[2019] KEELC 1564 (KLR)
The court found that the Plaintiff had proved, through documentary evidence, that he paid a total of Kshs.3,640,000 to the Defendants and their agents for the purchase of the suit premises. The Defendants failed to complete the construction and transfer of the property as agreed, and did not contest the Plaintiff's...
Source-derived case information.
- Citation
- [2019] KEELC 1564 (KLR)
- Parties
- Plaintiff: Peter Nyabuti; Defendant: Ringa Property Limited; Defendant: Paul Ogada
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 1186 of 2016
- Procedural Posture
- Civil Suit / Judgment
- Outcome
- judgment for the plaintiff
- Legal Topics
- Sale of Land, Breach of Contract, Specific Performance, Damages for Breach, Stakeholder Funds
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Nyabuti
Plaintiff
Ringa Property Limited
Defendant
Paul Ogada
Defendant
Procedural Posture
Civil Suit / Judgment
Legal Issues
- 1 Whether the Defendants received and failed to refund part payments made by the Plaintiff for the purchase of the suit premises.
- 2 Whether the Plaintiff is entitled to a refund of the sums paid and/or general damages for breach of contract.
- 3 Whether general damages are awardable in addition to quantified damages for breach of contract.
Ratio Decidendi
The court found that the Plaintiff had proved, through documentary evidence, that he paid a total of Kshs.3,640,000 to the Defendants and their agents for the purchase of the suit premises. The Defendants failed to complete the construction and transfer of the property as agreed, and did not contest the Plaintiff's claim. The court held that the Plaintiff was entitled to a refund of the proven sums paid. The court further held that general damages are not awardable in addition to quantified damages for breach of contract. Judgment was therefore entered in favour of the Plaintiff for Kshs.3,640,000 against the Defendants jointly and severally, with interest at court rates from the...
Court Disposition
judgment for the plaintiff
Orders
- Judgment entered in favour of the Plaintiff for Kshs.3,640,000 against the Defendants jointly and severally.
- Interest on the decretal sum at court rates from the respective dates of payment until payment in full.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT & LAND COURT
AT MILIMANI
ELC NO. 1186 OF 2016
PETER NYABUTI................................................PLAINTIFF/APPLICANT
VERSUS
RINGA PROPERTY LIMITED.......................................1ST DEFENDANT
PAUL OGADA..................................................................2ND DEFENDANT
JUDGMENT
1. By an amended Plaint filed on 9th June 2017, the Plaintiff claimed the following reliefs against the Defendants:-
(a) The sum of Kshs.2,000,000/= from the 1st Defendant being the part payment of the total sale price of the suit premise.
(b) The sum of Kshs.1,200,000/= from the 2nd Defendant being part payment of the total sale price of the suit premise.
(c) The sum of US Dollars 5,000 from the 2nd Defendant being the part payment of the total sale price of the suit premise.
(d) General damages for breach of contract.
(e) Interest on (a), (b) and (c) above at the prevailing rates of interest until payment is made in full.
(f) Costs of this suit together with the interest thereon at Court rates.
(g) Any such other or further relief as this Honourable Court may deem appropriate.
2. The first Defendant is Limited Liability Company whereas the second Defendant is a Director of the first Defendant. On 19th August 2013, the first Defendant offered to sell apartment number 2D (suit premises) comprised in LR No 1870/IV/100 Westlands Nairobi (suit property) which was subject to contract which was still under construction. The suit premises was offered for sale at Kshs. 18,000,000/=. The Plaintiff was expected to pay a sum of Kshs.5,000,000/= to the first Defendant upon execution of the letter of offer which amount was to be held by the first Defendant as stakeholder pending completion of the sale.
3. The Plaintiff was further expected to pay Kshs.1,068,610/= to the first Defendant’s Advocates M/s Wamae & Allen Advocates as transactional costs. On diverse dates the Plaintiff paid a total of Kshs.19,500,000/= to the first and second Defendants as well as their lawyers and consolidated Bank Limited. The apartments which were being put up by the first Defendant were never completed as per the agreement. Consolidated Bank Limited who had offered a facility to the first Defendant sold the suit property after it reached an agreement with the Plaintiff for the refund of what the Plaintiff had paid to the bank. The Plaintiff who had sued Consolidated Bank Limited as a second Defendant in the original claim amended the Plaint and removed the bank following a consent entered between the Plaintiff and the bank.
4. The Defendants who were served by way of advertisement in the press neither entered appearance nor filed a defence. The Plaintiff’s suit therefore proceeded by way of formal proof. The Plaintiff adopted his witness statement which he had filed 28th September, 2016 and relied on documents which he filed on the same date.
5. I have gone through the evidence adduced by the Plaintiff. On 26th August 2013, the Plaintiff transferred Kshs.1,000,000/= to the account of the second Defendant at Kenya Commercial Bank. On 24th December 2013, the Plaintiff paid the second Defendant Kshs.200,000/=. On 6th January 2014, the Plaintiff transferred Kshs.2,000,000/= to the first Defendant’s Advocates. Again on 8th July 2014, the Plaintiff sent a sum of USD 5000 to the agent of the first Defendant. This amount was equivalent to Kshs.440,000/=.
6. The amount which the Plaintiff sent is supported by documents. This evidence has not been controverted. Though the Plaintiff is also asking for general damages for breach of contract, the law is clear that one cannot be awarded general damages in addition to quantified damages. The Plaintiff has proved that he paid out Kshs.3,640,000/= to the Defendants. I therefore enter judgment in favour of the Plaintiff in the sum of Kshs.3,640,000/= against the Defendants jointly and severally . The interest on the decretal sum shall be calculated at court rates from the respective date when payment was made until payment in full. The Plaintiff shall also have costs of the suit.
Dated, Signed and delivered at Nairobi on this 27th day of August, 2019.
E.O.OBAGA
JUDGE
In the presence of Mr Onganda for Plaintiff
Court Clerk : Hilda
E.O.OBAGA
JUDGE