[2005] KEHC 635 (KLR)
The court found that the defendant was in breach of the written agreement for the purchase of the house by failing to pay the balance of the purchase price. The defendant had enjoyed possession of the property since 1998 without fulfilling his contractual obligations. The court held that the plaintiff was entitled...
Source-derived case information.
- Citation
- [2005] KEHC 635 (KLR)
- Parties
- Plaintiff: Peter Githinji Nahason; Defendant: Zablon Momanyi Nyanka
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 243 of 1999
- Procedural Posture
- Civil Case / Judgment
- Outcome
- Judgment for the plaintiff.
- Legal Topics
- Sale of Land, Breach of Contract, Forfeiture of Deposit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Githinji Nahason
Plaintiff
Zablon Momanyi Nyanka
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the defendant breached the agreement for the purchase of the house.
- 2 Whether the plaintiff is entitled to forfeiture of the deposit of KES 900,000.
- 3 Whether the defendant has any valid defence to the plaintiff's claim.
Ratio Decidendi
The court found that the defendant was in breach of the written agreement for the purchase of the house by failing to pay the balance of the purchase price. The defendant had enjoyed possession of the property since 1998 without fulfilling his contractual obligations. The court held that the plaintiff was entitled to the orders sought, including forfeiture of the deposit, as the defendant had received value through occupation and had no valid defence. The written agreement was binding, and the defendant's continued delay and non-payment justified the reliefs granted to the plaintiff.
Court Disposition
Judgment for the plaintiff.
Orders
- Judgment entered for the plaintiff as prayed.
- Defendant to forfeit the deposit of KES 900,000 to the plaintiff.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Civil Case 243 of 1999
PETER GITHINJI NAHASON …………………………………………..PLAINTIFF
VERSUS
ZABLON MOMANYI NYANKA ………………………………….….DEFENDANT
J U D G M E N T
This suit was filed in 1999. After service of the plaint, no action was taken by the defendant and consequently the Plaintiff obtained ex-parte judgment. The defendant fought to set aside exparte judgement which he succeeded.
On 11/2/2002 the court gave the defendant time to file defence. This was done. The statement admits non-payment of Shs.300,000/- and that he was unable to pay the money due to financial constraints. Also that later it was agreed to pay shs.100,000/- in addition on the ground of delay occasioned. He denies that there was agreement to forfeit deposit paid in the sum of 900,000/-. Reply to defence was filed and issues filed by plaintiff.
In my view the issues to be resolved are number 1, 4, 15 and 16.
When the suit came up for hearing, the plaintiff and his advocate appeared but neither defendant nor his advocate appeared. The plaintiff proceeded to hearing as a formal proof.
The plaintiff gave evidence and produced exhibits. The defendant took possession of the house and up to now (date of hearing) the defendant was in possession the plaintiff’s house.
This is a matter of agreement for purchase of house. It was reduced into writing. The defendant admits that he has not paid the balance of purchase price Shs.300,000/-.
He is in breach of agreement. He has enjoyed the possession of the plaintiffs property, since 1998 and this indicates his willingness to delay in completing this matter. Agreements are to be complied with precisely especially when they are reduced into writing. I have examined the plaintiffs evidence and I am satisfied that he is entitled to orders he has sought.
On the issue of Shs.900,000/- it is clear the Defendant has received value having occupied the property to date and the same should be forfeited to the plaintiff.
After considering the statement of defence, I find the defendant has not any defence to the plaintiff’s suit and I dismiss the defence as having no merit.
I enter judgement for Plaintiff and grant prayers as prayed with all costs and interest.
Delivered and dated at Mombasa this 20th Day of December 2005.
J. KHAMINWA
J U D G E