[2018] KEELC 1155 (KLR)
The court found that although the Agreement required the buyer to bear the cost of sub-division, the Defendant was obligated to facilitate the sub-division and obtain the Land Control Board's consent. The Defendant failed to take these steps and did not provide evidence of any effort to complete the transaction or...
Source-derived case information.
- Citation
- [2018] KEELC 1155 (KLR)
- Parties
- Plaintiff: Petronilla Mweni Manthi; Plaintiff: Andrew Willy Thiaka Manthi; Defendant: Stephen Mbithi t/a Northfields Estate
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 242 of 2016
- Procedural Posture
- Civil Suit / Judgment
- Outcome
- Plaintiffs' claim allowed in part; refund of deposit with interest and costs awarded.
- Judges
- OA Angote
- Legal Topics
- Sale of Land, Specific Performance, Breach of Contract, Refund of Deposit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Petronilla Mweni Manthi
Plaintiff
Andrew Willy Thiaka Manthi
Plaintiff
Stephen Mbithi t/a Northfields Estate
Defendant
Procedural Posture
Civil Suit / Judgment
Legal Issues
- 1 Whether the Defendant breached the Sale Agreement dated 31st January, 2016.
- 2 Whether the Plaintiffs are entitled to specific performance or refund of the deposit paid.
- 3 Who should bear the costs of the suit.
Ratio Decidendi
The court found that although the Agreement required the buyer to bear the cost of sub-division, the Defendant was obligated to facilitate the sub-division and obtain the Land Control Board's consent. The Defendant failed to take these steps and did not provide evidence of any effort to complete the transaction or demand further payment for sub-division. The absence of a completion period and the lapse of the statutory six-month period for obtaining consent rendered specific performance unavailable. The Plaintiffs were therefore entitled to a refund of the deposit paid, with interest, as the Defendant was in breach of the Agreement.
Court Disposition
Plaintiffs' claim allowed in part; refund of deposit with interest and costs awarded.
Orders
- The Defendant to refund the Plaintiffs Kshs. 1,000,000.
- Interest on the above amount to be paid by the Defendant at court rates from the date of filing this suit until payment in full.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. CASE NO.103 OF 2016
PETRONILLA MWENI MANTHI................1ST PLAINTIFF
ANDREW WILLY THIAKA MANTHI.........2ND PLAINTIFF
VERSUS
STEPHEN MBITHIt/a
NORTHFIELDS ESTATE...................................DEFENDANT
JUDGMENT
1. In the Plaint dated 7th September, 2016, the Plaintiffs averred that by an Agreement dated 31st January, 2016, the Defendant agreed to sell to the 1st Plaintiff six (6) acres of land for Kshs. 2,400,000; that in breach of the Agreement, the Defendant failed to furnish to the Plaintiffs the completion documents and that an order of specific performance compelling the Defendant to transfer six (6) acres of the suit land should issue. In the alternative, the Plaintiff is seeking for refund of Kshs. 1,000,000 plus interest at the rate of 18%.
2. In his Statement of Defence, the Defendant averred that it is the Plaintiffs who breached the Sale Agreement by not facilitating the process of sub-division and transfer of the six (6) acres; that no completion period was provided for in the Agreement and that the Plaintiffs should abide by the Agreement.
3. The 2nd Plaintiff, PW1, informed the court that the 1st Plaintiff nominated him as her agent in the purchase of the suit land; that the Defendant agreed to sell to the 1st Plaintiff six (6) acres of land for Kshs. 2. 4 million and that the Defendant was to facilitate the sub-division of the suit land.
4. According to PW1, after paying the Defendant Kshs. 1,000,000, he could not trace the Defendant and the sub-division of the land was never done. PW1 produced in evidence the Sale Agreement of 31st January, 2016 and three (3) letters. The bank slips were also produced in evidence.
5. In cross-examination, PW1 stated that it is the buyer who was required to facilitate for the sub-division of the suit land and that they never paid for the sub-division.
6. On his part, the Defendant, DW1, stated that he signed the Agreement of 31st January, 2016; that it is the buyer who was to retain a Surveyor to sub-divide the suit land and that the Sale Agreement did not have a completion date. According to DW1, it is the Plaintiffs who breached the Agreement of 31st January, 2016.
7. The Plaintiffs’ advocate deponed that the Agreement provided that the Defendant was to facilitate the sub-division process; that the deposit of Kshs. 1,000,000 that was paid to the Defendant was to be used for sub-division of the land and that the Defendant has nothing to show for the Kshs. 1,000,000 that was paid to him.
8. The Agreement of Sale of 31st January, 2016 shows that the Defendant agreed to sell to the Plaintiffs six (6) acres of land to be excised from the land that the Defendant had bought from a third party.
9. Although the Defendant agreed to facilitate the process of sub-division and subsequent transfer of the suit land, the Agreement provided that “the cost of sub-division and transfer will be borne by the buyer.” The Sale Agreement did not provide for the completion period, or how the balance of the purchase price was to be paid.
10. There is no evidence before me to show that the Defendant facilitated the process for sub-division, or that he retained a Surveyor for the purpose of sub-dividing the land. In fact, the Defendant did not procure the consent of the Land Control Board to have the suit land sub-divided, neither did he call for a specific amount for the process of sub-dividing the land. Consequently, it is the Defendant who is in breach of the Agreement of 31st January, 2016.
11. However, as I have stated above, the Agreement of Sale did not have a completion period. It would also appear that the period of six (6) months from the date of the Agreement within which the consent of the Land Control Board was to be obtained has lapsed. Consequently, the Plaintiffs’ only recourse is to have the deposit paid refunded.
12. For those reasons, I allow the Plaintiffs’ Plaint dated 7th September 2016 as follows:
a. The Defendant to refund the Plaintiffs Kshs. 1,000,000.
b. Interest on the above amount to be paid by the Defendant at court rates from the date of filing this suit until payment in full.
c. The Defendant to pay the costs of the suit.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 19TH DAY OF OCTOBER, 2018.
O.A. ANGOTE
JUDGE