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ELCPartially Allowed· [2016] KEELC 196 (KLR)

Catherine Jepkorir Timbomei Kurui v Scolar Jebiwot Korir (Environment & Land Case 1009 of 2012) [2016] KEELC 196 (KLR)

Environment and Land Court
4 November 2016
AOANTONY OMBWAYO
743 words in judgment
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The bottom line

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A Kenyan court refunded a land buyer in full with interest because the seller could never identify the plot sold.

What this practically means

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Executive summary

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The plaintiff sued the defendant claiming that by a sale agreement dated 11th February 2009 the defendant sold her land parcel Eldoret Municipality Block 9/2464 for Kshs.320,000/=, with possession to pass on signing and the defendant to facilitate transfer. She paid the full purchase price after conducting a registry search and being shown a vacant plot. When she went to fence it, she found it had been developed by a third party. The defendant explained she had erred as to the actual location, pointing to a swampy area about 200 metres north, but never provided a map or took the plaintiff to the site despite promises, and failed to respond to a May 2012 demand notice except by a telephone apology. The plaintiff sought specific performance compelling the defendant to point out and transfer the land, or alternatively rescission of the agreement and refund of Kshs.320,000/= with costs and interest from 11th February 2009. The court found the plaintiff had proved the agreement and full payment, but that she was never given the land because it was never identified. Specific performance was therefore refused, and the court granted the alternative prayer: rescission/revocation of the sale agreement, refund of Kshs.320,000/=, plus costs and interest at court rates from 11th February 2009 until settlement in full. Judgment was delivered at Eldoret on 4th November 2016 by Antony Ombwayo J.

Key legal issues

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01

Whether specific performance could issue in respect of land whose actual location was never identified

Holding

Specific performance was refused; the court granted the alternative relief of rescission and refund

Reasoning

The court found that the plaintiff proved, to the applicable standard, that she entered into a sale agreement over part of Eldoret Municipality Block 9/2464 and paid the agreed Kshs.320,000/=, but was never given the land. Because the land to be sold was not identified - the plot shown to the plaintiff turned out to be third-party property and the defendant never pointed out the actual location - a decree of specific performance would be incapable of execution. The court therefore invoked the plaintiff's alternative prayer for rescission/revocation of the agreement and ordered a refund with interest from the date of the agreement.

p. 3

Legal principles established

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  • An order of specific performance of a contract for sale of land cannot be granted where the land to be sold was not identified; the remedy in such a case is rescission and refund of the purchase price

Court orders

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  1. 1.An order of rescission/revocation of the sale agreement dated 11.02.2009
  2. 2.Refund of Kshs.320,000/= being the purchase price
  3. 3.Costs of the suit to the plaintiff
  4. 4.Interest at court rates from 11th February, 2009 till settlement in full
Jurisdiction invoked
not stated in the judgment (original civil suit under the court's land jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Catherine Jepkorir Timbomei Kurui v Scolar Jebiwot Korir (Environment & Land Case 1009 of 2012) [2016] KEELC 196 (KLR)", Case Analysis (2016). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/196/eng@2016-11-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.