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ELCPartially AllowedNot stated in the judgment (filed 16/10/2012)· [2017] KEELC 1321 (KLR)

Humphrey Ihugo Kang’ethe v John Mutisya Mumo [2017] KEELC 1321 (KLR)

Environment and Land Court
14 August 2017
4,624 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court ordered a land seller to complete the sale, but only after the buyer paid the remaining Kshs.420,000 balance of the purchase price.

What this practically means

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Executive summary

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The plaintiff sued for specific performance of sale agreements: a 2009 sale of LR Donyo Sabuk/Komarock Block 1/20030 (10 acres) for Kshs.3,000,000/=, and a further agreement of 23rd March 2011 selling Plot No. C14 at Kimathi Estate, Nairobi (a portion of LR 209/7383) for Kshs.4,000,000/=, with the Kshs.3,000,000/= already paid credited to the latter purchase. The Komarock transaction failed because 8 of the 10 acres were subject of pending litigation in Machakos HCCC 129/2001, prompting the substitution of the Nairobi property. The defendant filed a bare denial, alleging the suit was incompetent, fatally defective and brought by an impersonator, but called no evidence and raised the alleged defects only in submissions at the close of trial. The court held the objections were an ambush, contrary to Article 159(2)(d), and without merit. On the evidence, including the agreement executed before an advocate (P. Exhibit 1) and acknowledgments of payment (P. Exhibits 2 and 3), corroborated by the defendant's own son and the advocate who drew the agreement, the court found both agreements existed and that the plaintiff had paid Kshs.3,580,000/= in total, leaving Kshs.420,000/= of the Kshs.4,000,000/= consideration. The vendor was in breach of clause 10 for failing to release the transfer documents. The court ordered specific performance conditioned on the plaintiff depositing the balance of Kshs.420,000/= into court, failing which the Deputy Registrar would execute the transfer documents, with the deposit released to the defendant on transfer, and the defendant to bear the costs of the suit. The refund alternative was not granted.

Key legal issues

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01

Whether the suit was incompetent or fatally defective for failure to plead the place of the cause of action, property description under Order 4 Rule 3, and Order 4 Rule 1(f) compliance

Holding

The objections failed; the properties were sufficiently described and the omissions were formal and not fatal, particularly as the objections were raised only in submissions at the tail end of the trial

Reasoning

The defence pleaded that a preliminary objection would be raised but never raised it before hearing, springing it in submissions filed after the plaintiff's. The court held this conduct amounted to an ambush contrary to Article 159(2)(d). On the merits, the place of occurrence was in any event evident (Machakos and Nairobi), the two properties were properly described in the plaint, and the plaintiff himself had brought the action. Precision in pleadings does not demand exactitude.

p. 2
02

Whether sale agreements existed over the Komarock land and Plot C14 Kimathi Estate

Holding

Both agreements were proved: the Komarock land was sold for Kshs.3,000,000/= in 2009, and when that transaction failed owing to pending litigation over 8 of the 10 acres, the parties agreed on 23/3/2011 to sell the Nairobi house for Kshs.4,000,000/=, crediting the Kshs.3,000,000/= paid

Reasoning

The plaintiff produced the agreement dated 23/3/2011 executed before an advocate, signed by both parties with witnesses, together with acknowledgments of receipt of Kshs.270,000/= and Kshs.110,000/=. The plaintiff's evidence was unshaken and was corroborated by PW2 (the defendant's son), PW3, PW4 (who drew the agreement) and PW5. The defendant called no evidence and his defence was a bare denial, so nothing controverted the plaintiff's case.

p. 6
03

Whether the plaintiff paid the consideration

Holding

The plaintiff paid a total of Kshs.3,580,000/= (Kshs.3,000,000/= plus Kshs.200,000/= acknowledged in the agreement and Kshs.270,000/= and Kshs.110,000/= in the acknowledgments), leaving Kshs.420,000/= of the Kshs.4,000,000/= consideration unpaid; the vendor was in breach of clause 10 for failing to release transfer documents

Reasoning

P. Exhibits 1, 2 and 3 were found to be credible evidence of payments. The defendant offered no explanation as to how copies of his identity card came into the plaintiff's possession, and PW4 confirmed the payments made at execution. Kshs.580,000/= of the additional Kshs.1,000,000/= had been paid, yet the vendor had not released the documents required under clause 10, amounting to breach of the agreement.

p. 7
04

What remedy the plaintiff was entitled to

Holding

Specific performance of the 23/3/2011 agreement, conditioned on the plaintiff first depositing the balance of Kshs.420,000/= into court, with the Deputy Registrar empowered to execute the transfer documents on the defendant's default, and costs to the plaintiff

Reasoning

Since the plaintiff admitted having paid only part of the Kshs.4,000,000/= consideration, it would be improper to order specific performance without requiring payment of the outstanding balance first. The remedy chosen ensures each party receives what the agreement envisaged: the plaintiff gets transfer of House C14 and the defendant receives the balance of Kshs.420,000/=, released to him upon transfer.

p. 7

Legal principles established

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  • A preliminary objection must be specific as to the objection to be raised at the hearing, and defects not raised as a preliminary objection before hearing cannot be pursued for the first time in submissions
  • A party who alleges must prove his averment on a balance of probabilities; a bare denial unsupported by evidence fails, and material gathered in cross-examination cannot substitute for a defence case
  • Specific performance will not be ordered without requiring the purchaser to pay the outstanding balance of the purchase price

Court orders

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  1. 1.The plaintiff shall pay into court the sum of Ksh.420,000/= being the balance of the consideration
  2. 2.Upon the deposit of that sum, the defendant shall execute and furnish the plaintiff with all documents necessary to effect transfer of House No. C14 Kimathi Estate, Nairobi, being a portion of LR. No. 209/7383 measuring 0.0208 ha., identified as No C14 on the Block Plan registered in the Registry of Documents Nairobi in Volume D1 Folio 38/166 File D11 Kimathi Estate, in default of which the Deputy Registrar of the court shall execute all necessary documents to effect the transfer
  3. 3.Upon transfer of the property, the sum of Ksh.420,000/= deposited in court shall be released to the defendant
  4. 4.The defendant shall bear the costs of the suit

Authorities

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Legislation

  • Civil Procedure RulesOrder 4 Rule 3
  • Civil Procedure RulesOrder 4 Rule 1(f)
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (2)

  • Mumo Matemu versus Trusted Society of Human Rights Alliance
    eKLR
  • John Wainaina Kagwe –vs- Hussein Dairy Ltd
    2012 eKLR, Civil Appeal No. 215 of 2010
Jurisdiction invoked
Original civil jurisdiction over a claim for specific performance relating to land (the suit property is situate at Kimathi Estate in Nairobi)

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, "Humphrey Ihugo Kang’ethe v John Mutisya Mumo [2017] KEELC 1321 (KLR)", Case Analysis (2017). Not stated in the judgment (filed 16/10/2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1321/eng@2017-08-14

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