Nancy Wanjiru Wangai & Joseph Kamau Ndegwa v Charles Gitahi Githinji & Moffat Magondu Githinji

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT NAIROBI** **ELC NO 1323 OF 2016** **NANCY WANJIRU WANGAI - 1ST PLAINTIFF** **JOSEPH KAMAU NDEGWA - 2ND PLAINTIFF** **VS** **CHARLES GITAHI GITHINJI - 1ST DEFENDANT** **MOFFAT MAGONDU GITHINJI - 2ND DEFENDANT** **JUDGEMENT** **The introduction and pleadings** 1. By their amended plaint, the Plaintiffs sued the Defendants for specific performance of the agreement dated 3/12/2012; alternatively, they sought a refund of the purchase price, with interest at 18% per annum from the date of the agreement. 2. The plaintiff’s case is that they entered into a sale agreement for the sale and purchase of LR No 209/1408/106 on 3/10/2012 for a consideration of Kshs 6 Million. The plaintiff paid the consideration in cash and in kind by rendering services to the defendants relating to the investigation and tracing of their deceased father’s family properties. The plaintiff also alleged that other services were paid for, including eviction, renovation, security, and legal fees. 3. The Defendants filed a statement of defence and counterclaim in denial of the plaintiff's claim, putting them to strict proof. 4. The Defendants admit that, by a power of attorney dated 24/9/2012, they authorised the 2nd Plaintiff and one Joseph Mwaniki Giteri to trace and locate their deceased father's assets, which were scattered throughout Nairobi and its environs. 5. They deny ever meeting the 1st Plaintiff or receiving any monies from the Plaintiffs. They contend that the 2nd Plaintiff's mandate was to collect rent from the tenant of the suit property and remit it to the Defendants. They further contend that the tenant was evicted in June 2013 and that the property was placed under the management of the deceased lawyer, Harith Sheth, Advocate of Harith Sheth & Co Advocates. 6. That in 2016, a tenant named Alice Nduni defaulted on rent and sued the Defendants and the 1st Plaintiff in Rent Restriction Tribunal case No 1141 of 2016, but later vacated the property on 11/10/2016 when the Defendants took over the property. 7. The Defendants contend that the only monies they received were rent remittances, not sale consideration. They deny executing undated transfers or handing over completion documents to the Plaintiffs. There is therefore no evidence of a sale transaction, particularly in the absence of the third administrator of the estate. It is true that they did not have the original title in their custody, which they later obtained from the Lands Office after advertising its loss in the Kenya Gazette. 8. In their counterclaim, they aver that following their father's death, they engaged the services of the 2nd Plaintiff to trace and locate the family assets. The 2nd Plaintiff traced the suit land and was paid for his services. They also entrusted the 2nd Plaintiff with the management of another property, namely Nairobi/Block 79/36, Buruburu, Nairobi. They further aver that the 2nd Plaintiff was not diligent in collecting and remitting rent on time, hence the need arose to evict the tenant on 30/6/2013. They also aver that, in the course of their dealings, they furnished the 2nd Plaintiff with their documents. They reiterate that they did not sign the sale agreements for the suit land as well as for Nairobi/Block 79/36, Buruburu, Nairobi. 9. In addition, the Defendants contended that the sum of Kshs 930,000/- paid to them was for rent remittance for the period including January 2015, not for sale consideration as alleged by the Plaintiffs. 10. The particulars of illegality have been pleaded under para 29 of the counterclaim. 11. The defendants seek an order for a permanent injunction restraining the Plaintiffs from interfering with, trespassing on, and/or claiming ownership of the suit land, and from incurring the costs of the suit and the counterclaim. **The evidence adduced at the hearing** 1. PW1 – Joseph Ndegwa Kamau led evidence and relied on his witness statement dated 26/10/2016 as his evidence in chief, and produced documents in support of his claim. 2. He stated that he and Joseph Mwaniki Giteri [Giteri] were appointed by the Defendants under a power of attorney dated 24/9/2012. He traced the assets and paid bills, eviction costs, and lawyers' and auctioneers' fees while managing the Defendants' properties. He also paid the Defendants the purchase price on several occasions, which explains why they executed the undated transfer and provided their personal documents in readiness for the transfer of the suit land in favour of the plaintiffs. The 1st plaintiff also took possession of the suit land. 3. In cross-examination, he stated that he was introduced to the defendants by Giteri, their neighbour. He stated that he entered into a sale agreement in respect of the suit land, with part of the payments to be made in services rendered in favour of the defendants and the other part in cash. He stated that he did not receive any rent payments. He stated that he evicted the rent-defaulting tenant, repaired the dilapidated house, and took possession. He stated that he is not claiming plot No. Nairobi/Block 79/36, [the Buruburu Property], Nairobi, because it is subject to litigation. He added that one Mwaniki Gatheru, a family member, collected monies on behalf of the defendants. He stated that, in total, he paid Kshs 3 Million in cash and the remainder through services rendered on behalf of the defendants. 