[2013] KEHC 5948 (KLR)
The court found that the defendant was not the registered proprietor of the subject land, but merely a broker, and therefore could not be compelled to specifically perform the contract by transferring the plot or an alternative. Furthermore, the plaintiff did not seek a refund of the purchase price, which would have...
Source-derived case information.
- Citation
- [2013] KEHC 5948 (KLR)
- Parties
- Plaintiff: Wambua Mwangi; Defendant: Samuel Kamunye Gichigi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 425 of 2009
- Procedural Posture
- Civil Suit / Judgment After Formal Proof Following Interlocutory Judgment Due to Non Appearance
- Outcome
- suit dismissed
- Judges
- MM Gitumbi
- Legal Topics
- Sale of Land, Specific Performance, Breach of Contract, Remedies for Breach, Title to Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wambua Mwangi
Plaintiff
Samuel Kamunye Gichigi
Defendant
Procedural Posture
Civil Suit / Judgment After Formal Proof Following Interlocutory Judgment Due to Non Appearance
Legal Issues
- 1 Whether the plaintiff is entitled to an order of specific performance compelling the defendant to transfer Plot No. 2.0 on L.R. NO. 209/10969 or an alternative plot.
- 2 Whether the plaintiff is entitled to general damages for breach of contract.
Ratio Decidendi
The court found that the defendant was not the registered proprietor of the subject land, but merely a broker, and therefore could not be compelled to specifically perform the contract by transferring the plot or an alternative. Furthermore, the plaintiff did not seek a refund of the purchase price, which would have been the appropriate remedy. The court also held that general damages are not available for breach of contract. As a result, the suit was dismissed with no order as to costs.
Court Disposition
suit dismissed
Orders
- The suit is dismissed with no order as to costs.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
ELC. CASE NO. 425 OF 2009
WAMBUAMWANGANGI ……………………………..………..PLAINTIFF
VERSUS
SAMUEL KAMUNYE GICHIGI……………….………………..DEFENDANT
JUDGMENT
The Plaintiff filed suit vide his plaint dated 6/8/09 in which he prayed for judgment against the Defendant be entered for:-
Plot No. 2. 0 on L. R. NO. 209/10969 or alternative plot on LR No. 209/10969.
General damages
Costs of this suit.
The Plaintiff and the Defendant entered into a Sale Agreement dated 23rd August 2007 in which the Defendant agreed to sell plot No. 2. 0 within L.R. NO. 209/10969 to the Plaintiff. It was indicated in the Sale Agreement that the current registered owner of L.R. No. 209/10969 was Vision Dominion Investment Limited and that the Defendant was the “beneficial owner” thereof. The full purchase price was cited as Ksh. 600,000/- which was acknowledged as having already been paid by the Plaintiff to the Defendant. It was a condition of the said Sale Agreement that the completion date was ninety (90) days from the date of signing or the date the title would issue upon subdivision of L.R. NO. 209/10969.
However, since the purchase of the parcel, the Defendant never issued the Plaintiff the title to the said parcel. On or about May 2009, the Plaintiff commenced construction on the said plot but he was informed by the Defendant that the said plot belonged to another person who had already been issued with title. When the Plaintiff approached the Defendant and inquired as to why he had sold the said plot to another person and issued him with title, the Defendant admitted that the same was disposed off by mistake and he was ready to give him another plot on the same L. R. No. 209/10969. The Defendant subsequently failed to give the Plaintiff the alternative plot of land, hence this suit.
The Defendant having been served with summons to enter appearance failed to enter appearance or file a defence resulting in interlocutory judgment being entered against him on 18/9/11 and the matter proceeded for formal proof.
The Plaintiff has established that he and the Defendant entered into a Sale Agreement for the purchase of Plot No. 2. 0 on L.R. NO. 209/10969. He has also proved that he paid the Defendant the full purchase price thereof of Ksh. 600,000/-. He has established that the said plot was sold to someone else and that though the Defendant promised him an alternative plot within L.R. NO. 209/10969, this promise was not fulfilled.
Interesting to note is that the Plaintiff does not in his prayers, request for a refund of the purchase price of Ksh. 600,000/-. He instead seeks an order of specific performance compelling the Defendant to transfer to him the said plot No. 2. 0 on L.R. NO. 209/10969 or an alternative plot therein.
This court declines to award the sought after order of specific performance for the reasons that the registered proprietor of L.R. No. 209/10969 is not the Defendant but a company known as Vision Dominion Investment Limited. No evidence has been adduced to show that the subject plot was transferred by the said company to the Defendant. As far as I can tell, the Defendant appears to have been a mere broker mediating in the sale of the plots on L.R. NO. 209/10969. To that extent therefore, this court declines to grant the order of specific performance.
On the request for general damages, it has been held on numerous occasions that there can be no general damages for breach of contract see Jospeh Ongad v. Ebby Kangisha Karai (Personal Representative of Ephraim Karai,deceased) C.A. No. 239 of 1997.
The Plaintiff did not pray for a refund of the purchase price of Ksh. 600,000/-. That is the remedy most suited to him but as he did not see it fit to request for it, this court cannot award the same.
Accordingly, this court dismisses the suit with no award as to costs.
SIGNED AND DELIVERED AT NAIROBI ON THE 14TH
DAY OF JUNE 2013.
MARY M. GITUMBI
JUDGE