[2011] KEHC 2417 (KLR)
The court found that the plaintiff had performed his contractual obligations under the sale agreement, including payment of the purchase price (with the balance deposited and ready for transfer), payment of outstanding rates, and additional facilitation payments. The defendant failed to honour his part by not...
Source-derived case information.
- Citation
- [2011] KEHC 2417 (KLR)
- Parties
- Plaintiff: Nahashon Macharia; Defendant: Charles Shikanga
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 405 of 2010
- Procedural Posture
- Formal Proof / Judgment After Interlocutory Judgment and Formal Proof
- Outcome
- Judgment for the plaintiff. Specific performance granted.
- Legal Topics
- Specific Performance, Sale of Land, Breach of Contract
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nahashon Macharia
Plaintiff
Charles Shikanga
Defendant
Procedural Posture
Formal Proof / Judgment After Interlocutory Judgment and Formal Proof
Legal Issues
- 1 Whether the plaintiff is entitled to specific performance of the sale agreement for plot No. CS-55 in Umoja 1/Umoja Innercore.
- 2 Whether the plaintiff has fulfilled his contractual obligations under the sale agreement.
- 3 Whether the defendant breached the sale agreement by failing to transfer the property and pay outstanding rates.
Ratio Decidendi
The court found that the plaintiff had performed his contractual obligations under the sale agreement, including payment of the purchase price (with the balance deposited and ready for transfer), payment of outstanding rates, and additional facilitation payments. The defendant failed to honour his part by not transferring the property or paying the rates. Since the plaintiff was ready and willing to complete the transaction, and the defendant was in breach, the court held that the plaintiff was entitled to an order of specific performance. The court ordered the defendant to transfer the property upon deposit of the balance in court, with alternative execution by the City Council and...
Court Disposition
Judgment for the plaintiff. Specific performance granted.
Orders
- An order of specific performance is issued against the defendant to transfer plot No. CS-55 in Umoja 1/Umoja Innercore to the plaintiff upon deposit of KShs. 690,000 into court.
- If the transfer is not effected in 21 days following the deposit, the City Council and the Deputy Registrar of the court shall sign all necessary papers to effect the transfer.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
ELC NO. 405 OF 2010
NAHASHON MACHARIA......................................................................................................PLAINTIFF
V E R S U S
CHARLES SHIKANGA .....................................................................................................DEFENDANT
J U D G M E N T
Interlocutory judgment was entered against the Defendant on 23rd September 2010 when he failed to enter appearance or file defence. The matter proceeded by way of formal proof and therefore the evidence of the Plaintiff was not controverted.
The Defendant was allocated (Exhibit 3) plot cornership No. Cs – 55 in Umoja I/Umoja Inner core, measuring about 0. 035 Hectares by the City Council of Nairobi which on 18th July 2008 he sold to the Plaintiff for KShs. 1,300,000/= vide a Sale Agreement (Exihibits 1, 5 and 6) which they signed and were witnessed. The Plaintiff has so far paid KShs. 610,000/= and has the balance of KShs. 690,000/= deposited with his advocate ready to be passed on to the Defendant when the plot is registered in his name. The transaction was to be completed 90 days from 30th November 2009 but the Defendants did honour his part of the bargain.
It was Defendant’s responsibility to pay outstanding rates to the Council. He did not and so the Plaintiff paid. The Plaintiff paid a further KShs. 50,000/= to the Defendant so that he could go and process the lease document.
The suit was filed for specific performance of the Agreement plus costs and interest. I find the Plaintiff has performed his contractual obligation and is ready and willing to pay the balance of the purchase price but that the Defendant has not fulfilled his part. An order of specific performance hereby issued against the Defendant to transfer all that parcel of land known as No. CS-55 in Umoja 1/Umoja Innercore upon the deposit of the balance of KShs. 690,000/= into court by the Plaintiff for onward transmission to him upon the transfer. If the transfer is not effected in 21 days following the deposit the City Council and the Deputy Registrar of this court will sign all the necessary papers to effect the order. Costs shall be paid by the Defendant.
DATED, PRONOUNCED AND DELIVERED AT NAIROBITHIS 24TH DAY OF MARCH 2011
A.O. MUCHELULE
J U D G E