[2013] KEHC 940 (KLR)
The court found that the defendant breached the sale agreement by failing to pay the balance of the purchase price after taking possession of the land. The agreement provided for rescission and forfeiture of the deposit in the event of default. The plaintiff's evidence was uncontroverted, and the court was satisfied...
Source-derived case information.
- Citation
- [2013] KEHC 940 (KLR)
- Parties
- Applicant: Zaccheaus Gitonga Turuchiu; Defendant: Kenneth Kirimi Kaburu
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 9 of 2012
- Procedural Posture
- Civil Case / Formal Proof Judgment
- Outcome
- Judgment for the plaintiff.
- Judges
- FM Njoroge
- Legal Topics
- Sale of Land, Breach of Contract, Rescission of Agreement, Forfeiture of Deposit
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zaccheaus Gitonga Turuchiu
Applicant
Kenneth Kirimi Kaburu
Defendant
Procedural Posture
Civil Case / Formal Proof Judgment
Legal Issues
- 1 Whether the defendant breached the sale agreement dated 6th April, 2009.
- 2 Whether the plaintiff is entitled to rescission of the agreement and forfeiture of the deposit.
- 3 Whether the plaintiff is entitled to general damages for breach of contract.
Ratio Decidendi
The court found that the defendant breached the sale agreement by failing to pay the balance of the purchase price after taking possession of the land. The agreement provided for rescission and forfeiture of the deposit in the event of default. The plaintiff's evidence was uncontroverted, and the court was satisfied that the plaintiff had formally proved his case. Consequently, the court declared the agreement rescinded, the deposit forfeited, and awarded general damages for breach of contract, as well as costs and interest.
Court Disposition
Judgment for the plaintiff.
Orders
- The sale agreement dated 6th April, 2009 is rescinded by virtue of the defendant's breach.
- The deposit of Kshs.350,000 is declared forfeited to the plaintiff.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
ENVIRONMENT AND LAND COURT AT MERU
CIVIL CASE NO. 9 OF 2012
ZACCCHEAUS GITONGA TURUCHIU.....................................................APPLICANT
VERSUS
KENNETH KIRIMI KABURU..................................................................DEFENDANT
J U D G M E N T
The plaint herein is dated 9th May, 2013 and prays for judgment against the Defendant for:
(a) A declaration that the Sale Agreement dated 6th April, 2009 has been rescinded by virtue of the Defendant's breach of the terms of the said Agreement and that the deposit of Kshs.350,000/ be deemed as forfeited.
(b) General damages for breach of the contract.
(c) Costs of the suit and interest.
An Interlocutory Judgment was entered against the defendant and formal proof hearing took place on 13th May, 2013.
During formal proof hearing the Plaintiff gave evidence that on 6. 4.2009, he had entered into an agreement with the defendant for sale of land parcel No. TIMAU SETTLEMENT SCHEME/1066 measuring 2. 2. acres. The purchase price was Kshs.700,000/=. The defendant took possession of the suit land upon the signing of the agreement. He however only paid Kshs.350,000/= and refused to pay the balance of Kshs.350,000. There was a penal clause to the effect that if there was default, the innocent party would be paid a sum of Kshs.1,400,000/= being double the purchase price.
The Plaintiff gave evidence that he was forced, due to the breach of the contract by the Defendant, to borrow a loan to educate his children. His business was also affected. His intention when he entered into an agreement with the Defendant was to educate his children and to improve his business.
He, therefore, prayed for judgment against the Defendant as per the prayers in the plaint.
I am satisfied that the Plaintiff has formally proved his case. I, therefore, grant orders as follows:
I declare that the sale agreement dated 6th April, 2009 has been rescinded by virtue of the Defendant's breach of the terms of the said Agreement and that the deposit of Kshs.350,000 is declared forfeited.
The Plaintiff is awarded general damages for breach of contract in the sum of Kshs. five hundred thousand (Kshs.500,0000/=) only.
Costs of the suit and interest are awarded to the Plaintiff.
It is so ordered.
Delivered in Open Court at Meru this 10th day of October, 2013 in the presence of:
Cc. Mwonjaru
Zaccheaus Gitonga Turuchiu - Plaintiff
P. M. NJOROGE
JUDGE