[2019] KEELC 3034 (KLR)
The court found that the Plaintiff had established its case on a balance of probabilities. The Defendant failed to pay the balance of the purchase price and accrued substantial rent arrears. Despite repeated notices and opportunities to comply, the Defendant neither paid the outstanding amounts nor vacated the...
Source-derived case information.
- Citation
- [2019] KEELC 3034 (KLR)
- Parties
- Plaintiff: National Housing Corporation; Defendant: David Kisala
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 552 of 2017
- Procedural Posture
- Civil Suit / Judgment
- Outcome
- Judgment for the Plaintiff. Orders for vacant possession, eviction if necessary, and costs to the Plaintiff.
- Legal Topics
- Eviction, Vacant Possession, Rescission of Contract, Arrears of Rent
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
National Housing Corporation
Plaintiff
David Kisala
Defendant
Procedural Posture
Civil Suit / Judgment
Legal Issues
- 1 Whether the Plaintiff is entitled to vacant possession of Flat No MF 20E at Madaraka Estate, Nairobi.
- 2 Whether the Defendant breached the terms of the sale agreement by failing to pay the balance of the purchase price and rent.
- 3 Whether the Plaintiff is entitled to an order of eviction against the Defendant.
Ratio Decidendi
The court found that the Plaintiff had established its case on a balance of probabilities. The Defendant failed to pay the balance of the purchase price and accrued substantial rent arrears. Despite repeated notices and opportunities to comply, the Defendant neither paid the outstanding amounts nor vacated the premises. The Plaintiff's evidence, including documentary proof of rescission and demands for vacant possession, was unchallenged. The court held that the Plaintiff was entitled to vacant possession and an order of eviction, as the Defendant had no legal right to remain in occupation after rescission of the sale offer and termination of tenancy.
Court Disposition
Judgment for the Plaintiff. Orders for vacant possession, eviction if necessary, and costs to the Plaintiff.
Orders
- The Plaintiff is entitled to vacant possession of Flat No MF 20E at Madaraka Estate, Nairobi.
- The Defendant and any other occupant to deliver vacant possession within 14 days, failing which eviction to issue.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
ENVIRONMENT AND LAND COURT AT MILIMANI
ELC CIVIL SUIT NO. 552 OF 2017
NATIONAL HOUSING CORPORATION.................................PLAINTIFF
VERSUS
DAVID KISALA.......................................................................DEFENDANT
JUDGMENT
1. The Plaintiff is the registered owner LR No. 25980 on which is erected flat No.MF20E (Suit Property). The Plaintiff sued the Defendant for vacant possession of the suit property and for an order of eviction. The Defendant who was duly served with the Originating Summons neither entered appearance nor filed any Replying Affidavit to the Originating Summons.
2. The Plaintiff contends that it advertised for sale the suit property identified as Flat No. MF 20E at Madaraka Estate in Nairobi. The Defendant offered to purchase the suit property by making a down payment. The Defendant however did not complete payment of the purchase price. The Plaintiff advertised rescission of the offer to sell the suit property through advertisement in the Standard Newspaper of 4th September, 2009.
3. Prior to the advertisement of the rescission of the offer, the Plaintiff had severally reminded the Defendant to meet his part of the agreement in vain. The Plaintiff subsequently served the Defendant with Notice of termination of tenancy and rescission of the offer on various dates. The Defendant was given notice to give vacant possession and avail receipts for purposes of refund of whatever he had paid. The Defendant never heeded this prompting the Plaintiff to file this suit.
4. I have gone through the documents annexed to the Originating Summons. The Plaintiff issued a Notice of rescission of the offer to the Defendant through notice appearing on the Standard Newspaper of 4th September, 2009. There are also correspondence written on 7th September, 2011, 13th June, 2012 and 21st March, 2017 all communicating the Plaintiff’s rescission of the offer and demanding for vacant possession. This evidence remains uncontroverted.
5. During the hearing, the Plaintiff’s Counsel submitted that the Defendant was in rent arrears of Kshs.1,253,229/= as at 14th February, 2019. The Defendant had also not cleared the balance of the purchase price amounting to Kshs.600,000/=. As at 14th February, 2019, the Plaintiff was demanding from the Defendant a total of Kshs.2,239,118. 20/=. It is therefore clear that the Defendant is not willing to clear the balance of the purchase price or pay rent if he cannot purchase the house. I therefore find that the Plaintiff has proved its case against the Defendant on a balance of probabilities. I enter judgment for the Plaintiff in the following terms:-
(i) The Plaintiff is entitled to vacant possession of Flat No MF 20E at Madaraka Estate, Nairobi.
(ii) The Defendant by himself, his servants, agents or any other occupant of Flat No MF 20E Madaraka Estate, Nairobi do deliver vacant possession of the said flat within 14 days failing which the Defendant to be forcefully evicted from the said premises.
(iii) The costs of this suit shall be paid by the Defendant.
Dated, Signed and delivered at Nairobi on this 9th day of May, 2019.
E.O.OBAGA
JUDGE
In the presence of Mr. Mbogo for Plaintiff.
Court Assistant Hilda