[2008] KEHC 1817 (KLR)
The court found that the defendants admitted to entering into a consent order to pay the balance of the purchase price for the land within six months but failed to do so. The defendant's attempt to pay with a post-dated cheque after the expiry of the period did not cure the default. The court held that the plaintiff...
Source-derived case information.
- Citation
- [2008] KEHC 1817 (KLR)
- Parties
- Plaintiff: Lydia Wanjiru Kagiri; Defendant: Francis Waithaka Kiriu; Defendant: Teresia Waithira Kiriu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 2320 of 2007
- Procedural Posture
- Civil Case / Summary Judgment Ruling
- Outcome
- Judgment for the plaintiff; summary judgment granted; vacant possession ordered; deposit forfeited; costs to plaintiff.
- Legal Topics
- Sale of Land, Specific Performance, Eviction, Consent Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lydia Wanjiru Kagiri
Plaintiff
Francis Waithaka Kiriu
Defendant
Teresia Waithira Kiriu
Defendant
Procedural Posture
Civil Case / Summary Judgment Ruling
Legal Issues
- 1 Whether the defendant breached the sale agreement by failing to pay the balance of the purchase price within the stipulated period.
- 2 Whether the plaintiff is entitled to summary judgment for vacant possession and forfeiture of deposit.
- 3 Whether the defendant's claim regarding Land Control Board consent affects the enforceability of the agreement.
Ratio Decidendi
The court found that the defendants admitted to entering into a consent order to pay the balance of the purchase price for the land within six months but failed to do so. The defendant's attempt to pay with a post-dated cheque after the expiry of the period did not cure the default. The court held that the plaintiff was entitled to summary judgment for vacant possession and forfeiture of the deposit, as the defendants had not complied with the terms of the sale agreement or the consent order. The argument regarding Land Control Board consent was rejected as the defendants' default was on payment, not on the procurement of consent. The Law Society of Kenya Terms and Conditions of Sale...
Court Disposition
Judgment for the plaintiff; summary judgment granted; vacant possession ordered; deposit forfeited; costs to plaintiff.
Orders
- Defendants to give vacant possession of LR Komothai/Kibichoi/702 to the plaintiff.
- Sums paid towards the deposit of the purchase of land are forfeited according to the Law Society Agreement Terms.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 2320 of 2007
LYDIA WANJIRU KAGIRI ………………………………. PLAINTIFF
VERSUS
FRANCIS WAITHAKA KIRIU …………..………. 1ST DEFENDANT
TERESIA WAITHIRA KIRIU …………..………… 2ND DEFENDANT
RULING
SUMMARY JUDGMENT
I: Background
1. This suit concerns land LR Komothai/Kibichoi 702. A sale agreement was entered into with the defendant. It was not completed because the defendant only made partial payment. He nonetheless took possession of the said land.
2. The plaintiff herein filed this suit on 29 November 2007 seeking the eviction of the defendant or alternatively the specific performance of the agreement.
3. An application dated 29. 11. 07 sought injunctive orders from the defendant restraining him from remaining on the land. This was actually a mandatory injunction not available in Kenya save for special circumstances.
4. Nonetheless the said parties appeared for the inter parties hearing on 18. 12. 07. Both opted to enter into consent that:-
“Defendant [be] allowed to pay balance of purchase price for land parcel Komothai/Kibichoi/702 for Ksh.856,500/- within 6 months and there after a transfer be made.”
5. The defendant defaulted in the payment of the purchase sum. The defendant stated that he has now a cheque. This cheque was post dated and as such no funds was available to the plaintiff. The six months has since expired.
6. The defendant claim the plaintiff failed to obtain Land Control Board consent.
II: Held
7. That the defendants admits entering into the consent, admits that he defaulted in payment of the balance of the funds. He now wants 7 more days to pay sum referred.
8. This court hereby grants the application for summary judgment. That the defendant herein having failed to purchase
LR Komothai/Kibichoi/702 measuring 23 acres from Ksh.1. 800,000/-.
9. And having failed to meet the conditions of the sale agreement to pay the balance of the purchase price on or before 18. 6.08 being 6 months from the date of the consent (18. 12. 07). Having failed to comply with the Law society of Kenya Terms and Conditions of sale. Judgment be and is hereby entered in favour of the plaintiff and against the 1 and 2 defendants.
10 That the two defendants do give vacant possession of land. The sums paid towards the deposit of the purchase of land is forfeited according to the Law Society Agreement Terms.
11. The plaintiff/applicant will have the costs of this suit.
DATED THIS 1ST DAY OF JULY 2008 AT NAIROBI.
M.A. ANG’AWA
JUDGE
A.O. Seneti instructed by Seneti & Co. Advocates for the plaintiff
B.W. Gatheru instructed by B.W. Gatheru & Co. Advocates for the defendant.