[2005] KEHC 2897 (KLR)
The court found that the defendant received the full purchase price for the sale of land but failed to transfer the property to the plaintiff. The defendant did not deny the sale or receipt of the money and offered no legal justification for retaining both the land and the money. The court held that there was a...
Source-derived case information.
- Citation
- [2005] KEHC 2897 (KLR)
- Parties
- Plaintiff: Titova Zinaida Njogu; Defendant: Wilson Oledemi Ole Mututua
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 757 of 2001
- Procedural Posture
- Civil Case / Judgment
- Outcome
- judgment for the plaintiff
- Legal Topics
- Sale of Land, Failure of Consideration, Specific Performance, Refund of Purchase Price
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Titova Zinaida Njogu
Plaintiff
Wilson Oledemi Ole Mututua
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the defendant failed to transfer the land after receiving the full purchase price.
- 2 Whether the plaintiff is entitled to a refund of the purchase price due to failure of consideration.
Ratio Decidendi
The court found that the defendant received the full purchase price for the sale of land but failed to transfer the property to the plaintiff. The defendant did not deny the sale or receipt of the money and offered no legal justification for retaining both the land and the money. The court held that there was a total failure of consideration on the part of the defendant, entitling the plaintiff to a refund of the purchase price. Judgment was therefore entered for the plaintiff for the sum of Kshs.600,000 plus costs and interest at court rates from the date of filing suit until payment in full.
Court Disposition
judgment for the plaintiff
Orders
- Judgment entered for the plaintiff in the sum of Kshs.600,000.
- Defendant to pay costs of the suit.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI COMMERCIAL DIVISION, MILIMANI CIVIL CASE NO. 757 OF 2001
TITOVA ZINAIDA NJOGU……………………………….PLAINTIFF VERSUS WILSON OLEDEMI OLE MUTUTUA……………..DEFENDANT
J U D G E M E N T
The Plaintiff in this suit, TITOVA ZINAIDA NJOGU, has sued the Defendant, WILSON OLEDEMI OLE MUTUTUA, for a refund of Kshs.600,000/00, the same being the purchase price paid for one acre of land to be excised from land parcel L.R. NGONG/NGONG/11052, and which land the Defendant has refused or neglected to transfer to her. In his statement of defence the Defendant does not deny the sale, or that he received the consideration of Kshs.600,000/00. Instead he pleads a family dispute involving the entire ancestral land of which the land sold is part.
The Defendant did not attend court at the hearing, though his advocate was present. The Plaintiff testified and was cross-examined by the Defendant’s counsel. She produced a copy of the sale agreement (Exhibit P2), having lost the original. As evidence of loss of the original she produced a police abstract (Exhibit P1). Receipt of the full purchase price of Kshs.600,000/00 is acknowledged by the Defendant in the sale agreement. As already stated, the Defendant does not deny the sale or receipt of the consideration in his statement of defence.
The available evidence clearly shows that there has been a total failure of consideration on the Defendant’s part, in that, despite being paid the full purchase price, he has failed to transfer the property sold unto the Plaintiff. There is no justification for him to continue keeping both the land and the money. I will in the circumstances enter judgment for the Plaintiff in the sum of Kshs.600,000/00 plus costs and interest at court rates from the date of filing suit until payment in full. Order accordingly.
DATED, SIGNED AND DELIVERED IN OPEN COURT
THIS…………………………….DAY OF JANUARY 2005.
H.P.G. WAWERU
JUDGE