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ELCPartially AllowedKitale ELC (as stated in judgment; suit commenced by plaint dated 18th May 2017)· [2018] KEELC 37 (KLR)

Benard Waliaula v Denis Magas Kubkway [2018] KEELC 37 (KLR)

Environment and Land Court
30 July 2018
MNMwangi Njoroge
949 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 for a plot the seller didn't truly own won back his money, legal fees and rates, plus interest.

What this practically means

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Executive summary

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The plaintiff sued by plaint dated 18th May 2017 seeking Kshs.480,000/=, costs and interest, alleging that the defendant sold him Plot No. 31 Endebess Trading Centre in Trans-Nzoia County by agreement dated 8th May 2014 for Kshs.400,000/=, which he paid in full. After taking possession and developing the plot, he was confronted by James Cheminingwa, who claimed ownership with an allotment letter for Plot 'C' Endebess Trading Centre. The plaintiff then filed Kitale ELC No. 179 of 2016 against James, incurring Kshs.60,000/= in legal fees and Kshs.20,000/= in rates and rent, and later concluded that the defendant had defrauded him by selling another person's plot. The defendant was served on 30th June 2017 but never entered appearance, filed no defence, and was absent at the formal proof hearing on 4th July 2018, at which Paul Abedi Waliaula, the plaintiff's attorney under a power of attorney, testified and produced the agreement, payment voucher, receipt for legal fees and documents from the earlier suit. The court found the plaintiff's evidence uncontroverted, inferred from the defendant's refusal to assist or defend that he knew from the outset his claim to ownership was suspect, and held the claim proved on a balance of probabilities. The court ordered refund of the purchase price (Kshs.400,000/=), legal fees (Kshs.60,000/=) and rates (Kshs.20,000/=), with interest at court rates from 8th May 2014. Mwangi Njoroge, Judge, delivered the judgment at Kitale on 30th July 2018.

Key legal issues

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01

Breach of contract by seller of land where seller's title was defective

Holding

The plaintiff proved on a balance of probabilities that the defendant sold him a plot he knew was not his, entitling him to refund of the purchase price and ancillary expenses

Reasoning

The plaintiff's evidence was uncontroverted as the defendant never entered appearance, filed no defence and was absent at formal proof. The purchaser paid Kshs.400,000/= and took possession, only to be confronted by James Cheminingwa holding an allotment letter. The seller refused to assist clarify ownership and did not defend the suit, conduct from which the court inferred he knew his claim was suspect from the beginning.

p. 1
02

Refund of expenses incurred because of the defective sale

Holding

The defendant was ordered to refund legal fees of Kshs.60,000/= incurred in Kitale ELC No. 179/2016 and Kshs.20,000/= in rates and rent paid to the county government, with interest from 8/5/2014

Reasoning

These sums were pleaded and proved as losses directly flowing from the defendant's breach of clause 5 of the agreement: legal costs of the suit against the true owner and annual rates and rent paid to Trans-Nzoia County Government. The court treated them as recoverable consequential losses alongside the purchase price.

p. 2

Legal principles established

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  • A seller who knows of a competing third-party ownership claim and refuses or neglects to assist the purchaser, and who fails to defend the purchaser's suit, is taken to have known his title was suspect from the outset

Court orders

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  1. 1.The defendant shall refund the plaintiff Kshs.400,000/= being the purchase price paid for the suit land
  2. 2.The defendant shall refund the plaintiff Kshs.60,000/= paid as legal fees in Kitale ELC No. 179/2016
  3. 3.The defendant shall refund the plaintiff Kshs.20,000/= being rents and rates paid to the County Government of Trans-Nzoia
  4. 4.The defendant shall pay interest on (a), (b) and (c) at court rates with effect from 8/5/2014
  5. 5.It is so ordered (dated, signed and delivered at Kitale on 30th July 2018)
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a land sale contract dispute (claim for refund of purchase price for a plot within Trans-Nzoia County)

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, "Benard Waliaula v Denis Magas Kubkway [2018] KEELC 37 (KLR)", Case Analysis (2018). Kitale ELC (as stated in judgment; suit commenced by plaint dated 18th May 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/37/eng@2018-07-30

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