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ELCAllowed· [2017] KEELC 424 (KLR)

Winnie Chematia Settim & another v Shadrack Kipleting Kosgei & another [2017] KEELC 424 (KLR)

Environment and Land Court
14 December 2017
MOM.A ODENY
669 words in judgment
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The bottom line

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A Kenyan land seller who showed the buyers never paid the full price won cancellation of the sale, possession of the land, and costs.

What this practically means

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Executive summary

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By a plaint dated 6th July 2016, the plaintiffs sued the defendants jointly and severally for vacant possession of plot No. 19, part of parcel of land No. CHEPSIRIA FARM LR. NO. 4482, for breach of contract, cancellation of the sale agreement dated 30th April 2015, a permanent injunction and eviction orders, plus costs. The defendants were served with summons but neither entered appearance nor filed a defence, so the suit proceeded by way of formal proof. On 18th October 2017 the 1st plaintiff testified on her own behalf and on behalf of the 2nd plaintiff, her daughter, stating she had authority to do so. She proved a sale agreement dated 30th April 2015 for ¼ acre at a purchase price of Kshs. 1,050,000, under which the defendants paid Kshs. 700,000 on execution, leaving Kshs. 350,000 due on 31st July 2015, which was never paid. The defendants nonetheless remained in occupation of the land. A demand letter dated 7th October 2015 was produced as an exhibit. Counsel for the plaintiffs filed written submissions, contending that the evidence was uncontroverted and the case proved. The court held that the plaintiffs had proved their case on a balance of probabilities and entered judgment against the defendants jointly and severally. The court cancelled the sale agreement, ordered the defendants to give vacant possession within 45 days of service, with eviction in default, issued a permanent injunction against trespass or interference with the suit land, and awarded the plaintiffs costs. Judgment dated and delivered at Eldoret on 14th December 2017 by M.A Odeny, J.

Key legal issues

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01

Proof of breach of a land sale agreement in formal proof proceedings

Holding

The plaintiffs proved on a balance of probabilities that the defendants failed to pay the balance of the purchase price, entitling them to cancellation of the agreement, vacant possession and a permanent injunction.

Reasoning

The 1st plaintiff, with authority to testify for the 2nd plaintiff, produced the sale agreement of 30th April 2015 showing a purchase price of Kshs. 1,050,000, of which Kshs. 700,000 was paid, leaving Kshs. 350,000 due on 31/7/15 which was never paid. A demand letter of 7/10/15 was also produced. Service was effected but the defendants neither entered appearance nor filed a defence, so the evidence stood uncontroverted.

p. 2

Legal principles established

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  • Uncontroverted evidence produced through formal proof, if credible, proves a claim on a balance of probabilities.

Court orders

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  1. 1.Cancellation of the sale agreement dated 30th April 2015
  2. 2.Defendants to give vacant possession of plot No. 19 part of parcel of land No. CHEPSIRIA FARM LR. NO. 4482 within 45 days upon service of the judgment or decree, failing which an order of eviction be issued
  3. 3.A permanent injunction restraining the defendants, their agents/servants from trespassing or interfering with the suit land
  4. 4.Defendants jointly and severally to pay the costs of the suit
Jurisdiction invoked
Not expressly stated; Environment and Land Court jurisdiction over land disputes

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, "Winnie Chematia Settim & another v Shadrack Kipleting Kosgei & another [2017] KEELC 424 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/424/eng@2017-12-14

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