[2018] KEELC 3094 (KLR)
The court found that the plaintiff had proved, on a balance of probabilities, that there was a valid contract for the sale of land, that she paid the full purchase price, and that the defendant breached the agreement by failing to give vacant possession. The defendant's failure to appear or defend the suit left the...
Source-derived case information.
- Citation
- [2018] KEELC 3094 (KLR)
- Parties
- Plaintiff: Rusi Chepngetich Bigen; Defendant: Kemei Kibet Philiph
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 57 of 2017
- Procedural Posture
- Civil Suit / Judgment
- Outcome
- judgment for the plaintiff
- Judges
- DO Ogal
- Legal Topics
- Sale of Land, Breach of Contract, Remedies for Breach, Specific Performance, Damages, Contract Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rusi Chepngetich Bigen
Plaintiff
Kemei Kibet Philiph
Defendant
Procedural Posture
Civil Suit / Judgment
Legal Issues
- 1 Whether there was a valid contract for the sale of land between the plaintiff and the defendant.
- 2 Whether the defendant breached the terms of the sale agreement by failing to give vacant possession.
- 3 Whether the plaintiff is entitled to a refund of the purchase price and general damages for breach of contract.
Ratio Decidendi
The court found that the plaintiff had proved, on a balance of probabilities, that there was a valid contract for the sale of land, that she paid the full purchase price, and that the defendant breached the agreement by failing to give vacant possession. The defendant's failure to appear or defend the suit left the plaintiff's evidence uncontroverted. The court accepted the plaintiff's documentary and oral evidence, including the sale agreement and the undertaking to refund, as sufficient proof. Consequently, the court held that the plaintiff was entitled to a refund of the contract sum and general damages for breach of contract, as well as costs and interest.
Court Disposition
judgment for the plaintiff
Orders
- The defendant shall pay the plaintiff Kshs. 429,000 being the contract sum.
- The defendant shall pay the plaintiff Kshs. 100,000 as general damages for breach of contract.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KERICHO
ELC CASE NO. 57 OF 2017
RUSI CHEPNGETICH BIGEN.........................PLAINTIFF
Versus
KEMEI KIBET PHILIPH...............................DEFENDANT
JUDGMENT
Introduction
1. By a Plaint dated 15th May 2017 the Plaintiff filed suit against the Defendant for the sum of Kshs. 429,000 as well as general damages as a result of a breach of contract relating to the sale of land parcel number KERICHO/KAPSUSER/5014.
2. Despite being served with Summons to enter appearance the Defendant neither entered appearance nor filed a defence. The suit therefore proceeded ex-parte.
3. The plaintiff testified that she entered into an agreement dated 4th August 2012 for the sale of L.R No. KERICHO/KAPSUSER/5014 measuring 25 by 100 feet for a consideration of 330,000.
4. It was a term of the said agreement that immediately after the payment of the purchase price, the defendant would give the plaintiff vacant possession of the suit land. It was also a term of the agreement that in the event of breach of the agreement, the defendant would refund the purchase price together with a penalty of 30% of the purchase price.
5. In breach of the said agreement the plaintiff paid the purchase price but the defendant refused to give him vacant possession of the suit land. The plaintiff produced the sale agreement together with an undertaking by the defendant to refund the sum paid by the plaintiff as exhibits.
6. The Plaintiff called two witnesses who were present when the plaintiff purchased the suit land and who corroborated his testimony.
7. Since the plaintiff’s evidence was unchallenged I have no reason to disbelieve her. Furthermore, her exhibits and witnesses testify as to the truth of what she stated.
8. I therefore find that the Plaintiff has proved her case on a balance of probabilities and she is entitled to the remedies sought. In addition to the sum claimed, the plaintiff is also entitled to general damages for breach of contract. Counsel for the Plaintiff has suggested as figure of Kshs. 100,000 as general damages which I find reasonable in the circumstances.
9. Accordingly, I enter judgment of the Plaintiff as follows:
a. Kshs. 429,000 being the contract sum
b. Kshs. 100,000 General damages
c. Costs of this suit
d. Interest on a) and b) at court rates until payment in full
Dated, signed and delivered at Kericho this 25th day of May 2018
J. M. ONYANGO
JUDGE
In the presence of:
1. Mr. Koske for the Plaintiff
2. N/A for the Defendant
3. Court Assistant - Rotich