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ELCPartially AllowedELC Case No. 121 of 2011· [2016] KEELC 1139 (KLR)

Francis Kisivo Wambua v Sheikha Ahmed Mohamed Al-Jabir & another [2016] KEELC 1139 (KLR)

Environment and Land Court
17 February 2016
AOA. Omollo
1,447 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court ordered land sellers to complete a 2006 sale, but refused extra damages because the buyer had already been using the property.

What this practically means

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Executive summary

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The Plaintiff sued the Defendants seeking specific performance of a Sale Agreement dated 21st July 2006 under which he purchased part of Plot No. 1771 (Original No. 284/146) Section III MN for Kshs. 600,000.00, plus exemplary damages and costs. He alleged that although a Deed Plan was obtained in 2008, the Defendants refused to sign the Transfer. The Defendants filed no statement of defence, but the 2nd Defendant testified that the money paid was a construction financing arrangement to be repaid through use of a shop, that the land was not registered in his name, and that his elder brother Salim forged the deed plan and sold the land. He also claimed he was drunk when he signed the agreement at Musinga & Company Advocates and believed it to be a lease. The court found the defence implausible and internally contradictory, noting the admission of the signature, the presence of an advocate at execution, and the absence of documents supporting the lease theory. The uncontradicted pleadings established the Plaintiff's case. The court allowed specific performance in terms of prayer (a) of the plaint, compelling the Defendants to execute the transfer. However, the claim for exemplary damages was dismissed because the Plaintiff had been in possession and running a business on the land since the sale, with no evidence of interrupted development. Costs were awarded to the Plaintiff, the Defendants having failed to execute the transfer documents despite service, thereby causing the Plaintiff to incur legal costs. Judgment was delivered at Mombasa on 17th February 2016 by A. Omollo, Judge.

Key legal issues

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01

Validity and enforceability of the Sale Agreement dated 21st July 2006

Holding

The Plaintiff proved the sale agreement and payment of Kshs. 600,000.00 purchase price; the 2nd Defendant's claim that he was drunk and thought he was signing a lease was implausible and self-contradictory

Reasoning

The 2nd Defendant admitted signing the agreement. His defence of drunkenness was inconsistent with his assertion that he knew he was signing a lease. Execution before an advocate supports an inference of knowledge of contents. The uncontradicted pleadings and failure to produce documents supporting the lease theory left the Plaintiff's case unimpeached.

p. 2
02

Whether specific performance should be granted

Holding

Yes - the claim was proved and the Defendants were ordered to sign the transfer in favour of the Plaintiff

Reasoning

The original parcel was subdivided and a deed plan processed for the portion sold, evidencing part performance. The Defendants failed to file a defence and the 2nd Defendant's evidence was internally contradictory. The court saw no reason to refuse the prayer for an order that the Defendants sign the transfer.

p. 3
03

Entitlement to exemplary damages

Holding

Refused - the Plaintiff had been in possession and use of the land since the sale, with no evidence of interruption by the Defendants

Reasoning

The plaint itself pleaded that the Plaintiff had taken possession and was conducting a flourishing business. Damages could not be awarded where the Plaintiff suffered no demonstrated loss or interruption of development.

p. 3

Legal principles established

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  • Facts pleaded by a plaintiff are deemed uncontradicted where the defendant files no statement of defence
  • Where an agreement is signed in the presence of an advocate, an inference arises that the signatory knew its contents
  • Costs follow the event

Court orders

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  1. 1.Specific performance granted - claim allowed in terms of prayer (a) of the plaint, compelling the Defendants to execute the transfer in favour of the Plaintiff
  2. 2.Prayer for exemplary damages dismissed
  3. 3.Plaintiff awarded costs of the suit

Authorities

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Cases cited (2)

  • Reliable Electrical Eng Ltd vs Mantrac Kenya Ltd
    (2006) eKLR
  • Richard Okemwa Vs Kenya Power & Lighting Ltd
    (2013) Eklr
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to land (Environment and Land Court Act)

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, "Francis Kisivo Wambua v Sheikha Ahmed Mohamed Al-Jabir & another [2016] KEELC 1139 (KLR)", Case Analysis (2016). ELC Case No. 121 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1139/eng@2016-02-17

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