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ELCPartially Allowed· [2017] KEELC 862 (KLR)

Albert Mwanga Kilinga v Judith Martha Onyango & 2 others [2017] KEELC 862 (KLR)

Environment and Land Court
9 October 2017
MNMwangi Njoroge
1,206 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land buyer who paid Kshs.480,000 for two acres got his money refunded instead of the land, because he couldn't prove required approvals were met.

What this practically means

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Executive summary

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The plaintiff sued three defendants, described as administrators of the Estate of Shadrack Onyango, seeking specific performance of an agreement dated 7/5/2007 under which the 1st and 2nd defendants agreed to sell him two acres hived off their entitlement in Bungoma/Naitiri/122 (later Bungoma/Naitiri/2405) for Kshs.480,000/=. In the alternative, he sought empowernment of the Deputy Registrar to execute transfer documents, or a refund, plus a permanent injunction, costs and interest. The 1st and 2nd defendants never entered appearance or defended the suit and did not attend the hearing; only the plaintiff testified. The 3rd defendant filed a defence denying participation in the agreement. The court found the 3rd defendant played no role, was not named in the sale agreement, received no purchase price, and was not alleged to have barred the plaintiff's entry, so the claim failed against him. The court held that specific performance is an equitable remedy granted only where the claimant has complied with all contractual terms, and since it was unclear whether conditions precedent, particularly Land Control Board consent, had been fulfilled, refund of the entire purchase price was the more appropriate remedy. Judgment was entered for the plaintiff against the 1st and 2nd defendants jointly and severally for Kshs.480,000/= with interest at court rates from the date of judgment until payment in full; the 1st and 2nd defendants were ordered to bear the suit's costs; the suit against the 3rd defendant was dismissed with no orders as to costs.

Key legal issues

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01

Liability of the 3rd defendant

Holding

The claim against the 3rd defendant fails; he was not a party to the agreement

Reasoning

The plaintiff never outlined any role the 3rd defendant played in the transaction. The sale agreement dated 7/5/2007 does not bear the 3rd defendant's name, he never received the purchase price, and he is not alleged to have refused the plaintiff entry, unlike the 2nd defendant.

p. 2
02

Whether specific performance should issue

Holding

Specific performance refused; refund of the purchase price awarded instead

Reasoning

Specific performance is an equitable remedy granted only in certain cases. Conditions precedent, notably the Land Control Board consent, could not be established on the pleadings, and the defendants did not appear. A refund of the full purchase price was the most appropriate remedy.

p. 3
03

Proof of the plaintiff's case against the 1st and 2nd defendants

Holding

Established on a balance of probabilities by uncontroverted evidence

Reasoning

The 1st and 2nd defendants did not enter appearance or file defences and did not attend the hearing. Only the plaintiff testified. His evidence that he paid Kshs.480,000/= as full purchase price for two acres was therefore unchallenged.

p. 2

Legal principles established

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  • Specific performance is an equitable remedy available only where the party seeking it has complied with all the terms of the contract

Court orders

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  1. 1.The 1st and 2nd defendants shall jointly and severally pay the plaintiff Kshs.480,000/= being refund of the purchase price for two acres out of Bungoma/Naitiri/2405
  2. 2.The 1st and 2nd defendants shall bear the costs of the suit
  3. 3.The plaintiff's suit against the 3rd defendant is dismissed with no orders as to costs
  4. 4.Interest on the sums awarded at court rates from the date of judgment till payment in full

Authorities

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Cases cited (1)

  • Mukika Chai Dzombo vs Coast Development Authority
    (2014) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a claim relating to land in Bungoma County (suit property Bungoma/Naitiri/122, later 2405)

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, "Albert Mwanga Kilinga v Judith Martha Onyango & 2 others [2017] KEELC 862 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/862/eng@2017-10-09

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