Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCOtherMalindi ELC Case (Plaint dated 28th March 2013)· [2017] KEELC 1951 (KLR)

Kadenge Baya Mwero & another v Barka Swaleh Awadh & another [2017] KEELC 1951 (KLR)

Environment and Land Court
19 September 2017
JOJ.O. Olola
1,378 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

Land buyers who paid in full and got documents won their plots after the registered owners skipped their own hearing.

What this practically means

#

Executive summary

#
By a plaint dated 28th March 2013, two plaintiffs sought a permanent injunction restraining the two defendants from dealing with Plot Kilifi/Ngerenyi/736 at Kokotoni, Ngerenya, together with vacant possession and costs. The plaintiffs alleged the defendants' deceased husbands had only paid part of the purchase price and had colluded to remain on the land. Both defendants filed separate defences and counterclaims. The 1st Defendant claimed her late husband bought 4 acres from the 1st Plaintiff under an agreement dated 29th October 1990 for Kshs 50,000/=, produced receipts and a Land Control Board consent, and sought specific performance. The 2nd Defendant claimed 8 acres purchased by her late husband under agreements of 1st June 1983 and later, with LCB consents of 1988, and sought a declaration of ownership by adverse possession and registration under Section 38(2) of the Limitation of Actions Act and Section 28 of the Land Registration Act. At the hearing on 15th March 2017 neither plaintiff nor their advocates appeared; the court dismissed the plaintiffs' suit for want of prosecution and the defendants testified uncontroverted. The court found both defendants had completed their obligations under their respective sale agreements, that LCB consents had been obtained, and that the 1st Plaintiff was obliged to subdivide and transfer the portions. Judgment was entered for both defendants as prayed in their counterclaims, with costs.

Key legal issues

#
01

Proof of the Defendants' counterclaims

Holding

Both Defendants proved their counterclaims on a balance of probabilities, having produced sale agreements, receipts, letters of administration and Land Control Board consents

Reasoning

The evidence of the two Defendants was uncontroverted. The 1st Defendant produced a sale agreement dated 29th October 1990, four payment receipts and LCB consent; the 2nd Defendant produced agreements and LCB consents for 6 acres and 2 acres. The court found both purchasers had completed their obligations and the 1st Plaintiff had failed to subdivide and transfer. Counterclaims therefore succeeded.

p. 3
02

Specific performance of land sale agreements

Holding

The 1st Plaintiff was bound to complete the sale by subdividing and transferring the respective portions to the Defendants as nominees of the original purchasers

Reasoning

The court found separate sale agreements existed between the Plaintiffs and the Defendants' deceased husbands; requisite Land Control Board consents were obtained, including consent for subdivision into 736A (4 acres) and 736B (8 acres). Having been paid in full, the vendor was obliged to complete the transfers.

p. 3

Legal principles established

#
  • A plaintiff who fails to attend the hearing after proper notice risks dismissal of the suit, and defendants may proceed to prove their counterclaims
  • A vendor who has received full performance must complete the transfer by subdividing and transferring the sold portions

Court orders

#
  1. 1.Plaintiffs' suit dismissed for want of prosecution on 15th March 2017
  2. 2.Judgment entered for the 1st and 2nd Defendants as prayed in their respective Counterclaims
  3. 3.Specific performance of the 1st Defendant's sale agreement of 29th October 1990 over 4 acres
  4. 4.2nd Defendant declared entitled to 8 acres of Plot Kilifi/Ngerenyi/736 by adverse possession with registration/proprietorship orders as prayed
  5. 5.Costs of the suit and counterclaims awarded to the Defendants

Authorities

#

Legislation

  • Limitation of Actions ActSection 38(2)
  • Land Registration Act No. 3 of 2012Section 28
Jurisdiction invoked
Original civil jurisdiction over land claims and counterclaims (Environment and Land Court)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kadenge Baya Mwero & another v Barka Swaleh Awadh & another [2017] KEELC 1951 (KLR)", Case Analysis (2017). Malindi ELC Case (Plaint dated 28th March 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1951/eng@2017-09-19

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