4. Nancy Wanjiru Wangui, the wife of the 2nd Plaintiff, testified as PW2 and relied on her witness statement dated 26/1/16. She reiterated the evidence led by PW1 and stated that they entered into a sale agreement with the defendants for the sale of the suit land for Kshs 6 Million. They paid Kshs 3 Million in cash and the balance by services rendered on behalf of the defendants. However, she stated that, save for Kshs 150,000/-, no monies were paid on the date of execution of the agreement. 5. Asked about the case at the Rent Restriction Tribunal, she stated that she was unaware of it, that the transaction was handled entirely by her husband, and that she may not know many of the details. She leased the house to Alice Nduni, who lived there for 2.5 years. 6. Josephine Ndulu Muli – PW3 – testified that she was employed by Lucky Base Shelters, owned by the 2nd Plaintiff, from 2003 to 2018. She paid the Defendants various sums, on the 2nd Plaintiff's instructions, by cheque and in cash, as shown in the exhibits at pages 59-104 of the Plaintiffs' trial bundle. 7. PW4 – Joseph Mwaniki Giteru, who identified himself as a neighbour of the Defendants, introduced the 2nd Plaintiff to the Defendants. He testified to various payments the 2nd Plaintiff made directly to the Defendants and their relatives. He further stated that he was one of the holders of the power of attorney, alongside the 2nd Plaintiff. Their role was to trace and locate family property on behalf of the Defendants following their father's demise. Under the agreement between the 2nd Plaintiff and the Defendants, the 2nd Plaintiff was responsible for financing the process. It was agreed that if the suit land could be located, the 2nd Plaintiff would purchase it for Kshs 6 Million. From the proceeds, Kshs 3 Million was to be paid to the Defendants, with the remainder to be used for expenses related to tracing the properties, including payments to investigators, surveyors, and legal professionals involved in the exercise. 8. Regarding the suit land, he stated that he helped the 2nd Plaintiff evict the tenant, Pamela, who had defaulted on rent payments; that he renovated the house, hired security, and took possession of the land. 9. Regarding the sale agreement, he stated that he was present at its execution at the office of Omollo Ochieng Advocates. He also stated that he is aware that the defendants executed the transfer forms in respect of the suit land. 10. The witness stated that the properties he was investigating fall outside the scope of the confirmation of grant. It is also noted that the defendants did not compensate him; instead, the 2nd Plaintiff paid him Kshs 500,000/- for his services. Furthermore, the payments made to the defendants were not for the rent of the suit land. Additionally, the defendants have not remunerated the 2nd Plaintiff for the services rendered. 11. PW5 – Tom Kayere stated that he is a private investigator based in Nairobi and operates under the name Wandega Enterprises. The 2nd Plaintiff instructed him to trace and locate the defendants' assets. He investigated Kitengela, Nairobi, Nakuru, Nanyuki, and other localities, recovering numerous properties, although he could not recall all of them due to the passage of time. He issued his fee note to the 2nd Plaintiff, who had instructed him on behalf of the defendant's family. 12. DW1 – Charles Gitahi Githinji, who testified as DW1, stated that he engaged the Plaintiff to trace and locate their family properties after being introduced to the Plaintiff by Giteri, a neighbour in Nyeri. He provided the Plaintiff with a power of attorney dated 24/9/2012. During this process, the 2nd Plaintiff obtained the Plaintiff’s documents, namely identity cards and passport-sized photographs. The 2nd Plaintiff assumed responsibility for managing the suit in Buruburu from Harith Sheth and collected rent on the Plaintiff’s behalf. The 1st Plaintiff became a tenant of the suit property but failed to remit rent payments. 13. He reiterated that no sale agreement was entered into with the Plaintiffs. Ochieng Omollo, Advocate, served as their legal representative in HCCC No. 406 of 2008 and could not have drafted such an agreement. Accordingly, the cheque issued in the Defendants' name was for the remittance of rent, not for payment of the purchase price. The Plaintiffs are attempting to acquire the property by fraud and illegality. 