[2018] KEELC 28 (KLR)
The court found that the defendant partially complied with the sale agreement by transferring only 10.47 acres out of the agreed 13 acres, leaving 2.53 acres untransferred. The plaintiff, having paid the full purchase price, was entitled to either specific performance for the transfer of the remaining land or, if...
Source-derived case information.
- Citation
- [2018] KEELC 28 (KLR)
- Parties
- Plaintiff: Musembi Philip Kalloki; Defendant: Priscila Kilonzo Mutiso
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Makueni
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 90 of 2017
- Procedural Posture
- Land and Property Suit / Judgment
- Outcome
- Judgment for the plaintiff.
- Legal Topics
- Specific Performance, Breach of Contract, Land Sale Agreements, Damages Assessment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Musembi Philip Kalloki
Plaintiff
Priscila Kilonzo Mutiso
Defendant
Procedural Posture
Land and Property Suit / Judgment
Legal Issues
- 1 Whether the defendant breached the sale agreement by failing to transfer the full 13 acres to the plaintiff.
- 2 Whether the plaintiff is entitled to specific performance or, in the alternative, damages for the untransferred portion of land.
- 3 What is the appropriate measure of damages for the breach of contract.
Ratio Decidendi
The court found that the defendant partially complied with the sale agreement by transferring only 10.47 acres out of the agreed 13 acres, leaving 2.53 acres untransferred. The plaintiff, having paid the full purchase price, was entitled to either specific performance for the transfer of the remaining land or, if not possible, compensation at the current market value. The court rejected the plaintiff's counsel's proposed higher valuation and general damages, awarding instead KES 506,000 as the market value for 2.53 acres and KES 100,000 as general damages for breach, reflecting the partial compliance by the defendant. The court also awarded costs to the plaintiff.
Court Disposition
Judgment for the plaintiff.
Orders
- Specific performance of the agreement dated 25th July, 2011 or, in the alternative, the defendant to pay general damages for breach of contract amounting to KES 100,000 plus the market value of 2.53 acres amounting to KES 506,000.
- Costs of the suit awarded to the plaintiff.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MAKUENI
ELC NO. 90 OF 2017
MUSEMBI PHILIP KALLOKI ---------------------------- PLAINTIFF
VERSUS
PRISCILA KILONZO MUTISO --------------------------DEFENDANT
JUDGMENT
1)By his amended plaint dated 15th September, 2017 and deemed as duly filed and served on 3rd November, 2017 pursuant to the application dated 15th September, 2017 and filed in court on 18th September,2017, the Plaintiff prays for judgement against the Defendant for :-
a) Specific performance of the agreement dated 25/7/2011 or in the alternative the Defendant be ordered to pay general damages for breach of the contract dated 25/7/2011 calculated at the prevailing market for land situate within the local area.
b) That the costs of this suit be awarded to the Plaintiff.
c) Any other relief that the court deems fit and just grant.
2)The matter proceeded as undefended suit after the Defendant failed to enter appearance and to file her defence despite being served with summons.
3)During the hearing, the Plaintiff adopted his undated statement filed in court on the 23rd November, 2017 as his evidence. He also produced his four(4) documents in his two lists of documents dated 31st August, 2016 and 13th November, 2017 and filed in court on the 1st September, 2016 and 23rd November, 2017 as PEX Nos. 1 to 4 respectively.
4)The Plaintiff’s evidence in brief was that on the 25th July, 2011 he and the Defendant entered into a sale agreement for plot number 1212 – 3022 Mang’elete Settlement Scheme at a purchase price of Kshs. 780,000/=. He said that he paid the Defendant the full purchase price. According to him the sale agreement was for sale and transfer of 13 acres but in breach of it, the Defendant excised and transferred to him 10. 47 acres leaving 2. 53 acres untransferred. He said that this was confirmed by Mr. Urbanus Mutuku Munyao who is a surveyor vide his survey report dated 22nd August, 2017 (PEX NO. 4). He said that he prays for an order that in the event that the Defendant does not transfer to him the said 2. 53 acres of land, she should compensate him at the current market value of the land together with interest. He said that the current market value per acre is Kshs. 200,000 per acre. He also sought an award of damages.
5)The Plaintiff’s counsel in his submissions referred to the Blacks Law Dictionary Eighth Edition by Bran Garner at page 1435 which defines what specific performance entails. He also cited the case of Aziz Vs Bhatia Brothers Ltd(2001) 1EA7which held that:-
“A party who has performed his part of the bargain may be assisted by the court to enforce the contract against the defaulting party…”
6)It should be noted that the counsel never provided copies of these authorities. Be that as it may, he proposed that the Plaintiff be awarded Kshs, 300,000 x 2. 53 acres which will add up to Kshs. 759,000 plus Kshs. 1,000,000 being general damages for breach of contract.
7)Having read the evidence on record as well as the submissions that were filed, it seems to me that the Defendant partially complied with the terms of the sale agreement . This is why the Plaintiff prays for the balance of 2. 53 acres or its equivalent. This would therefore be Kshs. 200,000 x2. 53 acres = 506,000/= and not Kshs. 759,000 which the counsel has proposed that the Plaintiff be awarded. As for general damages of Kshs. 1,000,000 proposed by his counsel, no basis was put forth for the sum in question. In my view, the sum of Kshs. 100,000 would suffice under the circumstances given the fact of partial compliance by the Defendant. I hereby proceed to enter judgement for the Plaintiff and against the defendant as hereunder:-
a) Specific performance of the agreement dated 25th July, 2011 or in the alternative the Defendant do pay general damages for breach of contract amounting to Kshs. 100,000 plus the correct market value of 2. 53 acres amounting to Kshs. 506,000.
b) Costs of the suit.
SIGNED, DATEDandDELIVEREDatMAKUENIthis13THday ofDECEMBER, 2018
MBOGO C.G
JUDGE
IN THEPRESENCE OF;
Mr. Nagwere holding brief for
Mr. Mwongela for the Plaintiff
Mr. Kwemboi Court Assistant
MBOGO C.G, JUDGE
13/12/2018