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ELCPartially AllowedNairobi/Block 55/202/139 Originating Summons dated 7th June 2013· [2017] KEELC 2637 (KLR)

Edward Hestings Niconary Okida v Telposta Pension Scheme Registered Trustees & another [2017] KEELC 2637 (KLR)

Environment and Land Court
27 June 2017
3,434 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Nairobi court ordered a long-term occupant with no tenancy agreement to vacate, and forced the seller to hand over the property to the buyer who had paid in full.

What this practically means

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Executive summary

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The Plaintiff brought an Originating Summons dated 7th June 2013 seeking specific performance of an agreement for sale dated 5th December 2009 over Title No. Nairobi/Block 55/202/139, mesne profits at Kshs. 20,000/= per month from April 2010, and, in the alternative, a refund of the purchase price of Kshs. 2,600,000/= with interest at 30% per annum. The parties agreed that the suit be determined on affidavit evidence and written submissions. The Defendant admitted the agreement and receipt of the full purchase price, and that it had transferred the property to the Plaintiff but not delivered vacant possession, blaming a sitting tenant. The Defendant took out third party proceedings against Elizabeth Nyambura Mwaura, a former Telkom Kenya/Postal Corporation employee who had occupied the property since 1983 and claimed a right of first refusal and continued occupation pending an offer to purchase. The court found that the third party established no legal interest: she produced no agreement, her rent receipts were paid to her former employer until June 2006, and she had occupied for over 11 years without paying rent. She was therefore ordered to vacate within 60 days and to pay the Defendant mesne profits of Kshs. 6,000/= per month from April 2010. With the obstacle removed, the court granted specific performance, ordering the Defendant to deliver vacant possession to the Plaintiff within 30 days of receiving the premises, and to pay the Plaintiff mesne profits of Kshs. 6,000/= per month from April 2010. The higher rate claimed was rejected for want of evidence. The Defendant bears the costs of the suit; the third party bears the costs of the third party notice.

Key legal issues

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01

Whether the Plaintiff was entitled to specific performance of the agreement for sale

Holding

Yes. The Plaintiff had performed his part of the agreement by paying the full purchase price, satisfying the conditions for specific performance, and the hardship obstacle fell away once the third party was ordered to vacate

Reasoning

Citing Gurdev Singh Birdi, the court held that a claimant must show performance or willingness to perform. It was not disputed the Plaintiff paid the full purchase price. Specific performance being discretionary, the court considered hardship under Chitty on Contracts as cited in Amina Abdulkadir Hawa. Since the third party had no right to remain in occupation and would be compelled to vacate, no hardship would be occasioned and the order could be granted.

p. 3
02

Whether the third party had a right to continue occupying the suit property

Holding

No. She established no legal interest, no tenancy agreement with the Defendant, and had occupied without paying rent for over 11 years

Reasoning

The suit property was registered in the Defendant's name, which was entitled to sell and did transfer it to the Plaintiff. The third party alleged a right of first refusal and a right to remain as a tenant awaiting an offer, but produced no evidence of any agreement and could not identify with whom she made it. Her rent receipts were paid to her former employer, not the Defendant, and she paid no rent after June 2006.

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Whether the Plaintiff was entitled to mesne profits and at what rate

Holding

Yes, from April 2010 when possession should have been delivered, but at Kshs. 6,000/= per month rather than the Kshs. 20,000/= claimed, as no evidence supported the higher rate

Reasoning

The Defendant was to deliver vacant possession upon receipt of the full purchase price, which was paid on 9th April 2010, so the claim for mesne profits from April 2010 was well founded. However, the Plaintiff adduced no evidence of market rent. The only figure on record was the Kshs. 6,000/= per month the third party had paid between August 2005 and June 2006, which the court adopted as the reasonable rent.

p. 5

Legal principles established

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  • A party seeking specific performance must demonstrate performance or willingness to perform all terms of the agreement
  • Specific performance is a discretionary remedy that may be refused on grounds of severe hardship, but the discretion is governed by fixed rules and principles
  • A party in occupation without payment of rent and without a proven legal interest has no right to continue in occupation

Court orders

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  1. 1.The 3rd party shall vacate and handover possession of all that property known as Title No. Nairobi/Block 55/202/139 to the Defendant within sixty (60) days from the date hereof
  2. 2.The 3rd party shall pay to the Defendant as mesne profits a sum of Kshs. 6,000/= per month from the month of April 2010 until vacant possession is delivered to the Defendant
  3. 3.The 3rd party shall bear the cost of the 3rd party Notice
  4. 4.The Defendant shall handover vacant possession of the suit property to the Plaintiff within (30) days of receipt of the premises from the 3rd party
  5. 5.The Defendant shall pay to the Plaintiff a sum of Kshs. 6,000/= as mesne profits with effect from April 2010 until vacant possession is delivered to the Plaintiff
  6. 6.The defendant shall bear the cost of the suit

Authorities

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Cases cited (2)

  • Gurdev Singh Birdi & Another vs. Abubakar Madhbuti
    Court of Appeal, Civil Appeal No. 165 of 1996, [1997] e KLR
  • Amina Abdulkadir Hawa vs. Rabinder Nath Anand & Another
    [2012] e KLR
Jurisdiction invoked
Original jurisdiction over disputes relating to land (Environment and Land Court)

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, "Edward Hestings Niconary Okida v Telposta Pension Scheme Registered Trustees & another [2017] KEELC 2637 (KLR)", Case Analysis (2017). Nairobi/Block 55/202/139 Originating Summons dated 7th June 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2637/eng@2017-06-27

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