14. He stated that he was unaware that the 2nd Plaintiff had engaged an investigator. They have yet to pay the 2nd Plaintiff for the work he carried out. He further stated that the investigator has not submitted any report to the defendants and, according to him, never traced any properties. Apart from the power of attorney, they never signed the sale agreement. He claimed the signatures were forgeries. He acknowledged only the payments made to him and his brother. He was unaware why other third parties were being paid without his consent and authority. He acknowledged the cheques in respect of rental income. 15. In addition, he stated that the power of attorney did not authorise the 2nd plaintiff to acquire the suit land. In any event, the suit land was not among the properties to be traced, as it was already listed in the confirmation of grant. The power of attorney did not require tracing the properties. 16. DW2 Moffat Magondu testified that he is the step-brother of the 1st Defendant. He did not sign the purported sale agreement for the suit land in favour of the Plaintiffs. He also confirmed that he had signed the power of attorney. **The written submissions** 1. The Plaintiff submitted that the Plaintiffs' case rests on a valid and enforceable sale agreement dated 3/10/2012, under which the Defendants agreed to sell the suit property to the 1st Plaintiff for Kshs 6 Million. Upon execution of the agreement, the Defendants acknowledged receipt of the full purchase price and provided executed but undated transfer forms, passport-sized photos, and copies of their identity cards. The Defendants now seek to renounce the agreement on the grounds of fraud and forgery. 2. It was submitted that the sale agreement dated 3/10/2012 satisfies all the essential ingredients of a valid contract, namely acceptance, consideration and intention to create legal relations. The agreement was executed in the presence of an advocate, and the purchase price of Kshs 6 Million was acknowledged at the time of execution. According to the confirmation of grant, the defendants had the capacity to dispose of the suit land. 3. It was submitted that the 2nd Plaintiff, at his own expense, conducted extensive investigations to trace the properties, engaging private investigators who produced detailed reports. He paid legal fees for eviction, auctioneer's fees, renovation fees, and security expenses for the suit property. In addition, he paid various sums to the defendants and their relatives, as evidenced by the cheques exhibited at the hearing. 4. With respect to the burden of proof, the Plaintiffs submitted that the burden lies on the defendants to prove forgery, and that they have failed to discharge it. Mere allegations of forgery are insufficient to discharge the burden of proof. 5. The defendants gave the Plaintiff a power of attorney to trace the properties, executed the sale agreement, acknowledged payment, and handed over possession of the property to the Plaintiff. They cannot be allowed to renege on this position and to allege forgery. 6. It was submitted that the plaintiffs are entitled to specific performance because they have demonstrated that there is a valid and enforceable contract; that they had authority to sell the suit land; that the defendants have breached the agreement by refusing to transfer the title to the plaintiffs; and that damages are an inadequate remedy, as land is unique and irreplaceable. 7. In addition, the plaintiffs submitted that the defendants are estopped from reneging on their promise to sell the land to the plaintiffs. The defendants also acknowledged receipt of the monies, handed over possession, and provided transfer documents to facilitate the transfer of the suit land to the plaintiffs. 8. That the plaintiff has performed their part of the agreement by taking possession of the house, renovating it and renting it to another tenant. It was submitted that the defendants are precluded by the doctrine of laches from denying the transaction. In overview, the defendants' counterclaim is not meritorious and is a candidate for dismissal. 9. The defendants, on the other hand, submitted that the suit land was listed among the properties in the confirmation of grant, and that any suggestion it was subject to tracing was a misnomer. In any event, Giteri admitted that they obtained title documents from the defendants' house in Nyeri, meaning that the defendants held the titles and, therefore, the issue of tracing was not applicable to the suit land. 10. The Plaintiffs have not claimed the amount allegedly paid upon execution of the sale agreement on 3/10/2012. It was submitted that the 1st Plaintiff was an agent of the Defendants for the collection of rents. 