[2021] KEELC 553 (KLR)
The court found that the defendant had taken possession of the suit property and constructed residential houses, thereby benefiting from the contract. The defendant paid Kshs.7,300,000/= out of the agreed Kshs.10,000,000/=, leaving a balance of Kshs.2,700,000/=. As the defendant had already taken possession and the...
Source-derived case information.
- Citation
- [2021] KEELC 553 (KLR)
- Parties
- Plaintiff: Peter Mbuthia Karoki; Defendant: John Nganga Kibe
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 125 of 2020
- Procedural Posture
- Civil Suit / Judgment
- Outcome
- Judgment for the plaintiff for Kshs.2,700,000 with interest and costs.
- Judges
- EO Obaga
- Legal Topics
- Specific Performance, Sale of Land, Breach of Contract, Remedies for Breach, Payment of Purchase Price
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Mbuthia Karoki
Plaintiff
John Nganga Kibe
Defendant
Procedural Posture
Civil Suit / Judgment
Legal Issues
- 1 Whether the defendant breached the sale agreement by failing to pay the balance of the purchase price.
- 2 Whether the plaintiff is entitled to specific performance or payment of the outstanding balance.
- 3 Whether the plaintiff is entitled to interest and costs.
Ratio Decidendi
The court found that the defendant had taken possession of the suit property and constructed residential houses, thereby benefiting from the contract. The defendant paid Kshs.7,300,000/= out of the agreed Kshs.10,000,000/=, leaving a balance of Kshs.2,700,000/=. As the defendant had already taken possession and the only outstanding obligation was payment of the balance, specific performance was not an appropriate remedy. The plaintiff was entitled to judgment for the outstanding balance, together with interest at court rates from 1st July 2019 until payment in full, as well as costs of the suit.
Court Disposition
Judgment for the plaintiff for Kshs.2,700,000 with interest and costs.
Orders
- The defendant shall pay the plaintiff Kshs.2,700,000 with interest at court rates from 1st July 2019 until payment in full.
- The plaintiff shall have the costs of the suit.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT & LAND COURT AT NAIROBI
MILIMANI LAW COURTS
ELC CASE NO. 125 OF 2020
PETER MBUTHIA KAROKI............................................................. PLAINTIFF
=VERSUS=
JOHN NGANGA KIBE.....................................................................DEFENDANT
JUDGEMENT
1. The Plaintiff filed this suit against the Defendant in which he sought the following reliefs:
a) An order for Specific performance of agreement dated 18th March 2019.
b) An order for Payment of the remaining balance.
c) interest on balance at commercial rate for the year 2019 when the money fall due until payment in full:
d) General damages
2. The Defendant was duly served with summons to enter appearance and file defence but he neither entered appearance nor filed defence . The hearing therefore proceeded by way of formal proof.
3. The Plaintiff testified that he entered into a sale agreement with the Defendant in respect of sale of LR No. Nairobi Block 126/498 (suit property). The agreed purchase price was Kshs.10,000,000/= . The defendant paid Kshs.1,500,000/= on execution of the agreement and later made a further payment of Kshs.5,800,000/= leaving a balance of kshs.2,700,000/=.
4. The Defendant took possession of the suit property and started constructing residential houses on it. The Plaintiff has been demanding payment of the balance of the purchase price but the Defendant has refused to pay.
5. I have considered the evidence adduced by the Plaintiff as well as his submissions. The Plaintiff produced a copy of certificate of lease in respect of LR No. Nairobi Block 126/498. He also produced a sale agreement dated 18th march 2019 between him and the Defendant. It is clear from the agreement that the Defendant was to pay Kshs.10,000,000/= within 90 days .
6. The Plaintiff has acknowledged receipt of kshs.7, 300,000/=. There is therefore a balance of Kshs.2, 700,000/=. The Defendant has already taken possession of the suit property and has constructed houses from which he is earning income. It is therefore clear that there can be no order for specific performance of the contract.
7. The only relief available to the Plaintiff is payment of the balance of purchase price. I therefore enter Judgement for the Plaintiff against the Defendant in the sum of Kshs.2,700,000/= together with interest at court rates with effect from 1st July 2019 until payment in full. The Plaintiff shall also have costs of this suit.
DATED, SIGNED AND DELIVERED AT ELDORET ON THIS 11TH DAY OF NOVEMBER 2021
E.O.OBAGA
JUDGE
In the Virtual absence of parties who were aware of date of delivery of judgement.
Court Assistant: Mercy
E.O. OBAGA
JUDGE