[2017] KEELC 424 (KLR)
The court found that the plaintiffs had proved, on a balance of probabilities, that the defendants breached the sale agreement by failing to pay the balance of the purchase price for the suit land. The defendants, despite being served, failed to enter appearance or file a defense, and the plaintiffs' evidence...
Source-derived case information.
- Citation
- [2017] KEELC 424 (KLR)
- Parties
- Plaintiff: Winnie Chematia Settim; Plaintiff: Caroline Jepkemei Settim; Defendant: Shadrack Kipleting Kosgei; Defendant: Anne Cherugut Kosgei
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 184 of 2016
- Procedural Posture
- Land and Property Suit / Judgment
- Outcome
- judgment for the plaintiffs
- Judges
- MAO Odeny
- Legal Topics
- Breach of Contract, Vacant Possession, Sale of Land, Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Winnie Chematia Settim
Plaintiff
Caroline Jepkemei Settim
Plaintiff
Shadrack Kipleting Kosgei
Defendant
Anne Cherugut Kosgei
Defendant
Procedural Posture
Land and Property Suit / Judgment
Legal Issues
- 1 Whether the defendants breached the sale agreement dated 30th April 2015 by failing to pay the balance of the purchase price.
- 2 Whether the plaintiffs are entitled to cancellation of the sale agreement and vacant possession of the suit land.
- 3 Whether a permanent injunction and eviction orders should be issued against the defendants.
Ratio Decidendi
The court found that the plaintiffs had proved, on a balance of probabilities, that the defendants breached the sale agreement by failing to pay the balance of the purchase price for the suit land. The defendants, despite being served, failed to enter appearance or file a defense, and the plaintiffs' evidence remained unchallenged. The court held that the plaintiffs were entitled to cancellation of the sale agreement, vacant possession, a permanent injunction, and eviction orders. The court further ordered the defendants to vacate the land within 45 days, failing which eviction would issue, and awarded costs to the plaintiffs.
Court Disposition
judgment for the plaintiffs
Orders
- The sale agreement dated 30th April 2015 is hereby cancelled.
- The defendants to give vacant possession of plot No. 19 part of parcel of land No. CHEPSIRIA FARM LR. NO. 4482 within 45 days upon service of this judgment or decree, failing which eviction shall issue.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT ELDORET
ENVIRONMENT AND LAND CASE NO. 184 OF 2016
WINNIE CHEMATIA SETTIM………….….……1ST PLAINTIFF
CAROLINE JEPKEMEI SETTIM……….…..…..2ND PLAINTIFF
VERSUS
SHADRACK KIPLETING KOSGEI………..…1ST DEFENDANT
ANNE CHERUGUT KOSGEI…………………2ND DEFENDANT
JUDGMENT
By a plaint dated 6th July 2016, the plaintiffs herein sued the defendants jointly and severally for :
a. Vacant possession of plot No. 19 part of parcel of land No. CHEPSIRIA FARM LR. NO. 4482 for breach of contract.
b. Cancellation of the sale agreement dated 30th April 2015
c. A permanent injunction and eviction orders against the defendants in terms of paragraph 8 above.
d. Costs of this suit.
e. Any other or further relief this Honourable court may deem fit to grant.
The defendants were served with summons to enter appearance but neither entered appearance nor filed any defense in respect of this case. The case therefore proceeded by way of formal proof with service of a hearing notice upon the defendants.
This matter proceeded on 18th October 2017 when the 1st plaintiff testified and gave evidence on behalf of the 2nd plaintiff who is her daughter. The plaintiff stated that she has authority to give evidence on behalf of the 2nd plaintiff. She stated that the defendants herein were interested in purchasing ¼ of an acre of the 2nd plaintiff’s land known as plot No. 19 Chepsiria farm L.R No. 4482.
The 1st plaintiff gave evidence that they entered into a sale agreement dated 30th April 2015 which she produced as exhibit No. 1. That according to the agreement the purchase price was kshs. One million and fifty thousand (Kshs. 1,050,000/ only) of which the defendants paid Kshs. 700,000/ (Seven hundred thousand shillings only) upon execution of the agreement leaving a balance of Kshs. 350,000/ which was to be paid on 31/7/15.
The plaintiff stated that the balance has not been paid to date and the defendants are staying on the suit land. It was the plaintiff’s evidence that she was selling the land so that she could purchase another parcel of land. It was further the plaintiff’s testimony that she instructed her lawyers to write a demand letter to the defendants which is dated 7/10/15 and she produced it as exhibit No. 2. She prayed that judgement be entered against the defendants as prayed in the plaint.
Counsel for the plaintiffs filed written submissions and reiterated the evidence of the plaintiffs. He submitted that the plaintiff had proved her case and that judgement should be entered against the defendants as prayed as the evidence has not been controverted.
Determination
This is a claim by the plaintiffs for cancellation of a sale agreement and a permanent injunction against the defendants. The plaintiff gave evidence and produced exhibits in respect of the sale agreement that was not honored. She also stated that the defendants did not complete the payment of the purchase price for the suit land as agreed yet they have been staying on the land.
The defendants were given an opportunity to respond to the case but did not file any papers in court. The plaintiff’s evidence was uncontroverted. I find that the plaintiff has proved their case on a balance of probabilities and therefore enter judgement against the defendants jointly and severally and make the following orders:
a. That the sale agreement dated 30th April 2015 is hereby cancelled
b. An order that the defendants do give vacant possession of plot No. 19 part of parcel of land No. CHEPSIRIA FARM LR. NO. 4482 for breach of contract within 45 days upon service of this judgement or decree, in default of so vacating, an order of eviction be issued against the defendants from the suit land.
c. Cancellation of the sale agreement dated 30th April 2015
d. A permanent injunction is hereby issued against the defendants restraining them, their agents/servants from trespassing or interfering in any way with the suit land.
e. The defendants to pay the costs of this suit.
Dated and delivered at Eldoret on this 14th day of December, 2017.
M.A ODENY
JUDGE
Read in Open Court in the presence of:
Mr. Oyaro holding brief for Mr. Chepkwony for the Plaintiff
Mr. Koech – Court Assistant.
Defendant – Absent.