[2015] KEHC 1850 (KLR)
The court found that the plaintiff had proved, on a balance of probabilities, that the defendant breached the sale agreement by failing to fulfill the contractual obligations, and that the plaintiff was entitled to a refund of the Ksh. 450,000 paid. The defendant's admission of receipt of the sum and failure to...
Source-derived case information.
- Citation
- [2015] KEHC 1850 (KLR)
- Parties
- Plaintiff: Rev. Wachira Karani; Defendant: Mr. Bildad Wachira
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Case 101 of 2011
- Procedural Posture
- Civil Case / Judgment
- Outcome
- judgment for the plaintiff
- Judges
- JM Mativo
- Legal Topics
- Breach of Contract, Refund of Purchase Price, Sale of Land, Specific Performance, Damages, Contract Termination
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rev. Wachira Karani
Plaintiff
Mr. Bildad Wachira
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the defendant breached the sale agreement dated 14.2.2008.
- 2 Whether the plaintiff is entitled to a refund of Ksh. 450,000 plus costs and interest.
- 3 Whether the defendant refunded any part of the purchase price.
Ratio Decidendi
The court found that the plaintiff had proved, on a balance of probabilities, that the defendant breached the sale agreement by failing to fulfill the contractual obligations, and that the plaintiff was entitled to a refund of the Ksh. 450,000 paid. The defendant's admission of receipt of the sum and failure to adduce evidence of repayment or compliance with the agreement, despite proper service of hearing notice, led the court to accept the plaintiff's evidence as uncontroverted. The court therefore entered judgment for the plaintiff for the claimed sum, plus costs and interest at court rates from the date of filing until payment in full.
Court Disposition
judgment for the plaintiff
Orders
- Judgment entered in favour of the plaintiff against the defendant for Ksh. 450,000 plus costs and interest at court rates from the date of filing until payment in full.
- Costs and interest at court rates from date of judgment.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
CIVIL CASE NO. 101 OF 2011
REV. WACHIRA KARANI……PLAINTIFF
VERSUS
MR. BILDAD WACHIRA..….DEFENDANT
JUDGEMENT
The Plaintiffs claim as enumerated in the Plaint dated 18. 7.2011 is for recovery of Ksh. 450,000/= plus costs and interests being the amount of money allegedly due and owing from the Defendant to the Plaintiff in respect of monies paid by the Plaintiff to the Defendant pursuant to a sale agreement dated 14. 2.2008 entered into between the Plaintiff and the Defendant. The Plaintiff avers that the Defendant breached the agreed terms and or conditions of the said agreement hence the claim for the refund. Details of the said agreement are inter alia that the Defendant offered to sell and the Plaintiff agreed to purchase four plots described in the said agreement at an agreed price of Ksh. 450,000/= per plot and upon signing the said agreement the Plaintiff paid to the Defendant a deposit of Ksh. 450,000/= receipt whereof the Defendant confirmed by signing the said agreement, and the balance thereof was payable on or before 30th December 2008 but subject to the conditions stated in the said agreement.
The Plaintiffs case is that the Defendant breached the said agreement and has enumerated particulars of breach in the plaint, and that as a result of the said breach the Plaintiff issued a termination notice of the said agreement and demanded a refund of the said sum, which amount the Defendant has failed and or refused to refund hence this suit.
The Defendant filed a defence admitting receipt of the said sum of Ksh. 450,000/= but claims that he commenced the process of processing the transfer but the Plaintiff became impatient and demanded his money back. He alleges that he refunded Ksh. 100,000/= to the defendant being part repayment thereof.
At the hearing of this suit, there was no appearance for the Defendant even though his advocates had been served with a hearing notice dated 15th July 2015 clearly indicating that the hearing was scheduled on 6th 0ctober 2015. The matter was called at 9. 15am and hearing allocated for 10. 30am. The case was mentioned at 11. 15am and still there was no appearance for the Defendant. Hearing proceeded at 12. 20pm in the absence of the Defendant or his advocate after the court was satisfied that there was proper service.
At the hearing, the Plaintiff adopted his written statement dated 18. 7.2011 and the documents filed in court which the Plaintiff identified, particularly the sale agreement and letter of allotment which were produced as exhibits. Save for the admission in the defence, none of the allegations in the defence were admitted.
I have carefully evaluated the Plaintiffs’ testimony; and the documents relied upon in this case and I also examined the demeanour of the Plaintiff as he gave evidence in court, and I am satisfied that in absence of evidence to the contrary the plaintiff has proved his case on a balance of probabilities as required in civil cases.
The upshot is that the plaintiffs claim is allowed, hence I hereby find for the plaintiff and enter judgement in favour of the plaintiff against the defendant as follows:-
That Judgement be and is hereby entered in favour of the plaintiff against the defendant for Ksh. 450,000/= plus costs and interests thereon at court rates from the date of filing this suit until payment in full.
Costs and interests thereon at court rates from date of judgement.
Right of appeal 28 days
Dated at Nyeri this 19thday of October2015
John M. Mativo
Judge