[2015] KEHC 7042 (KLR)
The court found that the plaintiff and defendant entered into a valid sale agreement for 2 acres of land, with the plaintiff paying the majority of the purchase price and taking possession. However, the defendant failed to obtain Land Control Board consent for transfer and did not execute the necessary transfer...
Source-derived case information.
- Citation
- [2015] KEHC 7042 (KLR)
- Parties
- Plaintiff: Simon Muturi Wahome; Defendant: Stanley Maina Ngure
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 146 of 2013
- Procedural Posture
- Land Case / Formal Proof Judgment
- Outcome
- judgment_for_plaintiff_on_alternative_prayer
- Judges
- AC Mrima, L Waithaka
- Legal Topics
- Sale of Land, Specific Performance, Breach of Contract, Damages for Breach, Land Control Board Consent
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Muturi Wahome
Plaintiff
Stanley Maina Ngure
Defendant
Procedural Posture
Land Case / Formal Proof Judgment
Legal Issues
- 1 Whether the plaintiff is entitled to transfer of 2 acres of land parcel No. NYERI/WARAZA/2070 or refund of the purchase price paid.
- 2 Whether the plaintiff is entitled to damages for breach of contract at 20% per annum and the value of developments on the land.
Ratio Decidendi
The court found that the plaintiff and defendant entered into a valid sale agreement for 2 acres of land, with the plaintiff paying the majority of the purchase price and taking possession. However, the defendant failed to obtain Land Control Board consent for transfer and did not execute the necessary transfer documents. As the transaction required such consent under the Land Control Act, and the defendant's failure rendered specific performance unavailable, the court held that the plaintiff was entitled to a refund of the amount paid as purchase price, damages at 20% per annum for breach, and the value of developments made on the land. The court thus granted judgment for the plaintiff...
Court Disposition
judgment_for_plaintiff_on_alternative_prayer
Orders
- The defendant shall refund to the plaintiff the amount already paid as purchase price.
- The defendant shall pay damages at 20% per annum of the purchase price for breach of contract.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
IN THE HIGH COURT AT NYERI
ENVIRONMENT & LAND CASE NO. 146 OF 2013
SIMON MUTURI WAHOME..............................................................................PLAINTIFF
VS
STANLEY MAINA NGURE............................................................................DEFENDANT
JUDGMENT
The plaintiffs claim is that at all material times relevant to the suit the defendant was the registered owner of land parcelNo. Nyeri/Waraza/1922 measuring 5 acres or thereabout which has since been subdivided into two portions of 3 acres and 2 acres being parcel No. Nyeri/Waraza/2069andNyeri/Waraza/2070. On or around the 30th day of September 2009 the plaintiff and the defendant entered into a written sale agreement where the plaintiff was buying and the defendant was selling 2 acres out of his entitlement in Land Parcel No. NYERI/WARAZA/199 at an agreed price of Ksh.320,000/= (three hundred and twenty thousand only).
On the material day the defendant received Ksh.35,000/- (thirty five thousand only) in addition to Ksh.235,000/- (two hundred and thirty five thousand) which he had received earlier and acknowledged receipt of the total amount of Ksh. 270,000/= (two hundred and seventy thousand only) upon execution of the agreement dated 30th September 2009. The defendant has further received from the plaintiff Ksh30,000/= (thirty thousand only leaving a balance of Ksh. 20,000/= (twenty thousand only) The plaintiff took possession of the 2 acre of land which had already been surveyed immediately upon execution of the agreement and has remained there to date and has extensively developed the land.
That the original land which was a subject matter in Nyeri Succession cause No. 797 of 2009 in the estate of plaintiff's deceased father was shared among beneficiaries and the defendant got his share of the land measuring 5 acres or thereabout whichLand Parcel No. Nyeri/Waraza/1922. On or around the 14th day of June 2012 the1st defendant obtained land control board consent for subdivision of the aforesaid parcel of land into two portions of 2 acres and 3 acres respectively. The 1st defendant has refused to apply for Land Control Board consent for transfer of 2 acres to the plaintiff and execute transfer documents in favour of the plaintiff for parcel No.Nyeri/Waraza/2070.
The plaintiff's claim against the defendant is for transfer of 2 acres in Land Parcel No. NYERI/WARAZA/2070 or in the alternative refund of the amount already paid as purchase price and 20% per annum of the same as damages for breach plus the value of the developments on the ground. The plaintiff avers that he is ready and willing to pay the balance of the purchase price which now stands at Ksh.20,000/= (twenty thousand only) upon the defendant obtaining Land Control Board consent for transfer.
The defendant herein was served with summons to enter appearance and a plaint and having failed to enter appearance or file defence within the stipulated period by law. Interlocutory judgment was entered against the defendant and case fixed for formal proof.
The plaintiff's case was that he had an agreement with the defendant where the plaintiff was buying and defendant was selling land registration No. NYERI/WARAZA/1922 measuring 5 acres which has been divided in land parcel Nos 2069 and 2070.
The agreement was signed by the plaintiff and defendant and witnessed by Charles Murangu and Amos Mwangi Muturi and Lucy W. Hungi for the plaintiff. For the seller defendant herein, It was signed by Samuel Ngunyi and Charles Murage and Purigy Nyawira Maina and others.The plaintiff paid the consideration of Kshs. 370,000/-
I have considered the evidence on record and do find that this suit succeeds only on the alternative prayer of refund of the amount already paid as purchase price and 20% per annum of the same as damages for breach plus the value of the developments on the ground.
DATED AND SIGNED AT ELDORET THIS ....................DAY OF............................. 2015
OMBWAYO ANTONY
JUDGE
DELIVERED AND SIGNED AT NYERI THIS 3RD DAY OF FEBRUARY ,2015
LUCY WAITHAKA
JUDGE