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Case Brief · caselaw.co.ke
ELCPartially AllowedELC 179 of 2017· [2017] KEELC 336 (KLR)

Kariuki Gakure v David Kariuki Ngari t/a Gakuyo Real Estate [2017] KEELC 336 (KLR)

Environment and Land Court
8 December 2017
1,210 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A buyer who paid Kshs.120,000 for a plot he never got got his money back with interest, but no written sale agreement meant no damages.

What this practically means

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Executive summary

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The Plaintiff sued the Defendant, a trader under the name Gakuyo Real Estate, claiming that between 7th and 14th November 2008 the Defendant sold him a plot known as Thika Municipality/Block 12/1662/Kianjau B for Kshs.120,000/=, which he paid in full in two instalments evidenced by receipts and a certificate of ownership No.097. He sought an order for the Defendant to point out the plot and put him in possession and furnish a title, or in the alternative a refund of Kshs.120,000/=, plus general damages for breach of contract, costs and interest. The Defendant, though served, did not enter appearance or file a defence, and the suit proceeded exparte before L. Gacheru J. The court accepted that the Plaintiff paid Kshs.120,000/= to Gakuyo Real Estate. However, relying on Section 3(3) of the Law of Contract Act, it held that a contract for the disposition of an interest in land must be in writing, signed and attested, and the Plaintiff had not produced the sale agreement. Without it the court could not determine the real description of the property contracted for, nor find that the Defendant breached the agreement, and general damages for breach of contract were refused. Applying Section 107 of the Evidence Act on burden of proof, the court nonetheless found that payment was proved and that, since the Plaintiff was never shown the plot, he was entitled to a refund. Judgment was entered in terms of prayer (b) only, with interest from the date of filing and costs to the Plaintiff. The claim was therefore partially allowed.

Key legal issues

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01

Compliance with the statutory formalities for a contract for sale of land

Holding

The Plaintiff failed to produce a written sale agreement; without it the court could not ascertain the agreed property description or find a breach

Reasoning

Section 3(3) of the Law of Contract Act requires contracts for the disposition of an interest in land to be in writing, signed by all parties and attested by a witness. The Plaintiff produced receipts and a certificate of ownership but no sale agreement. The court therefore could not hold with certainty what property was contracted for or that the Defendant breached it, defeating the claim for specific performance and general damages.

p. 2
02

Entitlement to refund of purchase price

Holding

The Plaintiff proved payment of Kshs.120,000/= through receipts and was entitled to a refund since he was never put into possession of the plot

Reasoning

Although the written contract was absent, evidence in the form of two receipts and a certificate of ownership proved payment of the full purchase price. Since the Plaintiff alleged he was never shown the plot he purchased (beacons having been removed), the court found he was entitled to refund under prayer (b), proved on a balance of probabilities.

p. 3

Legal principles established

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  • A contract for the disposition of an interest in land must be in writing, signed by all parties and attested as required by Section 3(3) of the Law of Contract Act
  • He who alleges must prove his allegations as provided by Section 107 of the Evidence Act
  • A party who pays a purchase price but was never shown the plot purchased is entitled to a refund of the purchase price

Court orders

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  1. 1.Judgment entered for the Plaintiff against the Defendant in terms of prayer (b) of the Plaint, being refund of Kshs.120,000/= being the purchase price
  2. 2.Interest on the refund from the date of filing of the suit until payment in full
  3. 3.Costs of the suit to the Plaintiff

Authorities

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Legislation

  • Law of Contract ActSection 3(3)
  • Evidence ActSection 107
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act (original jurisdiction over disputes relating to land contracts)

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, "Kariuki Gakure v David Kariuki Ngari t/a Gakuyo Real Estate [2017] KEELC 336 (KLR)", Case Analysis (2017). ELC 179 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/336/eng@2017-12-08

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