Nancy Wanjiru Githua Njaaga v Margaret Njeri Mukirai [2017] KEELC 1717 (KLR)

Environment and Land Court

18 September 2017

KBK. Bor

789 words in judgment

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The bottom line

A Nairobi buyer who paid her deposit and was ready to complete forced the seller to transfer the land, because the seller never formally responded to the claim.

What this practically means

Executive summary

The Plaintiff filed an Originating Summons on 20/7/2010 seeking a declaration that the Defendant sold Plot No. 5691, a subdivision of Dagoretti/Riruta/1591, to her under a sale agreement dated 25/11/2008, and that she had discharged her obligations under that agreement. The agreed purchase price was Kshs. 1,250,000/=, with a Kshs. 300,000/= deposit paid and the balance of Kshs. 950,000/= payable upon transfer and charge. The Plaintiff took possession and pursued completion, with the Co-operative Bank's advocates requesting title documents, Land Control Board consent and a rates clearance certificate, but the Defendant failed to supply them. A demand letter and a Chief's summons went unheeded, and the Plaintiff obtained interim injunctive relief on 20/7/2010, extended on 4/10/2010. At trial the Defendant's advocate raised, in cross-examination and submissions, a trust claim for her 10 adult children and the absence of a Kikuyu translation of the agreement. The court held that the facts pleaded by the Plaintiff were not controverted - the Defendant having filed no Replying Affidavit - and were therefore deemed admitted under Order 2 Rule 11 of the Civil Procedure Rules. Applying the principle that a party seeking specific performance must show performance or readiness to perform, the court found the Plaintiff had paid the deposit and sought bank financing, and that the Defendant frustrated completion. Judgment was entered for the Plaintiff with costs.

Key legal issues

Whether the Plaintiff proved her entitlement to specific performance

Holding

Yes - the Plaintiff proved her case on a balance of probabilities and discharged her obligations under the sale agreement

Reasoning

The Plaintiff paid the deposit of Kshs. 300,000/= and took steps to raise the balance through a Co-operative Bank charge, following the transaction to the point of registration of mutation forms. The Defendant failed to supply the documents sought by the Bank's advocates, frustrating completion. The facts pleaded were uncontroverted, the Defendant having filed no Replying Affidavit, so they were deemed admitted under Order 2 Rule 11.

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Whether the Defendant's plea of a resulting trust for her adult children and lack of translation of the agreement to Kikuyu defeated the claim

Holding

These issues did not defeat the claim; the Defendant's case failed for want of controversion of the pleaded facts

Reasoning

The trust claim and translation objection were raised for the first time in cross-examination and written submissions, not in any pleading. The Defendant filed no Replying Affidavit or defence traversing the Plaintiff's pleaded facts, which were therefore deemed admitted under Order 2 Rule 11 of the Civil Procedure Rules. The court accordingly accepted the Plaintiff's uncontroverted account of the transaction.

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Legal principles established

Allegations of fact not traversed in pleadings are deemed admitted under Order 2 Rule 11 of the Civil Procedure Rules
A party seeking specific performance must demonstrate that she has performed or is ready and willing to perform the terms of the agreement

Court orders

1.An order of specific performance of the sale agreement dated 25/11/2008 compelling the Defendant to transfer the Suit Property to the Plaintiff
2.Costs of the suit to the Plaintiff

Authorities

Legislation

Civil Procedure RulesOrder 2 Rule 11

Cases cited (1)

Gurdev Singh & Narinder Singh Ghatora as Trustees of Ramgharia Institute of Mombasa v Abubakar Madhubuti
[1997] eKLR

Jurisdiction invoked: Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (land and environment disputes) - invoked by filing an Originating Summons in the ELC

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Nancy Wanjiru Githua Njaaga v Margaret Njeri Mukirai [2017] KEELC 1717 (KLR)", Case Analysis (2017). ELC. Case No. 349 of 2010 (O.S.). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1717/eng@2017-09-18

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