[2016] KEELC 919 (KLR)
The court found that the plaintiff and her late son jointly purchased the land from the defendant, paid the full purchase price, and took possession. The sale agreement was duly executed and witnessed. As the defendant failed to contest the claim, and the plaintiff's evidence was uncontroverted, the court held that...
Source-derived case information.
- Citation
- [2016] KEELC 919 (KLR)
- Parties
- Plaintiff: Ridah Mbuya Musungu; Defendant: Patrick Wakasala Wanyonyi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Land Case 104 of 2016
- Procedural Posture
- Land Case / Judgment
- Outcome
- judgment for the plaintiff
- Judges
- EO Obaga
- Legal Topics
- Specific Performance, Sale of Land, Joint Ownership, Transfer of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ridah Mbuya Musungu
Plaintiff
Patrick Wakasala Wanyonyi
Defendant
Procedural Posture
Land Case / Judgment
Legal Issues
- 1 Whether the plaintiff is entitled to specific performance of the sale agreement for 1.06 acres of land.
- 2 Whether the plaintiff and her late son were joint purchasers of the land.
- 3 Whether the defendant should be compelled to transfer the land to the plaintiff.
Ratio Decidendi
The court found that the plaintiff and her late son jointly purchased the land from the defendant, paid the full purchase price, and took possession. The sale agreement was duly executed and witnessed. As the defendant failed to contest the claim, and the plaintiff's evidence was uncontroverted, the court held that the plaintiff was entitled to specific performance. Upon the death of her son, the plaintiff became solely entitled to the land as the surviving joint purchaser. The defendant is therefore ordered to transfer 1.06 acres to the plaintiff, or in default, the Deputy Registrar shall execute the necessary documents.
Court Disposition
judgment for the plaintiff
Orders
- The defendant shall sign documents to transfer 1.06 acres of land to the plaintiff.
- If the defendant fails to sign, the Deputy Registrar shall execute all necessary documents to effect the transfer.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 104/2016
RIDAH MBUYA MUSUNGU …............................PLAINTIFF
VERSUS
PATRICK WAKASALA WANYONYI ...................DEFENDANT
J U D G E M E N T
The Plaintiff in this case is acting in person. She filed this suit against the Defendant seeking for an order that the Defendant do transfer 1. 06 acres out of his land described as Plot No Mt. Elgon/616. The Defendant who was duly served with summons to enter appearance and file defence neither entered appearance nor filed defence. The hearing therefore proceeded by way of formal proof.
PLAINTIFF'S CASE
The Plaintiff testified that in 2005 she and her late son one SYLVESTER WAKOLI INGOSI contributed money and came to Kiminini where they bought 1. 06 acres from the Defendant. They paid kshs 189,000/-. Her son who has since died built a five roomed house for her on the portion she had bought. She took possession and had been living on the land since then. She produced a copy of the sale agreement exhibit 1.
ANALYSIS OF THE EVIDENCE
The Plaintiff's evidence was not controverted. A look at the agreement dated 28/10/2005 at the top shows that the purchaser was SYLVESTER SHIKOLI INGOSI.However at the middle of the same agreement the purchasers are shown to be SYLVESTER SHIKOLI I which I presume to be INGOSIand RIDAH MBUYA MUSUNGUthe plaintiff herein.
The sale was duly witnessed before the area assistant chief as per the stamp on it. From the agreement it is clear that the entire purchase price was paid on the date the agreement was made. What in essence the plaintiff is seeking is an order of specific performance of the agreement.
It is not clear from the pleadings whether Plot Known as Mt Elgon/616is registered or not. However be that as it may, the agreement shows that the plot was jointly bought by two persons at least from what is shown in the middle where the name of the deceased is shown alongside that of the plaintiff as purchasers. Upon the death of the Plaintiff's son, the entire land automatically reverted to the plaintiff since they were joint purchasers. As the purchase price was fully paid, I find that the plaintiff's claim is well founded.
DECISION
I order that the Defendant do sign documents to transfer 1. 06 acres to the Plaintiff failing which the Deputy Registrar of this court should sign all documents to ensure that 1. 06 acres is transferred to the Plaintiff. The plaintiff shall have costs of this suit.
Dated, signed and delivered at Kitale on this 6th day of April 2016.
E. OBAGA
JUDGE
In the presence of Plaintiff.
Court Assistant – Isabellah
E. OBAGA
JUDGE
6/4/16