after receiving an advance payment. The agreement contained a specific remedy for breach, entitling the plaintiffs to a refund of Kshs.150,000/- and a penalty of 25% of...
Source-derived case information.
- Citation
- [2012] KEHC 4277 (KLR)
- Parties
- Plaintiff: Laban Mbogo Kihara; Plaintiff: Rose Muthoni Mwaura; Defendant: John Nganga Njogu
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 87 of 2011
- Procedural Posture
- Civil Suit / Judgment After Formal Proof; Interlocutory Judgment Previously Entered Due to No Defence
- Outcome
- Judgment for the plaintiffs; refund, penalty, interest, and costs awarded.
- Judges
- CW Meoli
- Legal Topics
- Sale of Land, Specific Performance, Breach of Contract, Remedies for Breach
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Laban Mbogo Kihara
Plaintiff
Rose Muthoni Mwaura
Plaintiff
John Nganga Njogu
Defendant
Procedural Posture
Civil Suit / Judgment After Formal Proof; Interlocutory Judgment Previously Entered Due to No Defence
Legal Issues
- 1 Whether the defendant breached the sale agreement for land with the plaintiffs.
- 2 Whether the plaintiffs are entitled to specific performance or, alternatively, refund of monies paid, interest, and penalty as per the agreement.
Ratio Decidendi
The court found that the plaintiffs had proved the existence of the sale agreement and the defendant's breach by selling the land to a third party after receiving an advance payment. The agreement contained a specific remedy for breach, entitling the plaintiffs to a refund of Kshs.150,000/- and a penalty of 25% of the purchase price (Kshs.162,500/-). The court declined to order specific performance, instead enforcing the contractual remedies agreed by the parties. Interest was awarded only on the refunded amount from the date of judgment. Costs were also awarded to the plaintiffs.
Court Disposition
Judgment for the plaintiffs; refund, penalty, interest, and costs awarded.
Orders
- The defendant shall refund Kshs.150,000/- to the plaintiffs.
- The defendant shall pay a penalty of Kshs.162,500/- to the plaintiffs as per the agreement.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT MALINDI
CIVIL SUIT 87 OF 2011
LABAN MBOGO KIHARA
ROSE MUTHONI MWAURA………………………….PLAINTIFFS
-VERSUS-
JOHN NGANGA NJOGU………………………………DEFENDANT
JUDGEMENT
1. On 7th August, 2010 the two Plaintiffs entered into an agreement with the Defendant for the sale of 5 acres out of a land parcel LR LAMU/HINDI/MAGOGONI/310 owned by the Defendant. The agreed purchase price was Kshs.650,000/-. It is the Plaintiff`s case that the Defendant has breached the sale agreement by offering the entire land parcel to a third party despite receiving an advance payment of Kshs.150,000/-.
2. The Plaintiff`s prayer is for specific performance or in the alternative, the refund of monies paid over, interest thereon and a penalty in terms of special condition No. 6 of the sale agreement.
3. The Defendant did not enter appearance or file a defence and an interlocutory judgement was entered on 4/8/11. During formal proof, the Plaintiffs adduced oral and documentary evidence in support of their claim. They asked the court to order specific performance against the Defendant.
4. There is no doubt that the Plaintiffs entered into the sale agreement with the Defendant. The Plaintiffs have through their evidence proved the allegations of breach particularized in the plaint.
5. A specific remedy for breach was prescribed by the parties in their agreement, as stipulated in special condition No.6. The Plaintiffs are clearly entitled to a refund of monies paid to the Defendant pursuant to the agreement, that is Kshs.150,000/-. They are also entitled to the agreed penalty being 25% of the purchase price, which is Kshs.162. 500/-.
6. Regarding interest, the same will only apply to the sum of Kshs.150,000/- proven as paid over to the Defendant, starting from the date of this judgment.
7. The Plaintiffs are awarded the costs of the suit. Judgement is entered accordingly for the Plaintiffs against the defendant.
Delivered and signed on this 22ndday of February, 2012 at Malindi
in the presence of Mr. Ochieng holding brief for Mr.
Nyabicha for plaintiff, No appearance for defendant.
C. W. Meoli
JUDGE