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ELCPartially AllowedOriginating Summons dated 9th February 2015· [2016] KEELC 1161 (KLR)

Balcon Housing Company Ltd v Ann Kariri Kiarie (as administrator of the estate of the late Jacinta Njeri Kiarie) (Environment & Land Case 100 of 2015) (Environment and Land) [2016] KEELC 1161 (KLR)

Environment and Land Court
29 January 2016
MGMary M. Gitumbi
1,037 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The Plaintiff, through an Originating Summons dated 9th February 2015, sought an order compelling the Defendant, the administratrix of the estate of the late Jacinta Njeri Kiarie, to execute transfer instruments for 22 acres to be excised from L.R. No. 10823/21 pursuant to a Sale Agreement dated 21st May 2009. The Plaintiff averred that an offer letter dated 26th March 2009 was accepted on 3rd April 2009, that the agreed price of Kshs. 5,500,000/- was partially paid (Kshs. 3,800,000/-), and that it was given vacant possession pending completion, which could not occur because the vendor died on 19th April 2010. The Defendant, though served, neither entered appearance nor filed a response, and the matter proceeded by way of the Plaintiff's written submissions. The Plaintiff relied on authority that a personal representative steps into the shoes of the deceased vendor and may be compelled to specifically perform the contract. The court accepted that specific performance is a discretionary equitable remedy, but declined to grant it because the agreement was for a portion of a larger parcel and no evidence showed that the deceased had subdivided and registered the portion to be sold, contrary to the scheme of section 42 of the Land Registration Act. Instead, exercising the discretion invoked by the Plaintiff's alternative prayer, the court ordered the Defendant to refund the Kshs. 3,800,000/- paid and awarded the costs of the suit to the Plaintiff. Judgment was delivered at Nairobi on 29th January 2016 by Mary M. Gitumbi, J.

Key legal issues

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01

Whether specific performance of the sale agreement should issue against the administratrix of the deceased vendor's estate

Holding

Specific performance was refused because the portion of land agreed to be sold was unascertainable, not having been subdivided and registered as required by section 42 of the Land Registration Act

Reasoning

The court accepted, per the authorities relied on by the Plaintiff, that a personal representative steps into the shoes of the deceased vendor and can be compelled to perform the contract. However, the agreement was for a portion of a larger parcel (22 acres out of L.R. No. 10823/21) and there was no evidence of subdivision and registration of the portion sold. In the absence of such evidence, an order of specific performance cannot issue. The court instead exercised its discretion to order a refund of the purchase price paid.

p. 2

Legal principles established

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  • No part of land comprised in a register shall be transferred unless the proprietor has first subdivided the land and duly registered each new subdivision (section 42, Land Registration Act)
  • Specific performance is a discretionary equitable remedy granted only on well settled principles

Court orders

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  1. 1.The Respondent do refund to the Applicant the sum of Kshs. 3,800,000/- paid to the Deceased for the suit property
  2. 2.The costs of the suit are awarded to the Applicant

Authorities

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Legislation

  • Land Registration ActSection 42

Cases cited (2)

  • Sammy Some Kosgei vs Grace Jelel Boit
    (2013) eKLR
  • Stephen Kibet Malakwen vs. Benson Gateca Mbugua
    [2014] eKLR
Jurisdiction invoked
Original civil jurisdiction to determine the Originating Summons seeking specific performance of a contract for the sale of land

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, "Balcon Housing Company Ltd v Ann Kariri Kiarie (as administrator of the estate of the late Jacinta Njeri Kiarie) (Environment & Land Case 100 of 2015)  (Environment and Land) [2016] KEELC 1161 (KLR)", Case Analysis (2016). Originating Summons dated 9th February 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1161/eng@2016-01-29

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