11. Regarding the cheques, the defendants submitted that there are no statements supporting the claim that the payments were made to and received by the defendants. The defendants did not authorise the engagement of the investigator or the payments to him; any payments to him and other third parties were therefore unauthorised. Some of the properties are already included in the confirmation of grant, and the family were aware of them; hence, no tracing was required. Further, if the purchase price was indeed paid and acknowledged at the execution of the sale agreement, why was the plaintiff alleging that the defendants were paid again? It was submitted that the monies received from the 2nd plaintiff were for rental income, not the purchase price. 12. In addition, it was submitted that the plaintiffs have not placed the undated transfer, passport-sized photos and the identity cards before the court, and that it is best to assume they do not exist. The defendants submit that they executed none of the said documents. **Analysis and determination** 1. Having considered the pleadings the evidence adduced and the written submissions of the parties, the issues that commend themselves for determination are; 1. Whether the Defendants have proven illegality in the manner the Plaintiffs acquired the suit land. Are the Defendants entitled to a permanent injunction restraining the Plaintiffs from interfering and/or claiming ownership of the suit land? 2. Whether the Plaintiffs are entitled to specific performance 3. What orders should the court issue 4. Costs of the suit and the counterclaim 2. To begin with, I shall set out the background to the suit. It is not in dispute that following the death of Lawrence Githinji Magondu on 4/2/2000, the family successfully petitioned for succession under HCCC Succ Cause No 3120B. The court issued a confirmation of grant on 19/7/2004, which was later rectified on 11/2/2009. The Defendants were appointed as administrators of the estate. Upon confirmation of the grant of administration, they became beneficiaries of the suit land and held it jointly in equal shares. 3. Evidence was led that the late Magondu was a successful businessman and a realtor in the City, as evidenced by the size of the estate disclosed in the properties listed in the confirmation of grant. Other than the properties listed in the confirmation of grant, the Defendants stated that there were other properties that needed to be located and traced so they could be distributed to the beneficiaries. 4. Mr Giteri, a neighbour of the Magondus at Nyeri, then introduced the Defendants to the 2nd Plaintiff, who is in the real estate business and trades under the name of Lucky Base Shelters. On meeting, the Defendants freely and voluntarily granted the 2nd Plaintiff and Mr Giteri a general power of attorney dated 3/10/2012. The Defendants have admitted executing the said power of attorney, which was registered on 25/9/2012. 5. The Plaintiffs' case is that they entered into a sale agreement with the Defendants for the sale and purchase of the suit land for the sum of Kshs 6 Million. That the purchase price was to be paid in two modes; Kshs 3 Million in cash and the balance by payment for services relating to the tracing and locating of the properties belonging to the estate of the Defendant's deceased father. They have therefore sought orders for specific performance. 6. The Defendants' case, on the other hand, was that they did not sign any sale agreement nor receive any monies in respect of the sale of the suit land. They aver that the monies received were rent paid by the 2nd Plaintiff in accordance with his role under the power of Attorney. It is their case that the Plaintiffs are illegally claiming an interest in the land by falsifying documents, thereby frustrating their enjoyment of their inheritance. Accordingly, the court ought to grant an injunction restraining them from interfering with the suit land. **Whether the Defendants have proven illegality in the manner the Plaintiffs acquired the suit land?** 1. A Power of Attorney (PoA) is a legal instrument by which an individual (the donor or principal) authorises another party (the donee, attorney, or agent) to act on their behalf in legal, financial, property, or personal matters. This delegation may be temporary or permanent and can range from broad to narrow. The governance of PoA is primarily under the Registration of Documents Act (Cap 285) and the relevant provisions of the Law of Contract Act (Cap 23), with additional requirements set out in the Land Registration Act for land transactions. A general PoA confers extensive authority to manage all or most of the donor’s affairs and is typically used when an individual is unavailable or incapacitated. 