[2012] KEHC 1394 (KLR)
The court found that the defendant's defence, in light of the uncontroverted affidavit evidence and the admissions in the pleadings, did not raise any triable issues regarding the plaintiff's alternative prayer for refund of the purchase price and related charges. The defendant failed to file any response to the...
Source-derived case information.
- Citation
- [2012] KEHC 1394 (KLR)
- Parties
- Plaintiff: Philemon Kiplagat Kiprono; Defendant: Wheeler K. Kenei t/a Green Acres Property Solutions
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Case 112 of 2011
- Procedural Posture
- Civil Case / Ruling on Chamber Summons for Striking Out Defence and Entering Judgment
- Outcome
- application allowed; judgment entered for plaintiff
- Legal Topics
- Striking Out Defence, Summary Judgment, Sale of Land Agreements, Refund of Purchase Price
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Philemon Kiplagat Kiprono
Plaintiff
Wheeler K. Kenei t/a Green Acres Property Solutions
Defendant
Procedural Posture
Civil Case / Ruling on Chamber Summons for Striking Out Defence and Entering Judgment
Legal Issues
- 1 Whether the defendant's defence discloses any reasonable defence to the plaintiff's claim for refund of purchase price and related charges.
- 2 Whether the plaintiff is entitled to judgment as prayed for refund of Kshs. 1,032,000/-.
- 3 Whether interest and costs should be awarded to the plaintiff.
Ratio Decidendi
The court found that the defendant's defence, in light of the uncontroverted affidavit evidence and the admissions in the pleadings, did not raise any triable issues regarding the plaintiff's alternative prayer for refund of the purchase price and related charges. The defendant failed to file any response to the application, and the only explanation for non-performance was an unsubstantiated claim of ongoing transfer delayed by unforeseen circumstances. The court held that the plaintiff was entitled to judgment for the sum paid, together with costs and interest at court rates from the date of suit, as the agreement was silent on punitive damages.
Court Disposition
application allowed; judgment entered for plaintiff
Orders
- Judgment is entered in favour of the plaintiff against the defendant for Kshs. 1,032,000/-.
- The sum shall attract interest at court rates from the date of institution of the suit until payment in full.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
High Court at Eldoret
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PHILEMON KIPLAGAT KIPRONO..................................................................PLAINTIFF
VERSUS
WHEELER K. KENEI T/AGREEN ACRES PROPERTY SOLUTIONS......DEFENDANT
RULING
This Chamber Summons has been brought under Order 2 Rule 15 of the Civil Procedure Rules and seeks that the defendant's defence be struck out and that judgment be entered for the plaintiff as prayed in the plaint. The application, which is supported by an affidavit sworn on 1st August, 2011 by the plaintiff, is based on the grounds that the defence discloses no reasonable defence; comprises of admissions and is a sham whose purposes is to delay the fair trial of the action.
No replying affidavit or grounds of opposition have been filed by the defendant and the evidence contained in the plaintiff's affidavit stands uncontroverted. The affidavit reveals that the plaintiffs claim against the defendant arises from an agreement between him and the defendant in respect of the suit property. The defendant was paid Kshs. 1000,000/- which was the agreed purchase price. The plaintiff also paid Kshs. 32000/- as stamp duty and other related charges.
The defendant in his defence admits the agreement but denies failing to perform his part of the bargain contending that he is in the process of transferring the suit land to the plaintiff and that the delay was occasioned by unforeseen circumstances.
The plaintiff, through his counsel, abandoned the prayer for specific performance and urged refund of the purchase price plus the said Kshs. 32000/- paid for transfer.
Given the evidence detailed above, the defendant's defence to the alternative prayer for refund of Kshs. 1,032,000/- is a sham which does not raise any triable issues and in the premises the plaintiff is entitled to the orders sought in his application under consideration.
Accordingly, the application is allowed and judgment entered in favour of the plaintiff against the defendant for Kshs. 1,032,000/- together with costs and interest. The agreement between the parties was silent on the punitive damages payable in the event of default. In the premises, I order that the said sum attracts interest at court-rates from the date of institution of this suit until payment in full.
Orders accordingly.
DATED AND DELIVERED AT ELDORET
THIS 5TH DAY OF SEPTEMBER, 2012
F. AZANGALALA
JUDGE
Read in the presence of:-
Mr. Mutai for the Appellant.
F. AZANGALALA
JUDGE
5TH SEPTEMBER, 2012