2. A registered Power of Attorney (PoA) fulfils numerous functions, including establishing the PoA as a publicly enforceable instrument for reliance by third parties such as land registries and financial institutions. Third parties are deemed to have constructive notice of the PoA’s existence and authority. It also helps prevent fraud by providing a verifiable record of the agent’s authority. The PoA may be used solely to register instruments in land records, such as transfers carried out by an agent. Moreover, if a revocation is registered, the Registrar is precluded from executing any instruments executed under the now-revoked PoA. 3. As stated earlier, the existence of the general power of attorney [PoA] is not in dispute. Under the said PoA, the Defendants [donors] granted their general power to the 2nd Plaintiff and Mr Giteri [hereinafter called the donees], inter alia, to demand, sue for, and recover monies owed to the Defendants; to settle and adjust accounts; to compound the same in whole or in part; to prosecute and defend any action in court or arbitration; to let or hire out houses; to receive rent and issue receipts therefor; and, in default of payment or delivery, to use and take all lawful ways and means for recovery by attachment or ejectment, and to do all that was necessary for the gathering operations and management of the Defendants' affairs 4. In other words, the Defendants conferred very wide powers under the P/A on the donees. The Defendants’ allegation that they were not consulted and/or that their approval was not sought and obtained in hiring the investigator to trace the properties and other professionals involved in the exercise is untenable, since they had already conferred power on the donee to trace the properties using means at their disposal. One of those means, as averred by the donees, was to hire an investigator, a surveyor, lawyers, auctioneers and security services. 5. Evidence led by the 2nd Plaintiff and Mr Giteri shows that service providers, including investigators, surveyors, lawyers, auctioneers, and security services, were engaged to carry out various tasks. Correspondence on record attests that Mr Tom Kayere, the lead investigator, carried out tracing and prepared various letters and reports to the 2nd Plaintiff on the progress of tracing several properties. These are found on pages 43-55 of the Plaintiffs' trial bundle. The reports detail the property particulars, registered owners, physical locations, and registration status. Alongside the reports are his fee requests for the services. From my perusal, these properties are not listed in the confirmation of grant. The Defendants' assertion that no properties were traced and located is, at best, incorrect. 6. Save for the PoA, the parties have not placed before the court the modalities for financing the tracing and locating of the properties. That said, the donees led evidence that they agreed that the 2nd Plaintiff would fund the exercise, as the donors had no money at the time. The donors have unequivocally admitted that they did not pay the 2nd Plaintiff for the services of tracing the properties. 7. Josephine Nduku Muli led unchallenged evidence that she was employed as an accountant by the firm of Lucky Bae Shelters, operated by the 2nd Plaintiff, and that she issued cheques to the Defendants and other service providers instructed by the 2nd Plaintiff on behalf of the Defendants. At page 105 of the Plaintiffs’ trial bundle, the investigator Tom Kayere acknowledged in writing receipt of Kshs 1,865,280/- from the 2nd Plaintiff as fees for his services. This witness stated as much at the hearing. Some of the payments to this witness are captured in the report on pages 56 – 58, and the cheques run from pages 59 – 104 of the trial bundle. Notably, the Defendants have admitted receipt of the payments as reported. If they accept they received payments from the 2nd Plaintiff, they cannot turn around and deny that their service providers were appointed under their donated PoA. As to whether the money was for rent or the purchase price, the court will address that shortly. Furthermore, they have admitted that they did not pay for the tracing services, leaving only the probable conclusion that the 2nd Plaintiff paid for them. In my view, the Defendants cannot be allowed to probate and reprobate. In any event, the Defendants acknowledged that the 2nd Plaintiff had successfully traced the suit land. 8. I shall now analyse the sale agreement. The defendants have disputed this document on several grounds, including allegations that their signatures are forged; that the purchase price could not have been 6 million, as it was too low; that they never met the 1st plaintiff and therefore could not have entered into a sale agreement with her; that their advocate, Ochieng Omollo, could not have drafted the sale agreement; and that the plaintiffs acquired the property through fraud. 9. Section 107 of the Evidence Act speaks to the burden of proof as follows;- | | | | --- | --- | | (1) | Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. | | (2) | When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. | 1. The Plaintiffs, on the other hand, assert that the Defendants freely executed the sale agreement; provided the Plaintiffs with the completion documents, namely their identity cards and passport-sized photographs; and acknowledged receipt of the purchase price. 2. Is there a valid contract between the parties? The law sets out the requirements for a contract's validity. Section 3(3) of the Law of Contract Act, read together with Section 38 of the Land Act, 2012, provides that no suit shall be brought upon a contract for the disposition of an interest in land unless the contract upon which the suit is founded is in writing, signed by all the parties, and the signature of each party is attested by a witness who is present when the contract is signed. 3. A review of the sale agreement indicates that it is dated 3/10/2012 and was entered into between the defendants and the 1st plaintiff in respect of the sale of the subject land, pursuant to the confirmed grant of administration, under which the defendants [vendors] are listed as beneficiaries. The purchase price was Kshs 6 Million, a sum acknowledged by the defendants at the time of execution. The completion date was set for 90 days from 3/10/2012, that is, 31/1/2013. The potential events and consequences of default were anticipated and duly provided for under paragraph 7 of the sale agreement. The agreement has been duly signed by the parties and attested to by a lawyer, namely Mr. Eric Ochieng, Advocate. The document was prepared by the law firm Ochieng Omolo & Co Advocates. 4. The essential components of a contract as was observed by Harris JA in Garvey v Richards {2011} JMCA **16** ought to ordinarily reflect the following principles: “It is a well-settled rule that an agreement is not binding as a contract unless it shows an intention by the parties to create a legal relationship. Generally, three basic rules underpin the formation of a contract, namely, an agreement, an intention to enter into contractual relationships and consideration. For a contract to be valid and enforceable an essential terms governing the relationship of the parties must be incorporated therein. The subject matter must be certain. There must be positive evidence that a contractual obligation, born out of an oral or written agreement, is in existence.” 1. Further in the case of RTS Flexible Systems Ltd v Moikerei Alois Muller GMBH & Co K. G. {2010} UKSC 14the court pronounced itself as follows: “The general principles are not in doubt, whether there is a binding contract between the parties and, if so, upon what terms depends upon what they have agreed. It depends not upon them, by words or conduct, and whether that leads objectively to a conclusion that they intended to create legal relations and had agreed upon all the terms which they regarded or the law requires as essential for the formation of legally binding relations. Even if certain terms of economic or other significance to the parties have not been finalized, an objective appraisal of their words and conduct may lead to the conclusion that they did not intend agreement of such terms to be a precaution to a concluded and legally binding agreement.” 1. In the case ofNelson Kivuvani....Vs....Yuda Komora & Another, Nairobi HCCC No.956 of 1991, where the Court held that:- **“**the agreement for sale of land which contains the names of the parties, the number of the property, the purchase price and the conditions attached thereto, the obligations, express or implied, of each of the parties and signed and witnessed by two witnesses who signed against their names amount to a valid contract”. 1. The sale agreement has been assailed primarily on the ground that it is a forgery. The old adage that he who asserts must prove still holds sway in this dispute. PW1 and PW3 testified that they were present when the defendants signed the agreement for sale at the offices of Ochieng Omolo & Company Advocates. The burden of proving forgery lies with the defendants. They could have discharged this burden by producing expert evidence from a handwriting expert to disprove the authenticity of their signatures. On a casual inspection, the defendants' signatures on the PoA are, by and large, similar to those on the sale agreement. Absent any expert evidence, the court finds the allegation of forgery unsubstantiated and rejects it. 2. It is a cardinal rule that courts do not rewrite contracts but interpret the parties' intention. Having determined that the defendants executed the sale agreement, the court will then examine the parties' obligations under the agreement. With respect to the consideration of 6 million, the Plaintiffs aver that the defendants acknowledged it upon execution, meaning that the defendants acknowledged receipt of the full purchase price on 3/12/2012. Although the documents state this at para 3, the parties' conduct indicates otherwise. PW2 gave emphatic evidence and stated that, except for the sum of Kshs 150,000/-, no other monies were paid at the execution of the sale agreement. This position is more probable because if the purchase price had been paid, what were the payments remitted to the defendants much later for? 3. The sale agreement provided for completion within 90 days, that is, by 31/1/2013. The defendants had the option to cancel the sale agreement by giving the purchaser 21 days' notice to complete, and in default the vendor was at liberty to sell the land to third parties, with the purchaser forfeiting the entire deposit. According to the record, the defendants did not cancel the sale agreement but continued to receive payments from the 2nd Plaintiff, a clear indication that the parties varied the contract by their conduct. 4. The defendants have argued that the monies received were rent remittances. The Plaintiffs take a contrary view, stating that the monies were payment of the purchase price for the suit land. It is on record that after the sale agreement, the 2nd Plaintiff, in concurrence with the defendants, evicted the tenant who had been living on the suit land for decades without paying rent. Subsequently, through the firm of Igeria & Ngugi o Advocates, the outstanding rent of Kshs 7.2 Million was demanded. It remains unclear whether this amount was recovered and/or paid to the 2nd Plaintiff. The defendants have argued that they held possession of the suit land; however, the Rent Restriction Tribunal ordered the tenant, Alice Nduni, not to vacate the suit land. The evidence strongly supports the Plaintiffs' assertion that they took possession of the suit land immediately after the sale and rented it to a tenant, namely Alice Nduni. The court therefore finds that the contention that the defendants were in possession is unfounded. 5. The contention that the money the defendants received from the 2nd Plaintiff is not supported by any evidence, as the Plaintiffs took possession of the house and rented it. In any event, the rent for the house was around Kshs 45,000/-, an amount too low compared to the sums received by the defendants. The Court finds, on the balance of probabilities, that the amounts could not have been rent but were the purchase price for the suit land. The Court therefore discounts the defendants' contention. **Whether the Plaintiffs are entitled to specific performance** 1. Whether the orders for specific performance are merited. Granting specific performance is discretionary, and the Court should, in deciding whether to grant the orders, consider the merits of the case on a case-by-case basis and whether an adequate alternative exists. In Reliable Electrical Engineers Ltd. v. Mantrac Kenya Limited (2006) eKLR, the Court stated that: “Specific performance like any other equitable remedy is discretionary and the Court will only grant it on well laid principles” “The Jurisdiction of specific performance is based on the existence of a valid enforceable contract. It will not be ordered if the contract suffers from some defect, such as failure to comply with the formal requirements or mistake or illegality, which makes the contract invalid or enforceable. Even when a contract is valid and enforceable, specific performance will however not be ordered where there is an adequate alternative remedy. In this respect damages are considered to be an adequate alternative remedy where the claimant can readily get the equivalent of what he contracted for from another source. Even when damages are adequate remedy specific performance may still be refused on the ground of undue influenced or where it will cause severe hardship to the defendant.” 1. In the case of Sisto Wambugu v Kamau Njuguna (1983) eKLR**,**where the Honourable court observed as hereunder; “In my judgment the respondent cannot come to the court and obtain an order of the transfer of the land, as he sought in his counterclaim, which is in effect an order of specific performance of the agreement, unless he had performed his part of the bargain or can show that he was at all times ready and willing to do so” 1. In this case, the court finds that the Plaintiffs have fulfilled their obligations under the agreement by paying the full purchase price and taking possession, and that the defendants have breached the agreement by withholding the completion documents, namely the original title to the suit land. The court further notes that the defendants have the capacity to sell the land. 2. In the end, I find that the defendant’s counterclaim is unmeritorious. It is dismissed. 3. The plaintiff's case succeeds, and the court orders specific performance of the agreement. 4. The defendants be and are hereby ordered to execute the transfer and provide all the completion documents within 45 days; in default, the Deputy Registrar of this Court be and is hereby ordered to execute all the documents necessary for the effectuation of the orders of this Court. 5. The costs be in favour of the Plaintiffs. 6. It is so ordered **DELIVERED, DATED AND SIGNED AT NAIROBI THIS 7th DAY OF SEPTEMBER 2026 VIA MICROSOFT TEAMS.** **J. G. KEMEI** **JUDGE** **Delivered virtually in the presence of:** 1. Mr. Mugu for the Plaintiffs 2. Mr Murage for the Defendants 3. CA- Mr Amos